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Smith v. Zimbalist

California Court of Appeal, Second District
38 P.2d 170 (1934)


Facts

Eighty-six-year-old George Smith (plaintiff) was a collector of rare violins. Efrem Zimbalist (defendant), an acclaimed violinist, also collected rare violins. At the urging of an unrelated third party, Zimbalist contacted Smith to see his violins. Upon inspecting them, he noted that one was a Stradivarius and another a Guarnerius and asked what Smith would charge to sell those two. Smith ordinarily did not sell his violins but agreed to sell those selected by Zimbalist for $8,000. Zimbalist paid $2,000 down and promised to pay the balance in monthly installments of $1,000. These terms, as well as the identity of the violins as a Stradivarius and Guarnerius, were set forth in both a written memorandum of sale and a bill of sale. Both parties honestly believed that the violins were genuine but as it turned out, they were copies not worth more than $300. When Zimbalist did not pay the balance of the $8,000 charge, Smith sued. The trial court issued a judgment in favor of Zimbalist on the basis of mutual mistake. Smith appealed.

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Holding and Reasoning (Houser, J.)

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