from the defendant and had been duly signed by him. Looking at the case, therefore, from either of the points of view taken by the learned judge below, I think that it was rightly decided by him, and therefore this appeal should be dismissed."

Question 60: What was the document upon which suit was brought in this case? Who brought it, and against whom? What were the facts under which the signature was procured? Was the paper in question negotiable? Did the court think that the failure of defendant to read might have made him liable if the paper were negotiable and suit were brought by an innocent purchaser of such paper? What is the liability of a person on a paper whose contents he does not know where the contents have not been fraudulently misrepresented to him?

(Note to Case 60. In a suit by an assignee of a non-negotiable document, clearly the signer of the paper would have the same defense against such assignee as he would have had against the assignor because an assignee takes no better title than the assignor and he knows he runs that risk when he acquires the assignment. In that case we have a situation like this:

But the court thought that even in that case B owed no duty to C because he did not know that C was involved. But see the same subject in case of Negotiable Paper, post.)

(Note: This defense of fraud in the procurement while undoubtedly a good defense if in fact true, must be carefully watched. It has been said that it is "an overworked defense.' Undoubtedly signers of instruments, having no other defense, have fabricated this one as a way out. It appears to the editor that there must be numerous cases where this defense is asserted when in fact the defendant did know what he signed.)

§ 67. (Contracts, Sec. 35.) Mistake.

Case 61. Riegel v. Amer. Life Ins. Co., 153 Pa. 134. Facts: One L had an insurance policy on his life in the A. L. Ins. Co. in favor of R, his creditor. L dis

appeared and R kept up the premiums. Finally, finding the matter burdensome, R surrendered the policy to the insurance company and took out a paid-up policy in a much less sum in return therefor. As a matter of fact, L was dead at the time of the agreement. Both parties had acted on the assumption that he was alive. This is a suit brought to have that settlement set aside and give R the full benefit of the former policy.

Point Involved: If an agreement is made based on a mutual mistake as to the condition or existence of the subject matter, does a contract result?

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MR. JUSTICE STERRETT: The general rule is that an act done or a contract made, under a mistake of a material fact is voidable and relievable in equity. The fact of course must be material to the act or contract * *. The principle is illustrated by familiar examples, employed by text writers, thus: A agrees to buy a certain horse from B. It turns out that the horse is dead at the time of the bargain, though neither party is then aware of the fact. The agreement is void.

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"It cannot be doubted that in exchanging the old for the new policy both parties acted on the basis that Leisenring was then alive.

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And it is now adjudged and decreed that the contract under which said exchange of insurance policies was made be rescinded, that the paid-up policy for $2,500 be surrendered and cancelled, and that the original policy of insurance be reinstated, as of the date of its surrender; and that the defendant company pay to the plaintiff the sum of $6,000.

Question 61: What was the mistake of fact in this case? What right had Riegel on the old policy at the time it was surrendered? Did his acceptance of a new policy and the cancellation of the old bar his right upon the old? Why?

Case 62. Raffles v. Wichelhaus, 2 H. & C. Reports (Eng.), 906 (1864).

Declaration: For that it was agreed between the plaintiff and the defendants, to wit, at Liverpool, that

the plaintiff should sell to the defendants, and the defendants buy of the plaintiff, certain goods, to wit, 125 bales of Surat cotton, guaranteed middling fair merchant's Dhollorah, to arrive ex "Peerless" from Bombay; and that the cotton should be taken from the quay, and that the defendants would pay the plaintiff for the same at a certain rate, to wit, at the rate of 171⁄44 d. per pound, within a certain time then agreed upon after the arrival of the said goods in England.-Averments: that the said goods did arrive by the said ship from Bombay in England, to wit, at Liverpool, and the plaintiff was then and there ready and willing and offered to deliver the said goods to the defendants, &c. Breach: that the defendants refused to accept the said goods or pay the plaintiff for them.

Plea: That the said ship mentioned in the said agreement was meant and intended by the defendants to be the ship called the "Peerless," which sailed from Bombay, to wit, in October; and that the plaintiff was not ready and willing and did not offer to deliver to the defendants any bales of cotton which arrived by the lastmentioned ship, but instead thereof was only ready and willing and offered to deliver to the defendants 125 bales of Surat cotton which arrived by another and different ship, which was also called the "Peerless," and which sailed from Bombay, to wit, in December.

Demurrer, and joinder therein.

Milward, arguing in support of the demurrer. The contract was for the sale of a number of bales of cotton of a particular description, which the plaintiff was ready to deliver. It is immaterial by what ship the cotton was to arrive, so that it was a ship called the "Peerless." The words "to arrive ex 'Peerless,'" only mean that if the vessel is lost on the voyage, the contract is to be at an end. (Pollock, C. B.-It would be a question for the jury whether both parties meant the same ship called the "Peerless.") That would be so if the contract was for the sale of a ship called the "Peerless;" but it is for the sale of cotton on board a ship of that name. (Pollock,

C. B.-The defendant only bought that cotton which was to arrive by a particular ship. It may as well be said, that if there is a contract for the purchase of certain goods in warehouse A., that is satisfied by the delivery of goods of the same description in warehouse B.) In that case there would be goods in both warehouses; here it does not appear that the plaintiff had any goods on board the other "Peerless." (Martin, B.-It is imposing on the defendant a contract different from that which he entered into. Pollock, C. B.-It is like a contract for the purchase of wine coming from a particular estate in France or Spain, where there are two estates of that name.) The defendant has no right to contradict by parol evidence a written contract good upon the face of it. He does not impute misrepresentation or fraud, but only says that he fancied the ship was a different one. Intention is of no avail, unless stated at the time of the contract.

Mellish (Cohen with him), in support of the plea.There is nothing on the face of the contract to show that any particular ship called the "Peerless" was meant; but the moment it appears that two ships called the "Peerless" were about to sail from Bombay there is a latent ambiguity, and parol evidence may be given for the purpose of showing that the defendant meant one "Peerless" and the plaintiff another. That being so, there was no consensus ad idem, and therefore no binding contract. PER CURIAM. There must be judgment for the defendants.

Judgment for the defendants.

Question 62: (1) What did the plaintiff sue for in this case? What was defendant's defense? How did the court hold?

(Note: The above case is an illustration of the use of a demurrer in pleading. The demurrer tests the legal sufficiency of the pleading. Here the plaintiff sued for damages arising out of defendant's alleged refusal to accept goods ordered by defendant. The defense was that defendant contracted for goods to arrive by Peerless No. 1, but plaintiff tendered goods

arriving by Peerless No. 2. Plaintiff demurred to this plea instead of answering or denying it. In other words plaintiff claimed the plea made no legal defense. This presented the issue on the pleadings. No evidence was received. The court decided the plea made a good legal defense.)

Case No. 63. Indiana Fuel Supply Co. v. Indianapolis Basket Co., 84 Northeastern Reporter (Ind.) 776.

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Facts: This action was brought by appellant before a magistrate to recover the contract price of coal, the appellee contending as a defense, among other things, (1) that because of a misunderstanding between the buyer and the seller as to the grade of coal the contract called for, the buyer having in mind Indiana domestic egg coal, double screened, and the seller having in mind Indiana steam egg coal, screened but once, that the minds of the contracting parties never met and that there was therefore no contract between them;

RABB, JUSTICE: "Mutual assent is necessary to the formation of every contract, and any mistake of the parties by which one of the contracting parties has in mind one thing as the subject matter of the contract, and the other party has in mind something entirely different, and where the terms of the contract are such that it will mean either the one or the other, there is no meeting of the minds of the contracting parties, and therefore no contract. If in this case the terms of the contract entered into by the parties would properly describe domestic egg coal, and could be understood by either of the parties as meaning domestic egg coal, and would also describe steam egg coal, and could be understood by either of the parties as meaning steam egg coal, and if one of them had in mind when he contracted for egg coal the higher grade of coal, and the other had in mind when entering into the contract the lower grade of coal, and each party believed that by the terms of the contract he was contracting for the particular kind of coal he had in mind, then no con