¶1The plaintiff sold the defendant a Jersey cow called “Kittina” and a Jersey heifer called “Colt’s heifer ” on the 18th of October, 1883. For the cow the defendant agreed to pay $100, if she should prove to be with calf; but if she was not he was to pay but $40. The heifer was honestly represented by the plaintiff to be of a certain pedigree, but proved to be of less pure blood, and the defendant claimed $50 damages, which the plaintiff admitted that he was entitled to; and on the 16th of April, 1884, the parties met and agreed that the $50 should be paid by turning in the cow Kittina at $40 and paying $10 in cash, which sum the plaintiff then paid to the defendant.
¶2At this time both parties were satisfied that the co-w was not with calf, and that therefore under the original contract *75the plaintiff was entitled to only $40 for her, and in making the settlement both parties acted on that belief. It proved however that she was with calf, and had been at the time she was sold, as she had a calf on the 18th of the following June.
¶3The defendant claims that the settlement was a full and final one of the whole matter of the purchase, and that the plaintiff is not entitled to the $60 additional which he was to have had by the original contract if the cow was then with calf. The plaintiff claims that the settlement was made under a mutual mistake as to the condition of the cow, and that he may now fall back on the original contract and recover the $60.
¶4It is clear that the settlement was merely of the $50 damages claimed by the defendant, and assented to by the plaintiff, for the failure in pedigree of the heifer. In paying that $50 the cow Kittina was turned in at the price which by the original contract the plaintiff supposed he was bound to accept, and which the defendant supposed was all that by that contract he was bound to pay. The case does not stand differently from what it would if the defendant had paid the plaintiff the $40 in cash, under the mistake of both parties as to the cow’s condition. As soon as the mistake was discovered the defendant would be bound to correct it, by paying the remaining $60. If the settlement had been in writing and made in terms to cover the whole matter, yet, being made under a mistake of both parties as to an important fact, it could have been corrected.
¶5The plaintiff is clearly entitled to recover the $60 remaining unpaid for the cow.
¶6There is error in the judgment, and a new trial is ordered.
¶7In this opinion the other judges concurred.