Sec 184

A. cannot, by merely sending goods to B., establish with B. a contractual relation.3 A contract requires the assent of two minds to one thing; and the mere reception of goods by B., and even their consumption, he not understanding the transaction was meant for a sale, and not negligently misleading A., does not make him liable for their price.4 This rule has been pushed to its extreme limit in the following case: The defendants sent an order for goods to B., who in the mean time had sold out to C, the plaintiff. C. forwarded the goods to the defendants without notifying them of the change, and then sent on a bill in his own name. This the defendants refused to pay, on the ground that they had never contracted with the plaintiff, and that by this transfer they might be cut out from a setoff they might otherwise have had against B. It was held that the plaintiff was not entitled to recover.5 And it is a settled rule in the law of agency that a previously undisclosed principal who intervenes in a suit against third parties does so subject to all the equities attaching to his agent.6 " Every man has a right to elect what parties he will deal with;"1 and if third parties come in as principals in a contract in which they had not been previously known, they must do so subject to any set-off or cross-claims against the party actually contracted with. And, for the same reason, an agent suing in his own name for the principal's debt is subject to the principal's equities.2

To recover on contract it is necessary that the contract should have been made with the party suing.

1 Wh. Cr. L., 8th ed. sec 1135 et seq.

2 Supra, sec 180. That a fraudulent contract cannot be rescinded so as to affect bona fide third parties, see infra, sec 291; that party without title cannot pass title, see infra, sec 292.

3 Supra, sec 22.

4 See cases, supra, sec 22, and infra, sec 506-7.

5 Boulton v. Jones, 2 H. & N. 564; see to same effect, Mitchell v. Lapage, Holt N. P. 253 ; Boston Ice Co. v.

Potter, 123 Mass. 28; and comments in Pollock, 408, 458; Benj. on Sales, 47, 324. As to rulings in questions of agency, see Wh. on Agency, sec 447, 465, 467, 723, 741, 755 ; and authorities cited supra, sec 22.

6 Wh. on Agency, sec 405, 466, 722, 723, 741; Humble v. Hunter, 12 Q. B. 311; Rabone v. Williams, 7 T. R. 360 ; Warner v. McKay, 1 M. & W. 595; Leeds v. Ins. Co., 6 Wheat. 565 ; Traub v. Millikin, 57 Me. 63 ; Winchester v.

Sec 185

Signatures may be put unintentionally to documents under the following circumstances:there is no contract because there is no consent ;1 though a party signing negligently may estop himself from disputing with bona fide third parties the binding effect of his signature;2 and to sign negotiable paper in blank works ordinarily such an estoppel.3 Whether a document under such circumstances is void, or only voidable, has been much discussed. There are high authorities to the effect that a deed executed by mistake, in reliance on a solicitor, is absolutely void when it is in conflict with the real intentions of the party executing.4 But, as is pointed out by Mr. Pollock, this is inconsistent with Thoroughgood's case, and with a recent ruling of the court of appeal in chancery, in which it was said by Mellish, L. J., that "when a man knows that he is conveying or doing something with his estate, but does not ask what is the precise effect of the deed, because he is told that it is a mere form, and has such confidence in his solicitor as to execute the deed in ignorance, then a deed so executed, although it may be voidable on the ground of fraud, is not a void deed."5 And on principle we may hold that, when the filling up of a blank is by an agent, the document, though invalid as between agent and principal, may bind the latter as to third parties to whom he had recognized the agency, and ma be subsequently ratified by him so as to validate the original transaction.6 But whether mere negligence can estop a party from showing that a deed is not actually his own has been doubted.7 Of course, when a party intentionally signs a blank cheque or a blank note, he binds himself as to bona fide third parties, even though the blank be filled differently from what he intended.1 And there is high authority to the effect that this is a doctrine of the law merchant, aside from the question of estoppel.2

1. A party who cannot read has a document falsely read to him, which he signs, believing it to be entirely different from what it is. In this case he is not in any way bound by his signature. There is no contract, for there is no consent to a common thing. And if the party reading to him is one in whom he could without negligence confide, he cannot be made liable by way of estoppel on his signature.3.

2. A party who can read has a document shown to him, and its purport falsely stated to him by a person in whom he is entitled to confide. In this case, also, it is argued that.

Signature to wrong document does not bind.

Howard, 97 Mass. 303; Kingsley v. Davis, 104 Mass. 178 ; Lock's App., 72 Penn. St. 491.

1 Chapman, C. J., Winchester v. Howard, 97 Mass. 303 ; infra, sec 507, 784.

2 Ibid. ; infra, sec 1021.

3 Thoroughgood's case, 2 Co. Rep. 9 b; Swan v. Land Co., 2 H. & C. 175 ; Kennedy v. Green, 3 M. & K. 717 ; Trambley v. Ricard, 130 Mass. 259; Hallenbeck v. Dewitt, 2 Johns. 404; Bauer v. Roth, 4 Rawle, 83; Briggs v. Evart, 51 Mo. 249 ; Wright v. Macpike, 70 Mo. 175. How far a party is liable for the consequences of not reading document, see supra, sec 22; infra, sec 196, 572. As to undue influence, see supra, sec 58.

In Foster v. Mackinnon, L. R. 4 C. P. 704, the judgment of the court, as adopted by Mr. Pollock (3d ed. 429), says : " The position that, if a grantor or covenantor be deceived or misled as to the actual contents of the deed, the deed does not bind him, is supported by many authorities ; see Com. Dig. Fait (B. 2) ; and is recognized by Bayley, J., and the court of exchequer, in Edwards v. Brown, 1 C. & J. 312. Accordingly it has recently been decided, in the exchequer chamber, that if a deed be delivered, and a blank left therein be improperly filled up (at least if that be done without the grantor's negligence), it is not the deed of the grantor. Swan v. Land Co., 2 H. & C. 175. These cases apply to deeds ; but the principle is equally applicable to other written contracts." If induced to sign by false representations of legal effect, the party defrauded may elect to rescind. Infra, sec 201. See also cases cited, infra, sec 264, to the effect that a surreptitious substition avoids.

1 Sug. V. & P. 173; Foster v. Mac-kinnon, L. R. 4 C. P. 704, and cases cited infra, sec 264; De Camp v. Hamme, 29 Oh. St. 467, though see infra, sec 201. As to undue influence, see supra, sec 58.

2 Greenfield Bk. v. Crafts, 4 Allen, 447; Greenfield's Est., 14 Penn. St. 489 ; Garrett v. Gonter, 42 Penn. St. 143 ; De Camp v. Hamme, 29 Oh. St. 473 ; see infra, sec 1043.

3 Abhott v. Rose, 62 Me. 194; Chapman v. Rose, 56 N. Y. 137; and cases cited Wald's Pollock, 402. As to signatures in blank, see infra, sec 204.

4 Vorley v. Cooke, 1 Giff. 230; Ogil-vie v. Jeaffreson, 2 Giff. 353; Empson's case, 9 Eq. 597.

5 Hunter r.Walters, L. R. 7 Ch. 88 ; and see remarks of Scheiff, cited supra, sec 174.

6 Forsyth v. Day, 46 Me. 176 ; Greenfield Bk. v. Crafts, 4 Allen, 447 ; Garrett v. Gonter, 42 Penn. St. 143; Union Bk. v. Middletown, 33 Conn. 95: Livings v. Wiler, 32 111. 387.

7 Hunter v. Walters, L. R. 7 Ch. 75 ; Halifax Union v. Wheelwright, L. R. 10 Ex. 192 ; see infra, sec 1043.

3. Between the parties an unauthorized filling of a blank, not only does not bind, but amounts to a forgery. It has, in fact, been expressly ruled that where an agent has authority to fill with a particular sum a blank in a paper signed by his principal, it is forgery to fill the blank with a larger sum.3 And it has also been held to be forgery to fill without authority a cheque already signed.* In cases where a forgery can impose no legal obligation, it would follow that there could be no suit between parties or privies upon a document so filled up. But a party by negligently permitting his signature to be so used may estop himself from disputing it.5.

4. Where a person signs a document as party and not as attesting witness, as he intends, this is a mistake which equity will correct, although a negligent signature even of this class may impose liability as to bona fide third parties.6.

5. A mistake made by a scrivener in engrossing a document will be so rectified by a chancellor as to make the document conform to the actual intention of the parties.7.