A mistake may arise in the original agreement of the parties, or in the performance of a contract as to which no mistake existed. Thus, when making their original bargain, the parties either may have used the name Blackacre in contracting, on the assumption that it was the designation of Whiteacre; or by their original contract may have correctly stated that Whiteacre was the subject of the bargain but thereafter a conveyance of Blackacre may have been made and accepted in supposed performance of the contract. The distinction between these cases, however, relates merely to the contract in which the mistake occurred. For even where the mistake is in the performance of the original contract, the performance itself if accepted, whether or not under a mutual mistake, will necessarily involve a further agreement. Moreover, where the transaction relates to land, the acceptance of a deed operates as a discharge of the original contract.24 Whether this is true in a case of a transfer of personal property is properly a question of fact;s25 but in any event the acceptance of proffered performance at least involves an agreement to become the owner of what is offered. Therefore whether a court of equity rescinds or reforms the original contract, or merely the performance of the contract, it is, in the latter case as well as in the former generally destroying or altering a bargain which the parties in fact made. If the situation is merely that one party to a contract has performed only in part, and there is neither a mistake as to the character of that part performance, nor a merger of the original agreement nor an agreement to take part performance as satisfaction, there seems no occasion to discuss mistake. Nothing need be rescinded or reformed. There is simply a right of action for breach of the original contract. 26
24 See supra, Sec.926, infra, Sec. 1918.
25 See supra, Sec.Sec. 700 et seq.
26 In Clark v. Stetson, 115 Me. 72, 97 AH. 273, 275, the court said: "The plaintiff and defendant agree that the purchase included all the stock on the farm, and all the farming implements and tools with a few exceptions.
There is no controversy over the stock. There is controversy over the hens and some of the implements. But the plaintiff himself inspected the premises before purchase, made out a long list of articles to be included in the sale, examined this list with the defendant, and they both agreed to its correct-