As has been seen, an offer can be accepted only by the person to whom it is addressed;90 and a transaction, therefore, where the parties have not agreed to contract each with the other is void; but the fact that one or both of the parties are under a mutual mistake as to who the party is, with whom he is contracting, will not have this effect. In most of the cases where such circumstances have been shown, the mistake was induced by fraud;9I but there seems no reason to doubt that not only where the mistake was induced by fraud, but also where there was a mutual mistake, without misrepresentation the transaction would be voidable. Whether a unilateral mistake of one party as to the identity of the person with whom he was dealing would justify avoidance of the contract, would logically depend on the general question whether unilateral mistake should justify rescission.92 As the jurisdiction of equity is confined to written contracts, and as a mistake of identity is not generally made in a written contract, any possible relief ordinarily must be given by a court of law.
An error in regard to person may occur not only with reference to parties to the contract but also with reference to other persons who may be referred to in it as a means of defining the thing to be done or the property to be transferred. In the latter case the mistake concerns the identity of the subject-matter of the contract.92
90 See supra, Sec. 80.
91 The cases are collected, supra, Sec. 1517.
92 See infra, Sec.Sec. 1573 ef seq. In Jones v. Chicago, B. & Q. R. Co., 102 Neb. 853, 170 N. W. 170, a flour company, having a contract to sell a quantity of flour to F at a price much below the existing market price by mistake had entered the contract on its books as one with the plaintiff, and therefore shipped the flour to him with a draft for the price, which he paid. The seller discovering its mistake obtained redelivery of the flour from the carrier, the plaintiff in the meantime having obtained the bill of lading by paying the draft. The Court sustained the seller's contention on the ground that there was no meeting of minds, and no contract. There seems reason to suppose that the plaintiff had good reason to guess from the amount of the draft and from the fact that he had ordered no flour, that a mistake had been made. If so the sale though not void would be voidable, and the decision correct. On any other assumption it is inconsistent with the views expressed in this treatise of the requisites for the formation of a contract and of the impropriety of allowing rescission for unilateral mistake. 93 Thus where a remainder (Colyer