Price. intended to be for three rifles only was transmitted as an order for fifty. The only point in dispute was whether the defendant was bound by the message so transmitted, and it was held that the clerk was his agent only to transmit the message in the terms in which it was delivered to him. The defendant had accepted three of the fifty rifles sent, and paid the price for them into Court: therefore the question whether he was bound to accept any did not arise, but there is sufficient authority to make it very probable if not certain that he was not. For when goods ordered are sent together with goods not ordered, the buyer may refuse to accept any, at all events "if there is any danger or trouble attending the severance of the two" (a). The principle of error in quantity preventing the formation of a contract is applicable to an error as to the price of a thing sold or hired (b). As there cannot be even the appearance of a contract when the acceptance disagrees on the face of it with the proposal, this question can arise only when there is an unqualified acceptance of an erroneously expressed or understood proposal. Such a case occurred in Webster v. Cecil (c), where the defendant sent a written offer to sell property and wrote £1,100 for £1,200 by a mistake in a hurried addition of items performed on a separate piece of paper, kept by him, and produced to the Court. On receiving the acceptance he discovered the mistake and at once gave notice of it. Under these circumstances specific performance was refused: although if the origin of the mistake had not been clear, or if there had been any delay in giving notice, or, perhaps, if it had not appeared, as it did, that the plaintiff had reason to know the real value of the property, and therefore that the letter he received could not express the defendant's real intention, it is conceived that the defendant could not have been heard to allege that he did not (a) Levy v. Green, 8 E. & B. 575, in Ex. Ch. 1 E. & E. 969; 27 L. J. Q. B. 111, 28 ib. 319; per Byles, J. 1 E. & E. at p. 976 and cp. Hart v. Mills, 15 M. & W. 85, where a new contract was implied as to part of the goods which was retained: but in that case the quality as well as the quantity of the goods sent was not in conformity with the order. (b) D. 19. 2. locati. 52. Si decem tibi locem fundum, tu autem existimes quinque te conducere, nihil agitur. Sed et si ego minoris me locare sensero, tu pluris te conducere, utique non pluris erit conductio quam quanti ego putavi. (c) 30 Beav. 62. mean what he said (a). As usual in such cases, the decision left the legal rights of the parties open. It is submitted however that the agreement was void at law. attribute. But sometimes, even when the thing which is the subject- Material matter of an agreement is specifically ascertained, the agreement may be avoided by material error as to some attribute of the thing. For some attribute which the thing in truth has not may be a material part of the description by which the thing was contracted for. If this is so, the thing as it really is, namely without that quality, is not that to which the common intention of the parties was directed, and the agreement is void. An error of this kind will not suffice to make the transaction void unless to avoid (1) It is such that according to the ordinary course of dealing Conditions and use of language the difference made by the absence of the necessary quality wrongly supposed to exist amounts to a difference in transackind (b); (2) and the error is also common to both parties. Thus we read "Mensam argento coopertam mihi ignoranti pro solida vendidisti imprudens; nulla est emtio, pecuniaque eo nomine data condicetur" (c). Again, "Si aes pro auro veneat, non valet" (d). "If a bar [is] sold as gold, but [is] in fact brass, the vendor being innocent, the purchaser may recover" (e). This, however, is not to be taken too largely. What does pro auro, as and for gold, imply as here used? It implies that the buyer thinks he is buying, and the seller that he is selling, a golden vessel: and further, that the object present to the minds of both parties as that in which they are trafficking—the object of their common intention-is, not merely this specific vessel, but this specific vessel, being golden. Then, and not otherwise, the sale is void. (a) This statement would be unqualified but for what was said in Wycombe Railway Company v. Donnington Hospital, 1 Ch. 268, 273, by an authority entitled to the highest respect. But surely it cannot be true as a general proposition that a purchaser is never to have specific performance against a vendor who swears that he understood the con tract in a different sense: see Powell (b) Savigny, Syst. § 137 (3. 283.) (e) Per Lord Campbell, C. J. Gompertz v. Bartlett, 2 E. & B. 849, 854, 23 L. J. Q. B. 65. tion on this ground. Error must be common. If the seller fraudulently represents the vessel as golden, knowing that it is not, the sale is (as between them) not void but voidable at the option of the buyer. For if both parties, have been in innocent and equal error it would be unjust to let either gain any advantage: but a party who has been guilty of fraud has no right to complain of having been taken at his word; and it is conceivable that it might be for the interest of the buyer to affirm the transaction, as if the vessel supposed by the fraudulent seller to be of worthless base metal should turn out to be a precious antique bronze. Probably the results are the same if the buyer's belief is founded even on an innocent representation made by the seller. This seems to be assumed by the language of the Court in Kennedy v. Panama, &c. Mail Company (a). We shall recur to this point presently. Or in an ordinary case the buyer may choose to treat the seller's affirmation as a warranty, and so keep the thing and recover the difference in value. Again, if the sale of the specific vessel is made in good faith with a warranty of its quality, the vendor must compensate the/ purchaser for breach of the warranty, but the sale is not even voidable. For the existence of a separate warranty shows thatthe matter of the warranty is not a condition or essential part of the contract, but the intention of the parties was to transfer the property in the specific chattel at all events. Whether a particular affirmation as to the quality of a specific thing sold be only a warranty, or the sale be "conditional, and to be null if the affirmation is incorrect," is a question of fact to be determined by the circumstances of each case (1). Accordingly, when the law is stated to be that "a party is not bound to accept and pay for chattels, unless they are really such as the vendor professed to sell, and the vendee intended to (a) L. R. 2 Q. B. 580, 587, p. 386, supra. (b) See per Wightman, J. Gurney v. Womersley, 4 E. & B. 133, 142, 24 L. J. Q. B. 46: the cases collected in the notes to Cutter v. Powell, 2 Sm. L. C. 27: Heyworth v. Hutchinson, L. R. 2 Q. B. 447: Azémar v. Casella, L. R. 2 C. P. 431, 677. The Roman law is the same as to a sale with warranty: D. 19. 1. de act. emt. 21 § 2. expld. by Savigny, Syst. 3. 287. The whole of Savigny's admirable exposition of so-called error in substantia in §§ 137, 138, (3. 276, sqq.) deserves careful study. Of course the conclusions in detail are not always the same as in our law: and the fundamental difference in the rules as to the actual transfer of property in goods sold (as to which see Blackburn on the Contract of Sale, Part 2, Ch. 3) must not be overlooked. But this does not affect the usefulness and importance of the general analogies. buy" (a), the condition is not alternative but strictly conjunctive. A sale is not void merely because the vendor professed to sell, or the vendee intended to buy, something of a different kind It must be shown that the object was in fact neither such as the vendor professed to sell nor such as the vendee intended to buy. And so in the case supposed the sale will not be invalidated by the mistake of the buyer alone, if he thinks he is buying gold; not even if the seller believes him to think so, and does nothing to remove the mistake, provided his conduct does not go beyond passive acquiescence in the self-deception of the buyer. In a late case (b) where the defendant bought a parcel Smith v. Hughes. of oats by sample believing them to be old oats, and sought to reject them when he found they were new oats, it was held that "a belief on the part of the plaintiff that the defendant was making a contract to buy the oats of which he offered him a sample under a mistaken belief that they were old would not relieve the defendant from liability unless his mistaken belief was induced by some misrepresentation of the plaintiff or concealment by him of a fact which it became his duty to communicate. In order to relieve the defendant it was necessary that the jury should find not merely that the plaintiff believed the defendant to believe that he was buying old oats, but that he believed the defendant to believe that he, the plaintiff, was contracting to sell old oats." "There is no legal obligation on the vendor to inform the purchaser that he is under a mistake not induced by the act of the vendor" (c); and therefore the question is whether we have to do merely with a motive operating on the buyer to induce him to buy, or with one of the essential conditions of the contract (). "Videamus, quid inter ementem et vendentem actum sit" (e): "the intention of the parties governs in the making and in the construction of all contracts" (f): this is the fundamental rule by which all questions, (a) Per. Cur. Hall v. Conder, 2 C. B. N. S. 22, 41, 26 L. J. C. P. 138, 143. (b) Smith v. Hughes, L. R. 6 Q. B. 597: per Cockburn, C. J. p. 603; per Hannen, J. p. 610. The somewhat refined distinction here taken does not seem to exist in the civil law. D. 19. 1. de act. emt. 11. § 5: Savigny, 3. 293, according to whom it makes no difference whether there be on the part of the vendor igno- (c) Ibid. per Blackburn, J. p. 607. (f) Per Cur. Bannerman v. White, Cox v. Cases of even the most refined, on the existence and nature of a contract must at last come to be decided. Another curious case of this class is Cox v. Prentice (a). The declaration contained a count in assumpsit as on a warranty, and the common money counts. The nature of the material facts will sufficiently appear by the following extract from the judgment of Bayley, J. :— "What did the plaintiffs bargain to buy and the defendants to sell? They both understand [sic] that the one agreed to buy and the other to sell a bar containing such a quantity of silver as should appear by the assay, and the quantity is fixed by the assay and paid for; but through some mistake in the assay the bar turns out not to contain the quantity represented but a smaller quantity. The plaintiff therefore may rescind the contract and bring money had and received, having offered to return the bar of silver." And, by Dampier, J. :-"The bargain was for a bar of silver of the quality ascertained by the assay-master, and it is not of that quality. It is a case of mutual error." These judgments went farther than was necessary to the decision (), for a verdict had been taken only for the difference in value. It is important to distinguish from the cases above considered mis- another class where persons who have contracted for the purdescription on sales of chase of real property or interests therein have been held real proentitled at law (c) as well as in equity (d) to rescind the contract perty distinguished, on the ground of a misdescription of the thing sold in some particular materially affecting the title, quantity, or enjoyment of the estate. In some of these cases language is used which, taken alone, might lead one to suppose the agreement absolutely void; and in one or two (e.g. Torrance v. Bolton) there is some real difficulty in drawing the line. But they really belong to the head of Misrepresentation, or else (which may be the (a) 3 M. & S. 344. (b) And certainly farther than the civil law see D. 18. 1. de cont. emt. 14, where though a bracelet 66 quae aurea dicebatur" should be found "magna ex parte aenea," yet "venditionem esse constat ideo, quia auri aliquid habuit." (c) Flight v. Booth, 1 Bing. N. C. 370, Phillips v. Caldeleugh, L. R. 4 Q. B. 159. (d) Stanton v. Tattersall, 1 Sm. & G. 529, Earl of Durham v. Legard, 34 Beav. 611, Torrance v. Bolton, 8 Ch. 118. See authorities collected in Dart, V. & P. 126. |