If a man knows the nature of the transaction, and the party with whom he is entering into legal relations, it is, for the most part, his own fault if the subject-matter of the contract - the thing contracted for and the terms of the bargain - is not what he supposed. "If, whatever a man's real intention may be, he so conducts himself that a reasonable man would believe that he was assenting to the terms proposed by the other party, and that other party, upon that belief, enters into the contract with him, the man thus conducting himself would be equally bound as if he had intended to agree to the other party's terms." 23 And so, if the parties are agreed in clear terms, and one of them does not get what he anticipates under the contract, this is, if anything, failure of performance, and not mistake. Cases cited in illustration of the rule that a man is not bound to accept a thing substantially different from that which he bargained for 24 have nothing to do with the formation of contract, and we must keep these questions of mistake and so-called failure of consideration clearly apart.
Mistake as to the subject-matter of a contract will only avoid it at law in a few cases. Equity, however, may grant relief in cases where the law may afford no remedy.25
If the agreement is in respect of a thing which, unknown to both parties, does not exist at the time of entering into the contract, this goes to the very root of the matter, and avoids the contract. It seems that this rests upon the ground that the existence of the subject-matter is a condition of the contract, rather than upon the ground of mutual mistake.28 The subject belongs with impossibility of performance; but, inasmuch as the thing agreed upon has ceased to be possible before the agreement, such impossibility prevents a contract from ever arising, and does not operate, as impossibility arising subsequent to the agreement will sometimes operate, as a form of discharge. One of the leading English cases .on this subject arose out of a sale of a cargo of corn which was supposed by the parties, at the time of the sale, to be on its voyage to England, but which, in fact, having become heated on the voyage, had been unloaded and sold. It was held that the contract was void, inasmuch as it "plainly imported that there was something which was to be sold at the time of the contract, and something to be purchased," whereas the object of the sale had ceased to exist.27 So, also, where a person purchased an annuity which, at the time of the purchase, had ceased to exist owing to the death of the annuitant, it was held that he could recover the price which he had paid for it.28 And so where the subject-matter of the contract is a right or title which, unknown to the parties, does not exist.29 There are some cases seemingly at variance with this rule, but they are cases in which the contract was absolute, and not impliedly conditional upon the existence of the subject-matter.30
805, 55 Am. Rep. 439. See, also, Paine v. Loeb, 96 Fed. 164, 37 C. C. A. 434; post, p. 296. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-1,19.
22Stoddard v. Ham, 129 Mass. 3S3, 37 Am. Rep. 369. See "Contracts." Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 1,15-1,19.
23Per Blackburn, J., in Smith v. Hughes, L. R. 6 Q. B. at page 607. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-1,19.
24 Gompertz v. Bartlett, 2 El. & Bl. 849; Couder v. Hall, 26 B. (N. S.) 22. See "Contracts," Dec. Dig. (Key-No.) § .93; Cent. Dig. §§ 415-1,19.
25 See Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61; Geib v. Reynolds, 35 Minn. 331, 28 N. W. 923; Fleetwood v. Brown, 109 Ind. 567, 9 N. B. 352, 11 N. E. 779; Thwing v. Lumber Co., 40 Minn. 184, 41 N. W. 815. See "Contracts," Dec. Dig. (Key-No.) § 98; Cent. Dig. § 447.
26 See Anson, Cont (8th Ed.) 135; Pollock, Cont (3d Ed.) 386, 455.
27COUTURIER v. HASTIE, 5 H. L. Cas. 673, Throckmorton Cas. Contracts, 173. See, also, Allen v. Hammond, 11 Pet. 63, 9 L. Ed. 633; Gibson v. Pelkie, 37 Mich. 380; Thompson v. Gould, 20 Pick. (Mass.) 134; Ketchum v. Catlin, 21 Vt 191; King v. Doolittle, 1 Head (Tenn.) 77; Scioto Fire Brick Co. v. Pond, 38 Ohio St. 65; Anderson v. Armstead, 69 I11. 452; Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61; Riegel v. Insurance Co., 153 Pa. 134, 25 Atl. 1070, 19 L. R. A. 166; Bluestone Coal Co. v. Bell, 38 W. Va. 297, 18 S. E. 493; Thwing v. Lumber Co., 40 Minn. 184, 41 N. W. 815; United States v. Charles, 74 Fed. 142, 20 C. C. A. 346; Nordyke & Marmon Co. v. Keblor, 155 Mo. 643, 56 S. W. 287, 78 Am. St Rep. 600. See "Sales," Dec. Dig. (Key-No.) § 36; Cent. Dig. §§ 63, 64.
28 Strickland v. Turner, 7 Exch. 208. And see Cochran v. Willis, L. R. 1 Ch. App. 58. See "Sales," Dec. Dig. (Key-No.) § 36; Cent. Dig. §§ 63, 64
29 Bingham v. Bingham, 1 Ves. Sr. 126; Cooper v. Phibbs, L. R. 2 H. L. 170; Varnum v. Town of Hygate, 65 Vt. 416, 26 Atl. 628; Hamilton v. Park & McKay Co., 125 Mich. 72, 83 N. W. 1018; Blaney v. Rogers, 174 Mass. 277, 54 N. E. 561; post, p. 256. See "Contracts," Dec. Dig. (Key-No.) § 93; Cent. Dig. §§ 415-419.
so Barr v. Gibson, 3 Mees. & W. 390; Hills v. Sughrue, 15 Mees. & W. 253. "The parties to an agreement must be acquainted with the extent of their rights and the nature of the information they can call for respecting them, else they will not be bound. The reason is that they proceed under an idea that the fact which is the inducement to the contract is in a particular way, and give their assent, not absolutely, but on conditions that are falsified by the event. But where the parties treat upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the