Where the proof shows that a party executed a release of a mortgage which had not been paid, intending to release another mortgage which had been paid, equity relieved against the consequences of the mistake. In this case the question arose between the immediate parties to the transaction. Where the rights of other parties, who have acted upon the faith of the document, are involved, the party making the mistake as to its nature must generally bear the consequences. So, if a man signs without reading it an instrument sent to him by his lawyer, gratuitously supposing it to be a paper of a different character, he is not entitled to relief. Where the maker of a promissory note is able to read, but, relying upon the representations made to him, neglects to do so, and is really unaware of the nature of his act, he is nevertheless liable to a bona fide holder for value.

It has been held, however, in some cases that one who by fraud is induced to sign a promissory note, thinking that he was witnessing a person's signature to a document or that the instrument is of a different character, is not liable on it even to a bona fide holder for value, provided he was not negligent."

C., who owed money to B., by making certain misrepresentations to A. induced A. to deliver goods to B. It was supposed by A. that he was selling them in the ordinary course of

4 Bond v. Dorsey, 65 Md. 310. When a judgment creditor signs a paper directing the judgment to be entered "satisfied" under a mistake and believing that he is signing a paper of a different tenor, and the judgment debt remains unpaid, the Court will order the entry of satisfaction to be struck out, when the interests of third parties are not thereby injuriously affected. Wilmer v. Brice, 91 Md. 71.

5 Kennerly v. Etiwan Co., 21 S. C. 226; Cannon v. Lindsay, 85 Ala. 198. See Comegys v. Clark, 44 Md. 108.

6 Upton v. Tribilcock, 91 U. S. 50; Johnston v. Patterson, 114 Pa. 398; Chapman v. Rose, 56 N. Y. 137.

7 Foster v. Mackinnon, L. R. 4 C. P. 711; Lewis v. Clay, 67 L. J. Q. B. 224. The former case has been much criticised and is probably bad law. As a matter of practice, when an action is brought on a note so obtained it is difficult for the plaintiff to convince a jury that he took the note without any notice of the defect in its origin. The burden of proof is cast upon the plaintiff when such defence is made. Stouffer v. Alford, 114 Md. 110: Arnd v. Heckert, 108 Md. 300.

business to B. and it was supposed by B. that the goods were delivered in settlement of C.'s indebtedness to him. Upon discovering the mistake, A. sued C., who had disposed of the goods. It was held that, although A. could have taken the goods if they had remained in C.'s possession and were distinguishable, yet he could not recover their value ex contractu, because there was no agreement between him and B. nor quasi ex contractu upon the ground of benefit conferred. "There is no equitable reason," said the Court, "why the plaintiff rather than the defendant should be relieved from the consequences of their trust in C. The defendant's equity is at least equal to that of the plaintiff."

$68. Made. This only avoids the contract when it is material for one party to know with whom he is contracting, and when he has a definite person in view. Thus A. who had bought ice from B. ceased to take it on account of dissatisfaction with B., and contracted for ice with C. Subsequently B. bought C.'s business and delivered ice to A. without notifying hum of his purchase until after the consumption of the ice. It was held that B. could not maintain an action for the price of the ice against A.1

Mistake as to the Person with Whom the Contract is

A man who carried on business under the name of the Cambria Coal Co. made a contract in that name with the defendant, who thought that he was dealing with a corporation having a capital stock, while in reality there was no such corporation. Upon learning this fact, the defendant repudiated the agreement. It was held that he had no right to do so, because he intended to deal with the Cambria Coal Company, and not with the individual trading under that

$ Concord Coal Co. v. Ferrin, 71 N. H. 35.

1 Boston Ice Co. v. Potter, 123 Mass. 28. A similar case in Boulton v. Jones, 2 H. & N. 564, where the person giving an order for goods had a set-off against the shopkeeper to whom it was addressed. In both cases A.'s offer to B. was accepted by C. under circumstances where A. had a reason for wishing to contract with B. and not with C.

name, and that consequently the contract was void on account of the defendant's mistake as to the identity of the person with whom the contract was made.2

If A. purchases ore of B., and without his knowledge C. delivers his ore in fulfilment of B.'s contract, the relation of vendor and purchaser does not exist between A. and C. In such case, after demand and refusal, however, or actual conversion, trover lies, or after sale of the ore by A. the tort may be waived and assumpsit maintained by C.3

But it would seem that where goods are ordered of one person and supplied by another, the latter has no claim against the purchaser ex contractu, unless he appropriates them after notice of the substitution, in which case he assents to the change.*

When the mistake as to the identity of the person is caused by the latter's fraudulent representations, there is some doubt as to whether the contract is void upon the ground of mistake or only voidable upon the ground of fraud, i. e., whether the deceived party makes a contract or does not make a contract. The question is important, because if the contract is only voidable, then bona fide purchasers from the person causing the mistake acquire a good title, while if the contract is void they do not. In the case of fraud generally a contract is made, because the party really gives his consent, and the fraud concerns merely the motive or ground. In a Massachusetts case, it was held that if A. fraudulently represents to B. that he is C., a merchant known by reputation to B. as a responsible person, and thereby induces B. to sell him

2 Fifer v. Clearfield Coal Co., 103 Md. 1.

3 Randolph Iron Co. v. Elliott, 34 N. J. L. 184.

4 Barnes v. Shoemaker, 112 Ind. 512; Carroll v. Benedictine Society, 88 Md. 317.

5 Edmunds v. Merchants' Transp. Co., 135 Mass. 283. If A. falsely represents to the drawer that he is B. and thus obtains possession of a check payable to B. which is cashed by the bank on which it is drawn, the loss caused by the fraud falls on the drawer of the check, and not on the bank. Land Title & Trust Co. v. N. W. Bank, 196 Pa

230; 50 L. R. A. 75.

goods, the sale is voidable only for fraud and not void for mistake.

But in Cundy v. Lindsay, where a man named Blenkarn, by imitating the signature of a reputable merchant named Blenkiron, induced plaintiff to sell him goods, the plaintiff supposing he was selling to Blenkiron, it was held that there was no sale, and that plaintiff was entitled to recover the value of the goods from bona fide purchasers to whom Blenkarn had transferred them. The only difference between these two cases is that in the former the personation was by word of mouth and in the latter by letter. In the former case the Court said that the vendor's intention "was to sell to the person present and identified by sight and hearing. The assumption of a false name is like any other fraud." It seems impossible to distinguish these cases upon any sound principle.

Cundy v. Lindsay is also in conflict with a case in which it appeared that X. rented a shop and a post-office box in a certain town, falsely assuming the name, A. Swannick. There was a responsible merchant in that town named Arthur Swannick. X. ordered goods from the plaintiff, who shipped them, after having received from a mercantile agency a favorable report concerning the standing of Arthur Swannick. The carrier, after first offering the goods to this person, delivered them to X., who receipted for them in the assumed name and absconded. In an action against the carrier for an improper delivery, it was held that he had not been guilty of negligence, and was not liable. The plaintiff contended that his purpose was to send the goods to the real Swannick, but, said the Court, "it is equally true that he intended to send them to the person with whom he was in correspondence. We think the more correct statement is that he intended to send them to the man who ordered them and agreed to pay for them, supposing erroneously that he was Arthur Swannick. It

7

6 L. R. 3 App. Cas. 459, where the House of Lords affirmed the judgment of the Court of Appeal in 2 Q. B. D. 96, which reversed the decision of the Queen's Bench in 1 Q. B. D. 348.

7 Samuel v. Chaney, 135 Mass. 278. Cf. Pacific Express Co. v. Shearer, 160 Ill. 215.

seems to us that the defendant, in answer to the plaintiff's claim, may well say, we have delivered the goods entrusted to us, according to your directions, to the man to whom you sent them, and who, as we were induced to believe by your acts in dealing with him, was the man to whom you intended to send them; we are guilty of no fault or negligence."

It is well settled that if a man falsely represents that he is the agent of another and thus obtains possession of property, there is no sale and the transaction is void. In this instance the seller intends to contract, not with the person before him but with a principal, who is either non-existent or has not authorized the contract. There is, consequently, no meeting of minds between seller and buyer. The offer or declaration of will by the seller is not met by a corresponding will on the part of any buyer, and the offer to sell not being made to the party present cannot be accepted by him.

8 In the somewhat similar case of Southern Express Co. v. Van Meter, 17 Fla. 783, a different conclusion was reached, and the carrier was held bound to deliver to the person had in view by the shipper, although the goods had been shipped upon the faith of a telegram to which that person's name had been forged. But in Western Union Tel. Co. v. Meyer, 61 Ala. 158, the decision accords with Samuel v. Chaney. The liability of a carrier, however, for wrongful delivery depends upon other principles than those regulating the question whether a sale is void or voidable.

9 Hardman v. Booth, 1 H. & C. 803; Hollins v. Fowler, L. R. 7 H. L. 757; Hentz v. Miller, 94 N. Y. 64; Hamet v. Letcher, 37 Ohio, 356; La Salle Brick Co. v. Coe, 65 Ill. App. 619. If A. represents himself as agent for an undisclosed principal, and thus obtains goods from B., there being no such principal there is no sale, and B. may replevy the goods from the bona fide transferees of A. Rodliffe v. Dallinger, 141 Mass. 1. If A. falsely represents himself to be a member of a certain firm and obtains from B. possession of property by means of a forged check of the firm, the contract is void, and an innocent person subsequently selling the property is liable to B. Alexander v. Swankhammer, 105 Ind. 81; Moody v. Blake, 117 Mass. 23. If A. fraudulently represents to B. that he is C.'s brother, and B. sells to C. through A. as his agent, there is no contract and the property in the goods does not pass. Barker v. Dinsmore, 72 Pa. 427. But where there is no false representation of agency, and the seller gratuitously supposes that the person buying from him is acting as another's agent, the property in the goods passes. Stoddart v. Ham, 129 Mass.