Law School Case Brief
Smith v. Zimbalist - 2 Cal. App. 2d 324, 38 P.2d 170 (1934)
The description in a bill of parcels or salenote of the thing sold amounts to a warranty on the part of the seller that the subject-matter of the sale conforms to such description.
Defendant Buyer purchased from plaintiff Seller two violins that both parties thought to be a Stradivarius and Guarnerius. The Seller sued the Buyer to recover the unpaid balance of the purchase price of the two violins (about $6,000) when he discovered that the violins were cheap imitations worth about $300. The trial court found that the transaction was the result of a mutual mistake and that Seller was not entitled to recover.
Was the seller entitled to recover balance of contract price for purchase of two violins?
The court held that the strict rule of caveat emptor did not apply to the facts of this case because each of the parties was honestly mistaken with reference to the subject matter of the contract. The court concluded that the description of the violins in the bill of sale amounted to a warranty on the part of seller that the subject-matter of the sale conformed to such description.
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