The objection at variance from the bill of particulars was too general. It should have been stated whether it was in quantity, or sum, or in what else.
The mistake as proved went not only to the quantity measured, but the jury found, under the charge of the judge, that *176relatively it influenced the entire agreement to take the oats at 1,900 bushels. One ingredient of estimating the residue, as talked of, was the assuming that the supposed 500 bushels was one-fourth of the pile, which would operate unfavorably to the plaintiff", if he reasoned from the size of the smaller to that of the larger pile. Here was an admitted error, which certainly influenced the conduct of the plaintiff to the extent of 250 bushels ‘ and, as we must take it on the finding of the jury, to the full amount which the oats came short of the 1,900 bushels. All the excess of payment arose from a count of half bushels aS bushels. And the only question in the least open is, whether an agreement, based on that mistake, to accept the' oats at the plaintiff’s own risk of the quantity, shall conclude him. The mistake which entitles to this action, is thus stated by the late Chief Justice Savage from the civil law: “ An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist.” Mowatt v. Wright, 1 Wendell, 360. He cites the words of 2 Ev. Poth. 437. And see 1 Dom. 248, B. 1, tit. 18, § 1, pl. 1. In judging of its legal effect, we must look “ to the regard which the contractors have had to the fact which appeared to them to be true.” 1 Dom. 250, B. 1, tit. 18, § 1, pl. 11. And when we see that the agreement is the result of such a regard, or, as the .judge said to the jury, is based upon it, I am not aware of any case or dictum, that, because part of the agreement is to take at the party's own- risk, or as the parties expressed it here, hit or miss, it therefore forms an exception to the general rule. The agreement to risk was, pro tanto, annulled by the error. The money was paid under a contract void for so much as the oats fell short of 1,900 bushels. The effect would have been very different, had the truth been known to the plaintiff. See Bdmat as before cited. The foundation of the arrangement to take at the plaintiff’s risk, was a misreckoning, bae number being put instead of another, “which,” says Domat pl. 12, “ is a kind of error in fact different from all other errors, in that it is always repaired.”
The motion for a new trial is denied.