same rules in equity as at law. Otherwise tion among the creditors" (a). In general the rule that a voluntary payment made with full knowledge of the facts cannot be recovered back is no less observed in equity than at common law. Thus a party who has submitted to pay money under an award cannot afterwards impeach the award in equity on the ground of irregularities which were known to him when he so submitted (b). It has also been laid down that in a common administration suit a legatee cannot be made to refund overpayments voluntarily made by an executor (c): but the context shows that this was said with reference to the frame of the suit and the relief prayed for rather than to any general principle of law: moreover it was not the executor, but the persons beneficially interested, who sought to make the legatee liable. But in Bate v. Hooper (d) the point arose distinctly: certain trustees were liable to make good to their testator's estate the loss of principal incurred by their omission to convert a fund of Long Annuities they contended that the tenant for life ought to recoup them the excess of income which she had received: but, as she had not been a willing party to any over-payment (e),¦ it was decided that she could not be called upon to refund the sums which the trustees voluntarily paid her. In an earlier case an executor paid interest on a legacy for several years without deducting the property tax, and it was held that he could not claim to retain out of subsequent payments the sums which he should have deducted from preceding ones (ƒ). Cases to be in this sub PART 2. MISTAKE AS EXCLUDING TRUE CONSENT. In the first chapter we saw that no contract can be formed dealt with when there is a variance in terms between the proposal and the division. acceptance. In this case the question whether the parties really meant the same thing cannot arise, for they have not even said the same thing. A court of justice can ascertain a common intention of the parties only from some adequate expression of (a) Ex parte James, 9 Ch. 609, 614, per James, L. J. (b) Goodman v. Sayers, 2 Jac. & W. 249, 263. (c) Per Lord Cottenham, Lichfield v. Baker, 13 Beav. 447, 453. (d) 5 D. M. G. 338. (e) She had in fact desired the trustees to convert the fund: see P. 340. (f) Currie v. Goold, 2 Madd. 163. it, and the mutual communication of different intentions is no such expression. We now have to deal with certain kinds of cases in which on the face of the transaction all the conditions of a concluded agreement are satisfied, and yet there is no real common intention and therefore no agreement. no real common First, it may happen that each party meant something, it may Where be a perfectly well understood and definite thing, but not the same thing which the other meant. Thus their minds never intention, each party met, as is not uncommonly said, and the forms they have gone meaning a through are inoperative. different thing. there is a common but common error. Next, it may happen that there does exist a common intention, Where which however is founded on an assumption made by both parties as to some matter of fact essential to the agreement. In intention this case the common intention must stand or fall with the founded assumption on which it is founded. If that assumption is on a wrong, the intention of the parties is from the outset incapable of taking effect. But for their common error it would never have been formed, and it is treated as non-existent. Here there is in some sense an agreement: but it is nullified in its inception by the nullity of the thing agreed upon. And it seems hardly too artificial to say that there is no real agreement. The result is the same as if the parties had made an agreement expressly conditional on the existence at the time of the supposed state of facts which state of facts not existing, the agreement destroys itself. In the former class of cases either one party or both may be in error: however that which prevents any contract from being formed is not the existence of error but the want of true consent. "Two or more persons are said to consent when they agree upon the same thing in the same sense": this consent is essential to the creation of a contract (a), and if it is wanting it matters not whether its absence is due to the error of one party only or of both. In the latter class of cases the error must be common to both parties. They do agree to the same thing, and it would be in (a) Indian Contract Act, 1872, s. 13; Hannen, J. in Smith v. Hughes, L. R. 6 Q. B. 609. Divisions of fundamental error. As to nature the same sense, but that the sense they intend, though possible as far as can be seen from the terms of the agreement, is in fact nugatory. As it is, their consent is idle; the sense in which they agree is, if one may so speak, insensible. In both sets of cases we may say that the agreement is nullified by fundamental error; a term it may be convenient to use in order to mark the broad distinction in principle from those cases where mistake appears as a ground of special relief. We proceed to examine the different kinds of fundamental error relating: A. To the nature of the transaction. B. To the person of the other party. C. To the subject-matter of the agreement. A. Error as to the nature of the transaction. On this the principal early authority is Thoroughgood's case (a). In that case the plaintiff, who was a layman and unlettered, had a of the transac- deed tendered to him which he was told was a release for arrears tion. of rent only. The deed was not read to him. To this he said Thoroughgood's case. "If it be no otherwise I am content"; and so delivered the deed. It was in fact a general release of all claims. Under these circumstances it was adjudged that the instrument so executed was not the plaintiff's deed. The effect of this case is "that, if an illiterate man have a deed falsely read over to him, and he then seals and delivers the parchment, it is nevertheless not his deed" (b) it was also resolved that "it is all one in law to read it in other words, and to declare the effect thereof in other manner than is contained in the writing"; but that a party executing a deed without requiring it to be read or to have its effect explained would be bound (i.e. to this extent, that he could not say it was not his deed, apart from any question of fraud or the like). Agreeably to this the law is stated in Sheppard's Touch (a) 2 Co. Rep. 9 b. (b) Per Cur. L. R. 4 C. P. 711. It had been long before said, in 21 Hen. 7, that "if I desire a man to enfeoff me of an acre of land in Dale, and he tell me to make a deed for one acre with letter of attorney, and I make the deed for two acres, and read and declare the deed to him as for only one acre, and he seal the deed, this deed is utterly void whether the feoffor be lettered or not, because he gave credence to me and I deceived him." (Keilw. 70, b, pl. 6). And see the older authorities referred to in note (c), next page. An anonymous case to the contrary, Skin. 159, is sufficiently disposed of by Lord St. Leonards' disapproval (V. & P. 173). stone, 56. But at present the mere reading over of a deed without an explanation of the contents would not be thought sufficient to show that the person executing it understood what he was doing (a). Mackin non. The doctrine has recently been expounded and confirmed by Foster v. the luminous judgment of the Court of Common Pleas in Foster v. Mackinnon (b). The action was on a bill of exchange against the defendant as indorser. There was evidence that the acceptor had asked the defendant to put his name on the bill, telling him it was a guaranty; the defendant signed on the faith of this representation and without seeing the face of the bill. The Court held that the signature was not binding, on the same principle that a blind or illiterate man is not bound by his signature to a document whose nature is wholly misrepresented to him./ A signature so obtained ་ ན་ "Is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended. . . . The position that if a grantor or covenantor be deceived or misled as to the actual contents of the iqves deed, the deed does not bind him, is supported by many authorities: see Com. Dig. Fait (B. 2) (c), and is recognized by Bayley, B. and the Court of Exchequer in the case of Edwards v. Brown (d). Accordingly it has recently been decided in the Exchequer Chamber that if a deed be delivered, and a blank left therein be afterwards improperly filled up (at least if that be done without the grantor's negligence), it is not the deed of the grantor: Swan v. North British Australasian Land Company (e). These cases apply to deeds; but the principle is equally applicable to other written contracts." (a) Hoghton v. Hoghton, 15 Beav. 278, 311. In the case of a will the execution of it by a testator of sound mind after having had it read over to him is evidence, but not conclusive evidence, that he understood and approved its contents: Fulton v. Andrew, L. R. 7 H. L. 448, 460 sqq., 472. (b) L. R. 4 C. P. 704, 711. (c) Cited also by Willes, J. 2 C. B. N. S. 624, and see 2 Ro. Ab. 28 S: the cases there referred to (30 E. 3. 31 b; 10 H. 6. 5, pl. 10) show that the principle was recognized in very early times. (e) 2 H. & C. 175, 32 L. J. Ex. The judgment proceeds to notice the qualification of the general rule in the case of negotiable instruments signed in blank, when the party signing knows what he is about, i.e. that the paper is afterwards to be filled up as a negotiable instrument (a). But here the defendant "never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature." He was no more bound than if he had signed his name on a blank sheet of paper, and the signature had been afterwards fraudulently misapplied (b). This decision shows clearly that an instrument executed by a man who meant to execute not any such instrument but something of a different kind is in itself a mere nullity, though the person so executing it may perhaps be estopped from disputing it if there be negligence on his part (c) : and that, notwithstanding the importance constantly attached by the law to the security of bona fide holders of negotiable. instruments, no exception is in this case made in their favour. Such The existence of a fundamental error of this sort, not merely questions in Equity as to particulars, but as to the nature and substance of the transgenerally actions, comes very seldom, if ever, to be considered by a court complicated with of equity, except in connexion with questions of fraud from which it is not always practicable to disentangle the previous question, Was there any consenting mind at all? There is enough however to show that on this question the principles applied in courts of equity and in courts of law are identical. circum stances of fraud. Kennedy v. Green. Thus in Kennedy v. Green the plaintiff was induced to execute an assignment of a mortgage, and to sign a receipt for money which was never paid to her, "without seeing what she was setting her hand to, by a statement that she was only completing her (a) Whether this is a branch of the general principle of estoppel or a positive rule of the law merchant was much doubted in Swan v. North British Australasian Land Co. in the Court below, 7 H. & N. 603, 31 L. J. Ex. 425. In the present judgment the Court of C. P. seems to incline to the latter view. (b) L. R. 4 C. P. at p. 712. (c) Cp. Simons v. Great Western Ry. Co. 2 C. B. N. S. 620, where the plaintiff was held not bound by a paper of special conditions limiting the company's responsi bility as carriers, which he had signed without reading it, being in fact unable at the time to read it for want of his glasses, and being assured by the railway clerk that it was a mere form. "The whole question was whether the plaintiff signed the receipt knowing what he was about": per Cockburn, C. J. at p. 624. Where a person intending to execute his will has by mistake executed a wrong document, such document cannot be admitted to probate even if the real intention would thereby be partially carried out: In the Goods of Hunt, L. R. 3 P. & D. 250. |