An agreement may be void where there is a mistake as to the identity of the subject-matter; as, for instance, where the contract is in reference to a thing- of a certain name, and one of the parties thinks he is contracting for one thing that answers the description, while the other party thinks it is something else which also answers the description. Thus, where a person agreed to buy a cargo "to arrive ex Peerless from Bombay," and there were two ships of that name, and the buyer meant one, and the seller the other, it was held that there was no contract.31
The things meant by the parties must have fitted the description, or there is no mistake. If, in the case above mentioned, the buyer had meant a ship of a different name, he would have been bound by the terms of his contract. Unless the description admits of more meanings than one, the party setting up mistake can only do so by showing that he meant something different from what he said, and, as we have seen, he cannot do this. Nor will a mere misnomer of the subject-matter of a contract entitle either party to avoid it if the contract itself contains such a description of its subject-matter as practically identifies it.32
Same - Mistake as to Nature and Essential Qualities of Subject-Matter If the parties are agreed as to the terms and subject-matter of the contract, it is complete by mutual assent, notwithstanding that the parties may be totally mistaken in the motives which induced the assent. The fact that the subject-matter of the contract possessed, or failed to possess, qualities which the parties both believed, or did not believe, it to possess, is immaterial.83 The parties may, incontract will be valid, notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party that would affect any other contract." Perkins v. Gay, 3 Serg. & R. (Pa.) 327, 8 Am. Dec. G53. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
31 Raffles v. Wichelhaus, 2 Hurl. & C. 906. And see Gardner v. Lane, 9 Allen (Mass.) 492, 85 Am. Dec. 779; Kyle v. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560; Thornton v. Kempster, 5 Taunt. 786; Cutts v. Guild, 57 N. Y. 229; Sheldon v. Capron, 3 R. I. 171; Harvey v. Harris, 112 Mass. 32. Where on a sale of land one party thinks he is buying one tract, and the other party thinks he is selling a different tract, there is no contract. Kyle v. Kavanagh, supra; Stong v. Lane, 66 Minn. 94, 68 N. W. 765. And see IRWIN v. WILSON, 45 Ohio St. 426, 15 N. E. 209, Throckmorton Cas. Contracts, 176. ' See "Sales," Dec. Dig. (Key-No.)' § 86; Cent. Dig. §§ 68, 64.
32 Ionides v. Pacific Ins. Co., L. R. 6 Q. B. 686; Hazard v. Insurance Co., 1 Sumn. 218, Fed. Cas. No. 6.282. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
WOOD v. BOYNTON, 64 Wis. 2G5, 25 N. W. 42, 54 Am. Hop. 610, Throckmorton Cas. Contracts, 180; Hecht v. Batcheller, 147 Mass. 335, 17 N. E. 651, deed, make the existence of some quality a condition of the contract, as if they should contract for the sale of "this uncut diamond," in which case, if the contract should be construed as making- it a condition that the uncut stone in question should be a diamond and in fact the stone was not a diamond, there would be no contract, because the subject-matter of the contract was not in existence.84 On the other hand, if the subject of sale was an uncut stone, as a matter of fact believed by both parties to be a diamond, but there was nothing in the terms of the contract to make it a condition that the stone should be a diamond, their mutual mistake as to the nature of the stone would not affect the validity of the contract.35 Thus, where a woman sold an uncut stone to a jeweler for $1, both being ignorant of the nature of the stone, and it turned out to be a diamond worth $1,000, it was held that the contract was binding.36 So where the subject of sale was a note, the maker of which the parties mutually supposed to be solvent.37 It is difficult to reconcile with the current of authority the case of Sherwood v. Walker, where the subject of sale was a blooded cow,
9 Am. St. Rep. 708; Taylor v. Fleet, 4 Barb. (N. Y.) 95; Taylor v. Ford, 131 Gal. 440, 63 Pac. 770; Stewart v. Ticonic Nat. Bank, 104 Me. 578, 72 Atl. 741. A settlement with a railway Company for injuries is binding, although the parties were ignorant of the extent of the injuries. Rideal v. Railway Co., 1 Fost. & F. 706; Seeley v. Traction Co., 179 Pa. 334, 36 Atl. 229; Kowalke v. Light Co., 103 Wis. 472, 79 N. W. 762, 74 Am. St. Rep. 877; Houston & T. C. R. Co. v. McCarty, 94 Tex. 298, 60 S. W. 429, 53 L. R. A. 507, 86 Am. St Rep. 854. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
34 "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 is 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. 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; (2) and the error is also common to both parties." Pol. Cont (3d Ed.) 450. See, on this point, Brant. Cont. 104-108; Miles v. Stevens, 3 Pa. 21, 45 Am. Dec. 621; IRWIN v. WILSON, 45 Ohio St. 420, 15 N. E. 209, Throckmorton Cas. Contracts, 176; Watson v. Brown, 113 Iowa, SOS, 85 N. W. 28. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
35 Hood v. Todd, 139 Ky. 426, 58 S. W. 783. See "Vendor and Purchaser," Dec. Dig. (Key-No.) § 31; Cent. Dig. §§ .3.5-37.
36 WOOD v. BOYNTON, 64 Wis. 2G5, 25 N. W. 42, 54 Am. Rep. 610, Throckmorton, Cas. Contracts, 180. See "Sales," Dec. Dig. (Key-No.) §§ 19, 36; Cent. Dig. §§ 32, 63, 61,.
37 Hecbt v. Batcheller, 147 Mass. 335, 17 N. E. 651, 9 Am. St Rep. 708. See "Sales," Dec. Dig. (Key-No.) § 36; Cent. Dig. §§ 63, 64.
believed by the parties to be barren, and hence worth oniy $80, which was the price, but actually capable of breeding, and hence worth not less than $750, and it was held that the seller could rescind on the ground that the mistake went to the substance of the agreement.88
Quantity as well as quality may be a condition of the contract, and in such case, if the designated quantity does not exist, there is no contract because of the nonexistence of the subject-matter. Where, for example, the contract is for the sale of a described tract, which is also described as containing a certain number of acres, it has been held that a material difference in the quantity is ground for rescission.88