Haubert

Defendant's appeal from the judgment and an order refusing him a new trial.

On the 26th of February, 1886, plaintiff sold to defendant the wine in his cellar in Sonoma Valley, for twenty-eight and one half cents per gallon. After the parties had come to an agreement, defendant caused the *435 contract to be written out by a friend, who prepared two copies, supposed to be duplicates. By mistake, however, in one copy the price was put at twenty and one half cents per gallon. Defendant took them to plaintiff, who . read one of the contracts, which chanced to be the correct one, and finding it satisfactory, both parties executed the two supposed duplicates, defendant assuring plaintiff that they were exactly alike. The incorrect copy was not read by either. It does not appear that plaintiff had anything to do with the preparation of the writing, or -whether he even desired or expected a writing to be prepared; nor that he knew that defendant had not read and compared the two.

One copy, which also happened to be the correct one, was left -with plaintiff; the other defendant took, and immediately assigned to one Schmidt, who agreed to receive and pay for the wine and give defendant…