• $9.00

Descripción de editorial

When the written contract was entered into, no understanding existed between the parties that no rock would be found in the excavating. The plaintiff's manager made no inquiry or investigation to find out the character of the ground below the surface, no claim is made that the defendant misled him, and the contract contains no reservations for unexpected conditions. It provides that ""all material"" shall be removed from the site, and its term that the plaintiff is ""to excavate "" is unqualified. In this situation a defence of mutual mistake is not available. A space of ground to be excavated, whatever its character, was the subject-matter of the contract, and the offer of price on that basis was accepted. Leavitt v. Dover, 67 N.H. 94. If the plaintiff was unwise in taking chances, it is not relieved, on the ground of mistake, from the burden incurred in being faced with them. The case differs from that of King Company v. Aldrich, 81 N.H. 42, in which the parties did not contract for the property delivered in purported performance of the contract actually made. The referee's finding that the written contract was ""superseded"" by an oral contract when the rock was discovered is construed to mean that the parties agreed to rescind the written contract as though it had not been made and entered into an oral one as though it were the sole and original one. The defendant either thought that the contract did not require the excavation of rock on the basis of the contract price or was willing to forego his rights under the contract in respect to rock. It was important to him that the work should not be delayed, and other reasons may have contributed to induce him to the concession he made. In any event, he consented to a special price for excavating rock, whatever his rights under the contract. The plaintiff on the strength of the promise proceeded with the work.

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