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Genus:
Thornton

v. Kemp-
ster.

Quantity.

Price.

In Thornton v. Kempster (g) the common broker of both parties gave the defendant as buyer a sale note for Riga Rhine hemp, but to the plaintiff as seller a note for St. Petersburg clean hemp. The bought and sold notes were the only evidence of the terms of the sale. The Court held that "the contract must be on the one side to sell and on the other side to accept one and the same thing": here "the parties so far as appeared had never agreed that the one should buy and the other accept the same thing; consequently there was no agreement subsisting between them."

In a case of this kind however there is not even an agreement in terms between the proposal and the accept

ance.

A curious case of error in quantity happened in Henkel v. Pape (h), where by the mistake of a telegraph clerk an order 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 in this case. It is settled however by former authority that 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” (i).

The principle of error in quantity preventing the formation of a contract is applicable to an error as to the

(g) 5 Taunt. 786.
(h) L. R. 6 Ex. 7.

(i) 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.

price of a thing sold or hired (k). 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. If the proposal is misunderstood by the acceptor, it is for him to show that the misunderstanding was reasonable. "Where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, the defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake"(1). A. makes an offer to B. to take a lease of a named farm, specifying as its contents land amounting to 250 acres ; B.'s agent, who meant to invite offers for only 200 acres, accepts A.'s offer without examining its particulars. Here there is a contract binding on B., and A. is entitled to specific performance to the extent of B.'s power to give it, with a proportionate reduction of the rent (m).

If, on the other hand, the proposal is by accident wrongly expressed, the proposer must show that the acceptor could not reasonably have supposed it in its actual form to convey the proposer's real intention. This occurred in Webster v. Cecil (n), where the defendant sent a written offer to sell property and wrote 1,1007. for 1,2007. by a mistake in a hurried addition of items performed on a separate piece of paper. This paper was kept by him and produced to the Court. On receiving the acceptance he discovered the mistake and at once gave notice of it. It appeared that the plaintiff had reason to know the real value of the property. Under these circumstances specific performance was refused. The case is

ductio quam quanti ego putavi.

(1) Tamplin v. James, 15 Ch. D. 215, 217 (Baggallay, L. J.) (m) McKenzie v. Hesketh, 7 Ch. D. 675.

(k) 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 con

(n) 30 Beav. 62.

attribute.

explained by James, L. J. as one "where a person snapped at an offer which he must have perfectly well known to be made by mistake" (o).

Material But sometimes, even when the thing which is the subject-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 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.

Conditions necessary to avoid transac

tion on this ground.

is

An error of this kind will not suffice to make the transaction void unless

(1) It is such that according to the ordinary course of dealing and use of language the difference made by the absence of the quality wrongly supposed to exist amounts to a difference in kind (p);

(2) and the error is also common to both parties.

Thus we read "Mensam argento coopertam mihi ignoranti pro solida vendidisti imprudens; nulla est emptio, pecuniaque eo nomine data condicetur" (q). Again, “Si aes pro auro veneat, non valet " ("). "If a bar [is] sold as gold, but [is] in fact brass, the vendor being innocent, the purchaser may recover" (s). 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,

(0) Tamplin v. James, 15 Ch. D. at p. 221.

(p) Savigny, Syst. § 137 (3.283). (2) D 18. 1. de cont. empt. 41 § 1. (r) D. eod. tit. 14, cited and adopted by the Court of Q. B. in

Kennedy v. Panama Mail, &c. Co., supra.

(s) Per Lord Campbell, C. J. Gompertz v. Bartlett, 2 E. & B. 849, 854, 23 L. J. Q. B. 65.

but this specific vessel, being golden. Then, and not otherwise, the sale is void.

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 (t). 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 that the 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 (u).

(t) L. R. 2 Q. B. 580, 587, p. 413,

supra.

(u) 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. 29 sqq.: 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. empt. 21 § 2.

Error must be common.

Smith v.
Hughes,

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 buy" (.), 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 case (y) where the defendant bought a parcel 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

expld. by Savigny, Syst. 3. 287.
The whole of Savigny's admirable
exposition of so-called error in sub-
stantia 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.

(x) Per Cur. Hall v. Conder, 2 C. B. N. S. 22, 41, 26 L. J. C. P. 138,

143.

(y) 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. empt. 11 § 5: Savigny, 3. 293, according to whom it makes no difference whether there be on the part of the vendor ignorance, passive knowledge, or even actual fraud: the sale being wholly void in any case.

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