A mistake on the part of one of the parties to a contract, as a misunderstanding in respect to the nature or qualities of the subject-matter, or a mistake in fixing or. expressing the terms, not induced by the conduct of the other party, has as a rule no effect upon the contract.8 But the law will not allow one party to accept a promise, which he knows that the other party understands in a different sense from that in which he understands it.7 If the mistake or misunderstanding of the one party as to the nature of the promise is known to the other, or if the other has reason to know it, the contract is voidable.8 Thus where a person was sued for refusing to accept some oats which he had agreed to buy from the plaintiff, on the ground that he had agreed and intended to buy old oats, and that those supplied were new, the jury were told that, if the plaintiff knew that the defendant "thought he was buying old oats," then he could not recover. The court of review, however, held that this was not enough to avoid the sale; that in order to do so the plaintiff must have known that the defendant "thought he was being promised old oats." It was not knowledge of the misapprehension of the quality of the oats, but knowledge of the misapprehension of the quality promised, which would defeat a recovery.9 So where the seller, intending to offer cattle for $261.50, by a slip of the tongue offered them for $161.50, and the buyer, having good reason to suppose that the price named was a mistake, accepted the offer and paid $20 on account, and the seller tendered back the $20, and repudiated the sale, it was held that the buyer was not entitled to maintain replevin.10 And where by mistake the plaintiff in compiling a rate sheet printed the fare at $21.25 instead of $36.70, and the defendant, who had discovered the mistake, purchased tickets at the printed price, it was held that the plaintiff could rescind.11
3 Ward v. Hobbs, 3 Q. B. Div. 150, 4 App. Cas. 13; Beninger v. Corwin, 24 N. J. Law, 257; Paul v. Hadley, 23 Barb. (N. Y.) 521; Morris v. Thompson, 85 I11. 16. See "Sales," Dec. Dig. (Key-No.) § 41; Cent. Dig. § 84
4 Hoe v. Sanborn, 21 N. Y. 552, 78 Am. Dec. 163; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440; Marsh v. Webber, 13 Minn. 109 (Gil. 99); Cecil v. Spurger, 32 Mo. 462, 82 Am. Dec. 140; Patterson v. Kirkland, 34 Miss. 423; Johnson v. Wallower, 18 Minn. 288 (Gil. 262); Cardwell v. McClelland, 3 Sneed (Tenn.) 150; Waters v. Mattingley, 1 Bibb (Ky.) 244, 4 Am. Dec. 631; Maynard v. Maynard, 49 Vt 297; Paddock v. Strobridge, 29 Vt. 470; Graham v. Stiles, 38 Vt. 578; Dowling v. Lawrence, 58 Wis. 282, 16 N. W. 552. Sale of cattle known to be infected with contagious disease: Jeffrey v. Bige-low, 13 Wend. (N. Y.) 518, 28 Am. Dec. 476; GRIGSBY v. STAPLETON, 94 Mo. 423, 7 S. W. 421, Throckmorton, Cas. Contracts, 187. The rule does not apply if the sale is "with all faults." West v. Anderson, 9 Conn. 107, 21 Am. Dec. 737; Whitney v. Boardman, 118 Mass. 242. Otherwise if seller makes efforts to prevent buyer from discovering defects. West v. Anderson, supra; note 98, supra. See "Sales," Dec. Dig. (Key-No.) § 4l; Cent. Dig. § 84.
5 Minor v. Sharon, 112 Mass. 477, 17 Am. Rep. 122; Cesar v. Karutz, 60 N. Y. 229, 19 Am. Rep. 164; Cutler v. Hamlen, 147 Mass. 471, 18 N. E. 397, 1 L. R. A. 429. See "Sales," Dec. Dig. (Keg-No.) § 41; Cent. Dig. § 84
6 Scott v. Littledale, 8 El. & Bl. 815; People's Bank v. Bogart, 81 N. Y. 101. 37 Am. Rep. 481; Laidlaw v. Organ, 2 Wheat. 178, 4 L. Ed. 214; Borden v. Railroad Co., 113 N. C. 570, 18 S. E. 392, 37 Am. St. Rep. 632; Griffin v. O'Neil, 48 Kan. 117, 29 Pac. 143; Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229; Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255. -See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-J,19.
7Anson, Cont. (8th Ed.) 138.
This subject is treated by Sir William Anson and many other writers under mistake, but most of the courts of this country treat it as a question of fraud. The latter classification would seem the more appropriate, since the effect of a mistake of the character under consideration is merely to render the contract voidable,, and not void.
8 Smith v. Hughes, L. R. 6 Q. B. 597; Thayer v. Knote, 59 Kan. 181, 52 Pac. 433. Sir William Anson says "void." Anson, Conk (8th Ed.) 138. See "Sales," Dec. Dig. (Key-No.) § 36; Cent. Dig. §§ 63, 6k.
9 Smith v. Hughes, supra. See "Contracts;' Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
10 Harran v. Foley, 62 Wis. 584, 22 N. W. 837. See, also, Webster v. Cecil, 30 Beav. 62; Tamplin v. Jones, 15 Ch. D. 221; Gerrard v. Frankel, 30 Beav. 445; Everson v. Granite Co., 65 Vt. 658, 27 Atl. 320. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
11 Shelton v. Ellis, 70 Ga. 297. A contract to furnish the government with many articles at stipulated prices, among them shucks at 60 cents per pound, was unenforceable as to the shucks, whore the government showed that they were worth from $12 to $35 per ton; that it was customary to buy them by the hundred weight; and that the seller failed to strike out the word "pounds" on the printed form of proposal, and to insert "hundred weight" instead, though the seller insisted that there was no mistake on his part, Hume v. United States, 132 U. S. 406, 10 Sup. Ct. 134, 33 L. Ed. 393. See, also, Mof-fett, Hodgkins & Clarke Co. v. City of Rochester, 178 U. S. 373, 20 Sup. Ct. 957, 44 L. Ed. 1108. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.