No. 2,179.

#### STEFFANO ROVEGNO, Plaintiff and Respondent, *v.*ANGELLO DEFFERARI, Defendant and Appellant.

Contbact. — Supposed.—Mutual Misundeestanding of Dabties. — A sup-posd contract of sale when there is a mutual misunderstanding hetwoon the parties as to the amount of the consideration to he paid, is no contract, and a subsequent sale by the supposed seller to a third party, is valid.

Appeal from tbe District Court of tbe Fourth Judicial District, City and County of San Francisco.

This is an action for tbe dissolution of an alleged partnership between tbe plaintiff and defendant, a division of tbe accrued profits of tbe concern, and a sale of tbe partnership assets and distribution of tbe proceeds between tbe alleged partners in proportion to tbeir respective interests.

Judgment was rendered for tbe plaintiffs Jbu accordance witb tbe prayer of tbe complaint, defendant moved for a new trial wbicb motion was denied by tbe Court, and defendant appealed.

Tbe other facts are stated in tbe opinion.

*N. B. Mulville,*for Appellant.

Tbe complaint avers partnership between plaintiff and defendant wbicb is not sustained.

Tbe pleadings admit that defendant was and is in possession, and bad and has exclusive possession of tbe said third interest.

Tbe offer of sale made by Cassinelli to defendant on 18tb of March, plaintiff assenting to same, and defendant accepting said offer by paying $200, and agreeing to pay balance in two or three days, was a good sale, and vested *460the title to tbe third interest in defendant — nothing more could then be done to make a more effectual sale, defendant being in possession. Plaintiff was bound thereby, having assented to same.

Oassinelli was the vendor whom defendant bought from, and to whom defendant owed the balance, viz, $650.

The bill of sale from Oassinelli to plaintiff made the 22d of March, was not an assignment of said debt, but farther establishes the fact that Oassinelli owned said third interest on 18th of March, when he sold same to defendant.

If defendant misunderstood the terms of the sale — namely, the balance due — it would not vitiate same. Oassinelli did not try to annul or rescind the sale, and no act of defendant could do so. (See *Miller*v. *Steen,*30 Oal. 402 ; 34 Oal. 139.)

The theory that the minds of Oassinelli and defendant never met, is not tenable; for if defendant believed he was buying for a less sum than $850, it does not appear he acted on said belief, by claiming his money back, or demanding a recision of the sale. Defendant only refused to pay plaintiff said balance, which he had a right to do.

It does not appear that defendant had any misunderstanding in relation to payment, or otherwise, with Oassinelli, his immediate vendor, or that Oassinelli wished or tried to rescind the sale, which could be done in no other manner than refunding to defendant the $200 paid. Oassinelli could not keep defendant’s money and recover the property, also. *(Miller*v. *Stein, supra.)*

Plaintiff was not authorized to receive of defendant the balance, viz, $650; defendant could only safely pay said sum to Oassinelli.

*W. G. Burnett,*for Respondent.

It seems to us, that the true answer to One question, settles this case, viz: did appellant purchase Oassinelli’s one third interest ? He did not.

The minds of the parties did not meet. There was an *461attempt, and a failure, to agree upon a pric9. There was a misunderstanding in that particular. That misunderstanding is *fatal*because it was *mutual,*and not the result of deceit.

Eespondent did purchase, and appellant is not in a position to question his right of purchase.

The fact that appellant was in possession at the time of his negotiation with Cassinelli, is not such a circumstance as would make that a contract which the parties had not agreed upon. His possession was only the possession of the copartnership, and inured *as much to the benefit of Oas-sinelli or his vendee as to his own,*and was *their*possession as well as his own.

Appellant’s brief seems to go upon the idea, that appellant was in the position of a vendee, under a contract for a conveyance; and in that view, that his possession may help him out.

Unfortunately for that position, there is first, no contract; and, second, no possession except a joint possession, which the law would not permit him to lay down at his pleasure.

Appellant owed respondent, or Cassinelli, nothing; not $650 balance, because he had not promised to pay it; not $550 balance, because respondent had not agreed to take it.

Appellant asserts in brief, that if *defendant*(appellant) misunderstood the terms of the- sale, — namely, the balance due — it would not vitiate the same; and cites *Miller*v *Steen,*(30 Cal. 402, and 34 Cal. 139.)

We have read those decisions carefully, but do not find that they are authority for any such assertion. In *Miller*v. *Steen,*the contract as to its terms was certain. There was no question made, but that the minds of the parties had met as to all the terms of the contract. The questions there, were legal, and arose upon and under the contract in applying it to subsequent facts.

There there was a contract to go upon; here there is not.

Appellant states in his brief, that if defendant “(appellant) believed he was buying for a less sum than *462
      *“*$850, it does not appear be acted on said belief by claim- *“*ing bis money back or demanding a recision.”

It appears, tbat appellant refused to pay tbe balance, on tbe basis tbat tbe whole price for tbe purchase was $850, and insisted tbat tbe whole price was only $750.

There being no sale, there was nothing to rescind.

Wallace, J.,

delivered tbe opinion of tbe Court, Rhodes, C. J., Temple, J., and Crockett, J., concurring:

It is not disputed tbat Cassinelli was at one time a co-partner with tbe defendant, owning an interest of one-third in tbe copartnership. Each of tbe parties to tbe controversy, Rovegno and Defferari, claims to have purchased tbat interest from Cassinelli, and this is tbe only question presented here.

It was determined below, and we think correctly, 'that Rovegno was tbe purchaser of tbat interest. Tbe facts are, tbat on March 17, 1869, Cassinelli agreed to sell it to Rovigno, and then received part of tbe purchase price; tbat on the next day (March 18th) Cassinelli and Defferari entered into a treaty concerning tbe sale of this interest to tbe latter;' tbat this was in tbe joresence and with tbe consent of Rovegno. On this occasion a sale of this interest was supposed to have been made by Cassinelli to Defferari; but it turned out afterwards tbat tbe parties to tbat transaction (Cassinelli and Defferari) had entirely misunderstood each otheras tó tbe price to be paid. Cassinelli thought tbat be was selling for $850, and Defferari supposed himself to be purchasing at $750. Upon discovery of this mistake tbe latter refused to take tbe interest at $850. On the 22nd March tbe sale from Cassinelli to Rovegno was made, pursuant to tbe agreement of March 17th, and a bill of sale was then made to tbe latter.

Upon tbe ascertained fact tbat Cassinelli and Deffarari were each mistaken as to tbe purchase price of this copart-nership interest, and each was, therefore, assenting to a supposed contract which bad no real existence, it results that there was no valid agreement, notwithstanding tbe ap*463parent assent of eacb. It is in principle like tbe case of *Phillips*v. *Bristolli,*(2 B. & C. 511), where it appeared that the defendant, who was a foreigner, not understanding the English language well, attended an auction sale in London, and there bid eighty-eight guineas for certain goods, which were, thereupon, knocked down to him, and when sued for the purchase price, he set up in defence that he supposed he was bidding only forty-eight guineas for the goods, and that the mistake grew out of his imperfect knowledge of the English language, in which language the auction was conducted. Chief Justice Abbott left it to the jury to find if the defendant had been mistaken as to the price bid, the Court being of opinion that if such mistake had really intervened, the parties could not be said to have entered into a contract at all.

Judgment and order denying new trial affirmed.