Sutro

I concur in the views expressed by Mr. Justice McFarland. Young v. Cole, 3 Bing. N. C. 724, is a case directly in point, and supports the contention of the appellants here, but a different rule has been established in this state. Section 1774 of the Civil Code as originally enacted provided as follows: “ One who sells or agrees to sell an instrument purporting to bind any one to the performance of an act thereby warrants the instrument to be what it purports to be, and to be binding according to its purport upon all the parties thereto, and also warrants that he has no knowledge of any facts which tend to prove it worthless, such as the insolvency of any of the parties thereto, where that is material, the extinction of its obligations, or its invalidity for any cause.” The code commissioners, in their notes under this section, cite the case of Young v. Cole, 3 Bing. N. C. 724. But in 1874 that section was modified by striking therefrom the following clause: “ Thereby warrants the instrument to be what it purports to be, and to be binding according *128 to its purport upon all the parties thereto.” I cannot understand what purpose would be subserved by this amendment, unless the…

An act of the legislature was passed March 25, 1868, entitled “An act in relation to the funded indebtedness of Calaveras County, and to provide for the funding of unpaid claims against said county.” By this act, fund commissioners were created, and the board of supervisors were authorized to have prepared, executed, and issued bonds of the county in *122 denominations of one hundred dollars and five hundred dollars, but “ not to exceed in all one hundred and fifteen thousand dollars.” The bonds were to be signed and sealed in a certain prescribed manner; were to mature and bear interest (with interest coupons attached), as specially provided in the act; and a record of the number, date, and amount of each bond issued was to be entered upon the journal of the board. They were negotiable in form, being payable to a party named, or holder. Under this act, bonds were executed and issued in form as provided therein, to the amount of the said one hundred and fifteen thousand dollars; and after-wards additional bonds, similar in form to the first ones, and executed in the same manner, were issued to the amount of about forty thousand dollars in excess of said one hundred and fifteen…

I concur. There is a conflict of authority upon the principal question involved in this case, but I think the best-considered decisions support the conclusions reached by Justice McFarland. If a vendor contracts to deliver goods of a certain description, he must deliver sound articles of that description; and if he fails to do so, there is a failure of consideration for the price paid. But if a vendor submits specific articles to the inspection and examination of the purchaser; if he conceals no fact'within his knowledge, and makes no false representation; if each party has equal knowh edge or means of knowledge respecting every fact affecting the soundness and value of the article, — then, if a price is agreed upon, and a sale made, the purchaser cannot, upon the subsequent discovery that the articles sold were in fact worthless, recover the price paid upon the ground of failure of consideration. For having got precisely what he bargained for, he cannot say that there has been any failure of consideration. If he can recover at all, it must be upon the ground of a breach of some implied warranty by the vendor.

Now, in this case, there was no executory contract for the sale of…

I concur in the opinion of Mr. Justice McFarland as to the invalidity of the bonds, but dissent wherein he concludes that plaintiff purchased at his peril, and is prevented upon the principle of caveat emptor from recovering the money paid defendant.

In this case there is no question of fraud practiced by the seller, and no question of negligence involved upon the part of the buyer. Both parties thought these instruments were valid bonds of Calaveras County. It was an honest mistake of fact, and caveat emptor never applies to a mistake of fact. If plaintiff’s mistake had been a mistake of law, — that is, if Sutro had known at the time of the purchase that these bonds were an overissue,— such knowledge would have defeated his right of recovery; but there can be no mistake of law, unless the facts are known.

The question involved here is not a question of warranty, but a total failure of consideration, the existence of which fact is fatal to all contracts; and this principle has been fully and repeatedly recognized by this court. (Keller v. Hicks, 22 Cal. 457 ; 83 Am. Dec. 78 ; Peat Fuel Co. v. Tuck, 53 Cal. 305 ; Redington v. Woods, 45 Cal. 429 ; 13 Am. Rep. 190 .)

*129 As a…