It seems to me that the fact that plaintiff’s president was thoroughly familiar with the market price of “ potassium guaiacol sulphonate ” and had' on the same day and immediately prior to placing the order with the defendant received several quotations on that article, all of these at about thirty dollars a pound, shows that plaintiff knew or ought to have known that Jacobs, defendant’s salesman, could not have intended to sell the crystalline form at ten dollars and fifty cents a pound. As to Jacobs his testimony was, that he was not sufficiently well informed, at the time the contract was entered into, of the difference in the nomenclature between the crystalline and the powdered form of the drug. He testified that he had previously sold the powdered form under the description “ potassium guaiacol sulphonate,” and that he knew the crystalline form as “ thiocol.” He also knew that the crystal form was worth thirty dollars a pound at that time and that the price of the powdered form was ten dollars. Although he subsequently delivered the crystalline variety under similar orders, this was after the mistake had been discovered.
This is not a case of mutual mistake. The situation presented is one of a mistake on one side which was known or should have been known to the other contracting party. As was stated in City of New York v. Dowd Lumber Co. (140 App. Div. 358): “ If * * * it appears that one of the parties has, without gross fault or laches on his part, made a mistake, that this mistake was known, * * * and that the mistake can be relieved against without injustice, the court will afford relief, either by refusing to decree specific performance, by cancellation, or by refusing to give damages. * * * Where the mistake is patent, where the opposite party knew or should have known of it, no contract has been made, the *695minds of the parties have not met, and they will be left where the mistake places them.’ ”
Ward v. Union Trust Co. (166 App. Div. 762) is not in point. . That was an action brought by the owners of a piece of property to recover the amount of taxes for the year 1914 paid by them, the plaintiffs relying upon a term of the lease which obligated defendant to pay all taxes. The defendant’s answer admitted the execution of the lease and set up by way of counterclaim that by the negotiations between the parties preliminary to the execution of the lease it was agreed that the lessee was to pay the taxes only up to and including the year 1913; but that the lease was so drawn as to imperfectly describe the common intention of the parties. Under such circumstances the court properly held that the evidence in support of the counterclaim would not under the parol evidence rule be admissible. The Ward case, therefore, was not a case where the minds of the parties never met, but where the written lease did not express the actual agreement which they had made. , Indeed, it was stated in that case that “ in an action at law based on a contract in writing the defendant may show, to avoid liability, that the minds of the parties did not meet on the contract as pleaded, and that, therefore, the alleged contract was never made.”
I cannot agree with the majority opinion which states that there is reason to suppose that defendant deliberately intended to deliver to plaintiff an article which defendant knew to be inferior, for the reason that plaintiff was a very large dealer in that article and it is not likely that such a fraud would be attempted, or, if attempted, would be successful. It may be assumed in view of the expert testimony that there was no ambiguity, but there were certainly “ peculiar circumstances ” attending the transaction.
The difference between the contract price and the market price of the article named in the contract is so strikingly great that there can be no doubt that the minds of the parties did not meet with respect to the article intended to be sold.
I think that the judgment should be reversed.
Smith, J., concurs.
Judgment affirmed, with costs.