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tract with the government for carrying the mails between those places. After he had entered upon the performance of his contract he discovered that, some time before the advertisement for bids, the post office at Velasco had been discontinued, a fact which had been overlooked by the government when advertising for bids,-and that it was necessary to carry the mails destined for that place to Quintana, a place on the further side of a wide river which flowed between Velasco and Quintana, and which must be crossed by a ferry. A demand for additional compensation having been refused, Charles abandoned his contract, and it was held that he was entitled to do so, and incurred no liability thereby, 107

But if one of

A mistake of this kind must be mutual. the parties was ignorant of the fact that the subject-matter of the supposed contract did not exist, the other cannot be heard to say that he was aware of it and that there was therefore no mutual mistake, because this would convict him of setting a trap for the other party and taking advantage of his ignorance to lead him into a disadvantageous bargain. For instance, where a miller enters into a contract with a manufacturer of milling machinery for the construction of a mill which shall be capable of producing flour of a certain percentage and grade, and the contractor refuses to construct the mill, having discovered that the standard agreed on does not exist, on the ground that there is no means of deciding whether the mill, when completed, will conform to the contract, and because of the mutual mistake as to the standard, the miller cannot claim that he knew that the standard did not exist, and that it was the mistake of the contractor alone, without impeaching his own good faith.108 In another case, a vendor of mining property represented to the purchaser that, in the opinion of an expert, there were 50,000 tons of mineral in place. The report of the expert showed on its face that the amount of mineral was but 5,000 tons. The vendor relied on the express misstatement of the results of the expert's ex

107 United States v. Charles, 74 Fed. 142, 20 C. C. A. 346. 108 Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 56 S. W. 287, 78 Am. St. Rep. 600.

amination and of the contents of his report. The purchaser relied on the mistake, and contracted to purchase the property. It was held to be a case of mutual mistake, and that equity would relieve the purchaser from his contract.109

§ 140. Mistake as to Identity of Subject-Matter.-Equity will grant relief, by way of rescission or cancellation, from a contract or conveyance based upon a substantial misunderstanding of the parties as to the subject-matter of the contract, though the mistake was entirely innocent on both sides and there was no fraud or misrepresentation.110 This rule is very well illustrated by a case in Indiana, where a contract called for the delivery of "Indiana egg coal," and this term might properly have been used to describe either of two grades. The buyer had in mind the higher grade, and the seller the lower grade, and each party believed that he was contracting for the kind of coal which he had in mind, and it was held that no contract was made.111 So, in a sale of real estate, if one party believes he is buying a particular piece of property, while the other thinks he is selling another piece, there is no meeting of minds so as to constitute a valid contract.112 Thus, for instance, if the purchaser, desiring to inspect the property before completing the bargain, has a particular lot pointed out to him, which is satisfactory and which he supposes he is to acquire, but by accident or mistake he is shown the wrong lot, that is, a lot different from that which the vendor understands he is selling and which is described in the deed, it is a case in which equity may give relief on the ground of mutual mis

109 Johnson v. Withers, 9 Cal. App. 52, 98 Pac. 42.

110 Barfield v. Price, 40 Cal. 535; Eldorado Jewelry Co. v. DarneЛ, 135 Iowa, 555, 113 N. W. 344, 124 Am. St. Rep. 309; Relf v. McDonogh, 19 La. 100; Dzuris v. Pierce, 216 Mass. 132, 103 N. E. 296; Kyle v. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560; Allen v. Luckett, 94 Miss. 868, 48 South. 186, 136 Am. St. Rep. 605; Dunn v. Dunn, 151 App. Div. 800, 136 N. Y. Supp. 282; Leonhard v. Provident Sav. Life Assur. Soc., 130 Fed. 287, 64 C. C. A. 533.

111 Indiana Fuel Supply Co. v. Indianapolis Basket Co., 41 Ind. App. 658, 84 N. E. 776.

112 Dzuris v. Pierce, 216 Mass. 132, 103 N. E. 296; Lewis, 121 Iowa, 27, 95 N. W. 262; Lee v. Laprade, 106 S. E. 719, 117 Am. St. Rep. 1021, 10 Ann. Cas. 303.

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Bottorff. v.
Va. 594, 56

take.118 The rule also finds its application in cases where the vendor and purchaser are agreed as to the property which is the subject of the sale, but by mutual mistake the land described in the written contract of sale or in the deed is not that intended to be conveyed.114 And so where a vendor orally agrees to sell certain lots in a plan, but by mistake his clerk gives the vendee a receipt for the cash payment, which describes the property so as to include other lots not intended to be sold, and the vendee refuses to accept a deed in accordance with the real terms of the sale, the vendor may tender back the money paid and maintain an action to rescind.115 But if a deed conveys the premises intended to be conveyed, it is valid, irrespective of misunderstandings as to the terms of description used, which are unimportant from this point of view.118

For similar reasons, where the seller intends to sell a certain car-load of merchandise, but by mistake, brought about by his giving an insufficient sampling order on the carrier, the purchaser samples another car and pays for the goods, on discovery of the mistake the purchaser may recover the payment.11 So where a merchant advertises goods at a certain price, and the salesman by mistake sells goods of much greater value as part of the lot, the merchant, on discovering the mistake before delivery, may rescind the sale.118 So where there is a mistake on the part of the seller of goods as to the quantity sold, and such mistake would work a manifest hardship on him, and give an undue advantage to the buyer, equity will not enforce the contract, as, for instance, where one supposes that he is buying

113 Goodrich v. Lathrop, 94 Cal. 56, 29 Pac. 329, 28 Am. St. Rep. 91; Strong v. Lane, 66 Minn. 94, 68 N. W. 765; Selby v. Matson, 137 Iowa, 97, 114 N. W. 609, 14 L. R. A. (N. S.) 1210. But see Reeves v. McCracken, 103 Tex. 416, 128 S. W. 895.

114 McMillan v. Morgan, 90 Ark. 190, 118 S. W. 407; Page v. Whatley, 162 Ala. 473, 50 South. 116; Selby v. Matson, 137 Iowa, 97, 114 N. W. 609, 14 L. R. A. (N: S.) 1210; Beason v. Coleman, 92 Miss. 622, 46 South. 49; Stahn v. Hall, 10 Utah, 400, 37 Pac. 585; Fearon Lumber & Veneer Co. v. Wilson, 51 W. Va. 30, 41 S. E. 137; Abbott v. Dow, 133 Wis. 533, 113 N. W. 960.

115 Hovey v. Howard, 177 Pa. 323, 35 Atl. 670.

116 Slater v. Reed, 37 Or. 274, 60 Pac. 709.

117 De Wolff v. Howe, 112 App. Div. 104, 98 N. Y. Supp. 262.

118 Goodrich v. Strawbridge, 5 Pa. Co. Ct. R. 427.

five car loads of matches, and the other that he is selling one car load only, there is no sale.119

But in the absence of fraud, misrepresentation, or unconscionable conduct, a mistake as to the identity of the subject-matter must be mutual in order to afford ground for the intervention of equity.120 Thus it is said: "If A. and B. contract for the sale of the cargo of the ship 'Peerless,' and there be two ships of that name, and A. means one ship and B. intends the other ship, there is no contract. But if there be but one ship 'Peerless,' and A. sells the cargo of that ship to B., the latter would not be permitted to excuse himself on the ground that he had in his mind the ship 'Peeress,' and intended to contract for a cargo by this last-named ship. Men can only bargain by mutual communication, and if A.'s proposal were unmistakable, as if it were made in writing, and B.'s answer was an unequivocal and unconditional acceptance, B. would be bound, however clearly he might afterwards make it appear that he was thinking of a different vessel." 121 Further, as in all other cases of rescission on the ground of mistake, it is essential that the mistake should have been material. Thus, one who offers to do part of the work of construction on a building on a certain street, for a price named, cannot, after acceptance of his offer, allege that he was mistaken as to the particular lot on that street on which the building was to be located.122 And again, to make a misunderstanding or mistake as to the identity of the subject-matter of the contract a ground for relief in equity, it must not have resulted from the negligence of the complaining party.123

119 Singer v. Grand Rapids Match Co., 117 Ga. 86, 43 S. E. 755. But see Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826, holding that, where there is no doubt as to the subject-matter, the mere fact that one has in fact sold more than he thought, or the other got more than he expected, is not sufficient to avoid a contract of sale of land, although a mutual mistake as to the subject-matter will avoid the contract.

120 Wolff v. Megargel (Sup.) 123 N. Y. Supp. 368.

1211 Benj. Sales (6th Amer. Edn.) § 609, citing Raffles v. Wichelhaus, 2 Hurl. & C. 906.

122 McCormack v. Lynch, 69 Mo. App. 524.

123 Dzuris v. Pierce, 216 Mass. 132, 103 N. E. 296; Columbian Conservatory of Music v. Dickenson, 158 N. C. 207, 73 S. E. 990.

§ 141. Mistake as to Price or Value of Subject-Matter. Where there is a clear misunderstanding as to the price of an article alleged to have been sold, so that the minds of the parties never meet upon this point, there is no completed and enforceable contract, and the buyer cannot be held to have contracted to pay a reasonable price.124 Thus, where plaintiff agreed to cut timber for defendant, and their written contract, by mistake, bound the defendant to pay $10 per thousand feet, instead of $1, as it should have been, and the defendant was aware of the mistake and intended to take advantage of it, but the plaintiff believed he was entitled to $10, and entered upon the work and in good faith expended nearly the amount of the contract price in executing the contract, it was held that he might recover $10 per thousand feet; but if plaintiff knew that the real price was $1, he could not take advantage of the mistake in the written contract and claim more than that.125 But the value of the subject, as distinguished from the price, is a matter of opinion, and one upon which both parties are expected to exercise their independent judgment. And equity will not relieve against a contract made in good faith, where both parties are mistaken as to the value of the subject-matter. That is, relief will not be given simply because it proves a hard and losing bargain for the complaining party, where there was no fraud or misrepresentation, and both parties had the same belief, and made the same mistake, as to the value of the subject.126 On this point, a leading text-writer says: "As a general rule in sales, the vendor and purchaser deal with each other at arms' length, each relying on his own skill and knowledge, and each at liberty to impose conditions or exact warranties before giving assent, and each taking upon himself all risks other than those arising from fraud, or from the causes against which he has fortified himself by exacting con

124 Mummenhoff v. Randall, 19 Ind. App. 44, 49 N. E. 40; Estey Organ Co. v. A. & E. Lehman, 132 Wis. 144, 111 N. W. 1097, 11 L. R. A. (N. S.) 254, 122 Am. St. Rep. 951.

125 Mercer v. Hickman-Ebbert Co., 32 Ky. Law Rep. 230, 105 S. W. 441.

126 Hunter v. Goudy, 1 Ohio, 449; Dortic v. Dugas, 55 Ga. 484; Citizens' Bank v. James, 26 La. Ann. 264.

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