The rule in England seems to be that in order to constitute a mistake as to a person, a party must have in view some existing person whom he mistakes for the person with whom he deals. Then, if there be no such other existing person, the contract may be avoided for fraud and not mistake. Thus where a man assumed a fictitious firm name and obtained goods from one who supposed that he was contracting with the firm, the contract is voidable for fraud and not void for mistake, and consequently the seller cannot take the goods from a bona fide purchaser for value.10 So also in a case where a notorious money lender named Gordon assumed the name of Addison and loaned money to the defendant at fifty per cent. interest, it was held that, since the defendant would not have had any dealings with Gordon if he had known the fact, the contract was voidable for fraud.11

$69. Mistake as to the Existence of the Subject-Matter. This arises when at the time the contract is made the subjectmatter of it has, unknown to the parties, ceased to exist, in which case the agreement is void. Thus, in the sale of a ship or cargo at sea which has been lost, or of a horse which is dead, the contract confers no rights upon either party.1 So. an agreement for the sale of an estate by an assignee of a life tenant is void, if the life tenant is then dead, both parties being ignorant of the fact.2

There was a lease of land for a designated rent when both parties supposed that there was coal under it which could be mined. It was contemplated that the lessee would mine the coal, but the rent was not in the nature of a royalty. Upon ascertaining the fact that there was no coal under the land, it was held that the mistake of the parties as to this fact entitled the lessee to relief from the covenant to pay the rent.3

10 King's Norton Metal Co. v. Edridge & Co. (1897), 14 T. L. 98.

11 Gordon v. Street [1899], 2 Q. B. 641.

1 Allen v. Hammond, 11 Peters, 63; Coutarier v. Hastie, 5 H. L. C.

$70. Mistake as to the Identity of the Subject-Matter-Error in Corpore. This sometimes occurs when one party is thinking of one thing and the other party of another thing, and both have the same name or answer a common description.

Thus where there was an agreement to buy a lot on Prospect Street in Waltham, and it appeared that there were two streets of that name, defendant intending to buy a lot on one of said streets and plaintiff to sell a lot on the other, it was held that no contract had been made.1 So, when the contract was for the sale of hemp, the buyer intending Riga hemp and the seller St. Petersburg hemp, because the common broker had given to them different sale notes, it was held that the mistake prevented the formation of a contract.2 In a case where the contract was for the sale of a cargo to arrive "ex Peerless from Bombay," it was found afterwards that there were two ships of that name sailing from that port about the same time. It was held that, since the buyer was thinking of one and the seller of the other, the agreement was void.3

There may also be a mistake in corpore, when two different things have not the same name, but one of the parties to the contract makes an excusable mistake in thinking that the contract relates to one thing while the other party has a different object in view. When the thing, the corpus, had in view by one party is different from that contemplated by the other, the mistake is vital.

When at an auction sale of land, the auctioneer verbally corrected a misdescription in the particulars of sale or advertisement, a purchaser who did not hear the correction and bought, supposing that he was buying the property as advertised, is entitled to rescind the contract.1

1 Kyle v. Kavanagh, 103 Mass. 356.

2 Thornton v. Kempster, 5 Taunt. 786. 3 Raffles v. Wiehelhaus, 2 H. & C. 906.

4 In Re Hare & O'More's Contract [1901], 1 Ch. 93. Cf. Harris v. Pepperell, L. R. 5 Eq. 1. It was held in Sheldon v. Capron, 3 R. I. 171, that when at an auction sale a man bids upon one lot of goods supposing it to be another, he is not bound. This decision seems to stray from the right path, since the mistake was not excusable In Malins v. Freeman, 2 Keen, 25, where a similar mistake was made,

A parcel of ground improved by a front building and a back building connected together and used as one lot, was sold under a description by metes and bounds which did not include the back building. A purchaser who naturally supposed, according to the visible situation of the premises, that he was buying the back building and lot as well as the one included in the description, was relieved from the purchase upon the ground of a mistake as to the subject-matter. you intend to sell me a certain thing or parcel of ground and I intend to buy another, the mistake as to identity, if excusable, renders void the sale. So, it has been held that one who views the wrong lot and contracts to buy may rescind the agreement.7

If

If the parties agree concerning a specified article, the mere fact that it is called by different names cannot on principle affect the validity of the contract.8

When the contract is to sell one thing and another similar thing is delivered by mistake, the contract is not performed, but such error does not affect its formation.

the Court refused specific performance against the purchaser, but left the seller an action for damages. See also, Van Praugh v. Everidge [1903], 1 Ch. 434.

5 Biddison v. Aaron, 102 Md. 156. To the same effect is Crawley v. Jean, 189 Mass. 220. See also, Ellicott v. White, 43 Md. 145; Bigham v. Madison, 103 Tenn. 358; 47 L. R. A. 267; Denny v. Hancock, L. R. 6 Ch. Ap. 13.

6 See Hanson v. Globe Co., 159 Mass. 305; Mead v. Phoenix Ins. Co., 158 Mass. 124; Bridgewater Iron Co. v. Ins. Co., 134 Mass. 433; Cutts v. Guild, 57 N. Y. 229; Strong v. Lane, 66 Minn. 94. Si igitur me fundum emere putarem Cornelianum, tu mihi te vendere Sempronianum putasti, quia in corpore dissensimus emptio nulla est Idem est, si ego me Stichum, tu Pamphilum absentem vendere putasti; nam cum in corpore dissentiatur, apparet nullam esse emptionem. Dig. 18, 1,9 (de contrahenda emptione).

7 Goodrich v. Lathrop, 94 Cal. 56; Benson v. Markoe, 37 Minn. 30. But see McKinnon v. Vollmar, 75 Wis. 82; 6 L. R. A. 121, where the mistake of the purchaser, not having been caused by the vendor, was held not to be excusable.

8 Plane si in nomine dissentiamus, verum de corpore constet, nulla dubitatio est quin valeat emptio et venditio: nihil enim facit error nominis cum de corpore constat. Dig. 18, 1, 9, 1.

Mistake as to identity of part of the subject-matter. When the contract relates to two or more objects, or to a principal object and an accessory, and there is a mistake as to the identity of the accessory object, or as to a part of the subjectmatter which is subsidiary, such mistake does not invalidate the whole agreement. This case is mentioned in the Pandects. There was a contract for the sale of a farm in which the slave Stichus was included. Afterwards it was discovered that the seller owned more than one slave of that name, and it is made clear that he intended to sell a different slave from the one had in view by the pruchaser. The sale of the farm is nevertheless valid."

With this may be compared the case of Boone v. Eyre,10 where the plaintiff conveyed to the defendant the equity of redemption of a plantation in the West Indies together with the stock of negroes on it for £500 and an annuity of £160 for his life, covenanting that he had a good title to the plantation and was lawfully possessed of the negroes. The defendant covenanted to pay the annuity. In an action for its nonpayment, the defendant pleaded that at the time of the making of the deed the plaintiff was not lawfully possessed of the negroes on the plantation and had not a good title to convey. Lord Mansfield said: "The distinction is very clear, when mutual covenants go to the whole of the consideration on both sides they are mutual conditions, the one precedent to the other. But when they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. If this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action."

A mistake, therefore, as to the identity of a subordinate part of the contract does not invalidate the whole, any more

9 Dig. 18, 1, 34 pr. This was the opinion of Paulus. To it Labeo added the gloss that the seller had the right to select which of the two slaves should be included. But in our law it would seem that the mistake as to the identity of the slave would render that part of the contract void and entitle the purchaser to compensation for the deficiency if the sale of the farm and slave was for a lump sum. 10 1 H. Black. 273, note; 18 English Ruling Cases, 609.

than the failure of one party to perform a subsidiary stipulation operates to discharge the other party from all liability.11

§ 71. Mistake as to the Nature or Qualities of the SubjectMatter-Error in Substantia. When a specific and identified article is sold, a mistake as to its qualities by the buyer alone leaves him without remedy unless there has been an express warranty or fraud, and a mistake on this point by the seller alone affords no title to relieve by him or against him. But when both parties are mistaken as to certain fundamental qualities or attributes of the subject-matter of the contract, and the absence of these qualities makes it a thing different essentially from that with which the parties suppose they are dealing, and when the contract would not have been made but for the assumption that the thing possessed those qualities, then such a mistake, being as to the substance, avoids the contract. The following cases illustrate this kind of mistake:

Plaintiff agreed to sell to the defendant for £460 a policy of insurance for £500 on the life of a third person, whom they both thought to be then living. This person was in fact at the time dead, and the amount which thus became due on the policy was £777. It was held that, although the policy had been assigned to the purchaser, the plaintiff was entitled to have the contract and the assignment set aside on the ground of mistake.1 A policy of insurance on an existing life is essentially a different thing from a policy which has matured and become a claim against the insurer. The Court said: "Both parties entered into this contract upon the basis of a common affirmative belief that the assured was alive; but as it turns out that this was a common mistake, the contract was one which cannot be enforced. This is so at law; and the plaintiffs do not require to have recourse to equity to rescind the contract, if the basis which both parties recog

11 See post, Part vi, ch. 3, as to breach of subsidiary agreement. 1 Scott v. Coulson [1903], 2 Ch. 249, affirming S. C. [1903], 1 Ch. 453. The same principle was applied in the somewhat similar case of Riegel v. Am. Ins. Co., 153 Pa. 134.