the mistake which will operate to prevent the formation of the contract in the first instance will justify a withdrawal from it, or furnish a defense for a failure or refusal to perform it. No further statement of the principles involved is therefore necessary; but inasmuch as questions in reference to mistakes respecting the quality of the thing sold arise so frequently and give so much difficulty, it is thought that some further discussion of that aspect may be here permissible. § 843. Mistake as to the quality of the thing sold. It is in respect of the quality of the thing sold that the question of mistake most frequently arises, and in considering the question the limits of the discussion must be kept constantly in mind. In actual practice the parties usually exclude question by a warranty of the quality, but the question of warranty is not here involved. There may also be representations made respecting the quality which may prove untrue, but such representations, if innocently made, constitute misrepresentation, or, if fraudulently made, constitute fraud - both of which are subjects reserved for later consideration. § 844. Illustration. The question here can be made more plain perhaps by illustrations suggested by an actual case: A sells to B a quantity of oats. Under the circumstances old oats are worth more than new ones, but nothing is said as to the age of the oats. The oats in fact are new. 1. B thinks the oats are old ones, while A thinks they are new. 2. B thinks the oats are old ones. A knows that B thinks so, but A knows that they are new. 3. B thinks the oats are old ones, and thinks that A is selling them as old oats. A knows they are new oats, but does not know that B thinks he intends to sell them as old ones. 4. B thinks the oats are old ones, and thinks that A intends. to sell them as old oats. A knows that B thinks that he (A) is selling old oats, but does not mean to do more than simply to sell the oats as oats. Each of these cases requires separate consideration. § 845. 1. Mistake of buyer as to quality, the seller being ignorant of that mistake.- Where the buyer is mistaken as to the quality of the thing sold, but the seller is ignorant of this mistake, and there was no warranty, there can be no question that the buyer is bound. Mr. Benjamin1 has stated the rule thus: "Where the mistake is that of one party only to the contract, and is not made known to the other, the party laboring under the mistake must bear the consequences, in the absence of any fraud or warranty. If A and B contract for the sale of the cargo per ship Peerless, and there be two ships of that name, and A mean one ship and B intend the other ship, there is no contract. But if there be but one ship Peerless, and A sell the cargo of that ship to B, the latter would not be permitted to excuse himself on the ground that he had in his mind the ship Peeress, and intended to contract for a cargo by this last named ship. Men can only bargain by mutual communication; and if A's proposal were unmistakable, as if it were made in writing, and B's answer was an unequivocal and unconditional acceptance, B would be bound; however clearly he might afterwards make it appear that he was thinking of a different vessel. For the rule of law is general that, whatever a man's real intention may be, if he manifests an intention to another party, so as to induce that other party to act upon it, he will be estopped from denying that the intention as manifested was his real intention."3 846. So Blackburn, J., in a leading case, where a quantity of oats had been sold which the buyer believed were old oats, but which in fact were new, said: "In this case I 1 Benjamin on Sale (6th Am. ed.), § 417. Toll v. South Eastern Ry. Co., 12 C. 2 Citing Raffles v. Wichelhaus, 2 H. Co., L. R. 3 Q. B. 584; Carr v. London, & C. 906. 3 Citing per Lord Wensleydale in Freeman v. Cooke, 2 Ex. 654; Doe v. Oliver, and cases collected in notes to it, 2 Sm. L. C. 803 (ed. 1887); Cornish v. Abington, 4 H. & N. 549; Alexander v. Worman, 6 H. & N. 100; Van etc. Ry. Co., L. R. 10 C. P. 307, per Brett, J., at p. 316. 4 Smith v. Hughes (1871), L. R. 6 Q. B. 597. In this case it appeared that plaintiff, having oats to sell, offered them by sample to the defendant through his manager. There agree that on the sale of a specific article, unless there be a warranty making it part of the bargain that it possesses some particular quality, the purchaser must take the article he has bought though it does not possess that quality." And Cockburn, C. J., in the same case, said: "I take the true rule to be, that where a specific article is offered for sale without express warranty, or without circumstances from which the law will imply a warranty as where, for instance, an article is ordered for a specific purpose,- and the buyer has full opportunity of inspecting and forming his own judgment, if he chooses to act on his own judgment, the rule caveat emptor applies. If he gets the article he contracted to buy, and that article corresponds with what it was sold as, he gets all he is entitled to, and is bound by the contract. Here the defendant agreed to buy a specific parcel of oats. The oats were what they were sold as, namely, good oats according to the sample. The buyer persuaded himself they were old oats, when they were not so; but the seller neither said nor did anything to contribute to his deception. He has himself to blame. The question is not what a man of scrupulous morality or nice honor would do under such circumstances. The case of the purchase of an estate in which there is a mine under the surface, but the fact is unknown to the seller, is one in which a man of tender conscience or high honor would be unwilling to take advantage of the ignorance of the seller; but there can be no doubt that the contract for the sale of the estate would be binding." was a bargain made for them and testimony was that he was a horse trainer and never bought new oats if he could get old ones; that plaintiff said the oats were old ones, and that he, defendant, supposed them to be old. "On cross-examination, witness hesitated and contradicted himself somewhat as to whether the word 'old' was used at the time of making the contract." There was also evidence that the price paid was very high for new oats, but also that oats were then very scarce. § 847.2. Mistake of buyer as to quality, seller knowing of that mistake.— And so though the seller knows that the buyer is mistaken as to the quality, the buyer is still bound if the seller has done nothing to deceive him. The seller is not bound to prevent the buyer from deceiving himself. Thus in the case referred to in the last section,' Blackburn, J., continues: "And I agree that even if the vendor was aware that the purchaser thought the article possessed that quality [age], and would not have entered into the contract unless he had so thought, still the purchaser is bound, unless the vendor was guilty of some fraud or deceit upon him, and that a mere abstinence from disabusing the purchaser of that impression is not fraud or deceit; for whatever may be the case in a court of morals, 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." And Cockburn, C. J., said: "Suppose a person to buy a horse without a warranty, believing him to be sound, could it be contended that it would be open to him to say that, as he had intended to buy a sound horse, and the seller to sell an unsound one, the contract was void, because the seller must have known from the price the buyer was willing to give, or from his general habits as a buyer of horses, that he thought the horse was sound?" § 848. 3. Mistake of buyer as to the quality promised, seller not knowing of that mistake.- If the parties are bound, as has been seen in the last section, where one was mistaken as to the quality and the other knew of that mistake but did nothing to cause it, then a fortiori must they be bound where one party is mistaken as to the quality promised, but the other is ignorant of the mistake. This is not a case of mutual mistake or of mistake as to the subject-matter, but a mistake as to the quality or attributes of an agreed chattel. In the case cited in the preceding sections, Hannen, J., said: "It is essential to the creation of a contract that both parties should agree to the same thing in the same sense. Thus, if two persons enter into 1 Smith v. Hughes (1871), L. R. 6 Q. B. 597. 2 Smith v. Hughes, supra. an apparent contract concerning a particular person or ship, and it turns out that each of them, misled by a similarity of name, had a different person or ship in his mind, no contract would exist between them. But one of the parties to an apparent contract may, by his own fault, be precluded from setting up that he had entered into it in a different sense to that in which it was understood by the other party. Thus in the case of a sale by sample, where the vendor, by mistake, exhibited a wrong sample, it was held that the contract was not avoided by this error of the vendor." 2 4 § 849.4. Mistake of one party as to quality promised by the other, known to the latter.-"But if in the last mentioned case," continues Hannen, J., in the opinion quoted from in the preceding section,3 "the purchaser, in the course of the negotiations preliminary to the contract, had discovered that the vendor was under a misapprehension as to the sample he was offering, the vendor would have been entitled to show that he had not intended to enter into the contract by which the purchaser sought to bind him. The rule of law applicable to such a case is a corollary from the rule of morality cited from Paley that a promise is to be performed 'in that sense in which the promisor apprehended, at the time, the promisee received it,' and may be thus expressed: The promisor is not bound to fulfill a promise in a sense in which the promisee knew at the time the promisor did not intend it.' And in considering the question, in what sense a promisee is entitled to enforce a promise, it matters not in what way the knowledge of the meaning in which the promisor made it is brought to the mind of the promisee, whether by express words, or by conduct, or previous dealings, or other circumstances. If by any means he knows that there was no real agreement between him and the promisor, he is not entitled to insist that the promise shall 1 Citing Raffles v. Wichelhaus, 2 H. & C. 906. 3 Smith v. Hughes, supra. 4 Paley, Moral and Political Philos 2 Citing Scott v. Littledale, 8 E. & ophy, book III, ch. V. B. 815. |
