faith; if he afterwards discovers that his interest was in So far, then, mistake as such does not improve the position of the party doing a mistaken act. Neither does it as a rule make it any worse. A mistaken demand which produces no result does not affect a plaintiff's right to make the proper demand afterwards. Where B. holds money as A.'s agent to pay it to C., and appropriates it to his own use, C. may recover from A. notwithstanding a previous mistaken demand on B.'s estate, made on the assumption that B. would be treated as C.'s own agent (b). Nor does a mistaken repudiation of ownership prevent the true owner of goods from recovering damages afterwards for injury done to them by the negligence of a bailee, whose duty it was to hold them for the true owner at all events (c). This is independent of and quite consistent with the rule that a party who has wholly mistaken his remedy cannot be allowed to proceed by way of amendment in the same action in an entirely different form and on questions of a different character (d). Next, mistake does not in general alter existing rights. As to The presence of mistake will not make an act effectual existing rights which is otherwise ineffectual. Many cases which at first of other (a) Marshall v. Collett, 1 Y. & C. Ex. 232. (b) Hardy v. Metropolitan Land & Finance Co. 7 Ch. 427, 433. Cp. Vangerow, Pand. 1. 118. (c) Mitchell v. Lancashire & Yorkshire Ry. Co. L. R. 10 Q. B. 256, 261. (d) Jacobs v. Seward, L. R. 5 H. L. 464. persons. sight look like cases of relief against mistake belong in truth to this class, the act being such that for reasons independent of the mistake it is inoperative. Thus a trustee's possession of land is the possession of his cestui que trust, and it makes no difference if he is mistaken as to the person who really is cestui que trust. His payment over of the rents and profits to a wrong person, whether made wilfully and fraudulently, or ignorantly and in good faith, cannot alter the character of the possession (a). Where the carrier of goods after receiving notice from an unpaid vendor to stop them nevertheless delivers them by mistake to the buyer, this does not defeat the vendor's rights for the right of possession (b) revests in the vendor from the date of the notice, if given at such a time and under such circumstances that the delivery can and ought to be prevented (c), and the subsequent mistaken delivery has not, as an intentional wrongful delivery would not have, any power to alter it (d). Again, by the rules of the French Post Office the sender of a letter can reclaim it after it is posted and before the despatch of the mail. C., a banker at Lyons, posted a letter containing bills of exchange on England indorsed to D., an English correspondent. These were in return for a bill on Milan sent by D. to C. Before the despatch of the mail, learning from D.'s agent at Lyons that the bill on Milan would not be accepted and D. desired that no remittance should be made, C. sent to the post-office to stop the letter. It was put aside from the rest of the mail, but by a mistake of C.'s clerk in not completing the proper forms it was despatched in the ordinary course. It was held that there was no effectual delivery of the bills to D. and that the property remained in C. The mistake of the clerk could (a) Lister v. Pickford, 34 Beav. 576. (b) The book has property: but the use of this word assumes that stoppage in transitu rescinds the contract, contrary to the opinion which now prevails (Schotsmans v. Lancashire & Yorkshire Ry. Co. 2 Ch. 332, 340). (c) Whitehead v. Anderson, 9 M. & W. 518: Blackburn on Cont. of Sale, 269. (d) Litt v. Cowley, 7 Taunt. 169. not take "the effect of making the property in the bills pass contrary to the intention of both indorser and indorsce" («). Had not the revocation been at the indorsee's request, then indeed the argument would probably have been correct that it was a mere uncompleted intention on C.'s part for as between C. and the post-office everything had not been done to put an end to the authority of the post-office to forward the letter in the regular course of post. Anderson's case (b) may possibly be supported on a similar ground. It was there held that a transfer of shares sanctioned by the directors and registered in ignorance that calls were due from the transferor might afterwards be cancelled, even by an officer of the company without authority from the directors, on the facts being discovered. It may be that the directors' assent to the transfer is not irrevocable (apart from the question of mistake) until the parties have acted upon it. sequent founded on the Again, the legal effect of a transaction cannot be altered Subby the subsequent conduct of the parties: and it makes no conduct difference if that conduct is founded on a misapprehension of parties of the original legal effect. A man who acts on a wrong mistaken construction of his own duties under a contract he has construction does entered into does not thereby entitle himself, though the not alter acts so done be for the benefit of the other party, to have contract: the contract performed by the other according to the same construction (c). This decision was put to some extent upon the ground that relief cannot be given against mistakes of law. But it is submitted that this is not a case where the distinction is really material. Suppose the party had not construed the contract wrongly, but acted on an erroneous recollection of its actual contents, the mistake (a) Ex parte Cote, 9 Ch. 27, 32. (b) 8 Eq. 509. Sed qu. Mr. Justice Lindley, who was himself counsel in the case, cites it (2.1407) with the material qualification, “if the transferee does not object." The case is remarkable for the dictum (which ought never to have been re- (c) Midland G. W. Ry. of Ireland EE unless such that would by mutual consent. would then have been one of fact, but it is obvious that the decision must have been the same. Still less can a party to a contract resist the performance of it merely on the ground that he misunderstood its legal effect at the time (a). Every party to an instrument has a right to assume that the others intend it to operate according to the proper sense of its actual expressions (b). It must be remembered, however, that where both apart from parties have acted on a particular construction of an mistake it ambiguous document, that construction, if in itself adamount to missible, will be adopted by the Court (c). To this extent variation, its original effect, though it cannot be altered, may be explained by the conduct of the parties. And moreover, if both parties to a contract act on a common mistake as to the construction of it, this may amount to a variation of the contract by mutual consent (d). This is in truth another illustration of the leading principle. Here their conduct in performing the contract with variations would show an intention to vary it if the true construction were present to their minds. And it might be said that (on the same principle as in cases of acquiescence, &c.) they cannot mean to vary their contract if they do not know what it really is. But the answer is that their true meaning is to perform the contract at all events according to their present understanding of it, and thus the mistake is immaterial and ineffectual. Practically such a mistake is likely to represent a real original intention incorrectly expressed in the contract: so that principle and convenience agree in the result. Mistakes in award. We may also mention that there is no jurisdiction to set aside an award, or refer it back to the arbitrator, on the (a) Powell v. Smith, 14 Eq. 85. The dictum in Wycombe Ry. Co. v. Donnington Hospital, 1 Ch. 273, cannot be supported in any sense contrary to this. (b) Per Knight Bruce, L. J. Bentley v. Mackay, 4 D. F. J. 285. (c) Forbes v. Watt, L. R. 2 Sc. & D. 214. Evidence of the construc tion put on an instrument by some of the parties is of course inad. missible: McClean v. Kennard, 9 Ch. 336, 349. (d) 6 H. L. C. at p. 812-3. In the particular case the appellants were an incorporated company, and therefore it was said could not be thus bound: sed qu. ground of a mistake in fact or law, unless the arbitrator admits the mistake and desires the assistance of the Court to rectify it, or unless there is an actual excess of jurisdiction (a). cases where What then are the special classes of cases in which Special mistake is of importance, and which have given rise to the language held by our books on the subject? They are mistake believed to be as follows. is of importance. true 1. Where mistake is such as to exclude real consent, and 1. As so prevent the formation of any contract, there the seeming excluding agreement is void. Of this we shall presently speak at consent. large (Part 2 of this chapter). a true 2. Where a mistake occurs in expressing the terms of a 2. In real consent, the mistake may be remedied by the equitable expressing jurisdiction of the Court. Of this also we shall speak consent. separately (Part 3). nunciation 3. A renunciation of rights in general terms is under- 3. Restood not to include rights of whose actual or possible of rights. existence the party was not aware. This is in truth a particular case under No. 2. All these exceptions may be considered as more apparent than real. 4. Money paid under a mistake of fact may be recovered 4.Payment back. This is a real exception, and the most important of all. Yet even here the legal foundation of the right is not so much the mistake in itself as the failure of the supposed consideration on which the money was paid. (a) Dinn v. Blake, L. R. 10 C. P. 388. An arbitrator cannot of his own motion correct even a mani fest clerical error in his award after of money. |