The chief difference between the effect of misrepresentation as to the contents of a written contract and the effect of mere mis. take, is that in mistake the negligence of the party misled by mistake to ascertain the contents of the written contract may prevent him from obtaining relief,1 while in misrepresentation we find substantially the same conflict of authority as in cases of fraud as to the contents of a written contract. In some cases of misrepresentation as to the contents of a written contract, it is held the negligence of the party misled does not prevent him from treating the contract as void in an action between the immediate parties to such contract.2 If the agent of a railway company agrees to pro-

9 McFerran v. Taylor, 7 U. S. (3 Cranch.) 270, 2 L. ed. 436.

10 See ch. XII.

11 Tucker v. Denton (Ky.), 15 L. R. A. (N.S.) 289, 32 Ky. L. Rep. 521, 106 S. W. 280.

12 Great Northern Ry. Co. v. Fowler, 136 Fed. 118, 69 C. C. A. 106.

Contra: Lawton v. Charleston & W. C. Ry. Co., 91 S. Car. 332, 74 S. E. 750.

13 Selby v. Matson, 137 la. 97, 114 N. W. 609.

Misrepresentation as to the identity of realty: Clapp v. Greenlee, 100 la. 586, 69 N. W. 1049.

1 See Sec. 271.

2 Alabama. Foster v. Johnson, 70 Ala. 249; Davis v. Snider, 70 Ala. 315; Cannon v. Lindsey, 85 Ala. 198, 7 Am. St. Rep. 38, 3 So. 676; Beck, etc., Co. v. Houppert, 104 Ala. 503, 53 Am. St. Rep. 77, 16 So. 522; Bank v. Webb, 108 Ala. 132, 19 So. 14.

Arkansas. J. I. Case Threshing Machine Co. v. Southwestern Veneer Co., - Ark. - , 205 S. W. 978.

373 Misrepresentation as to Essential Element Sec. 247 vide transportation for A upon a freight train, and he gives to A a ticket for such transportation, but not a certificate entitling him to ride upon the freight train, which by the rules of the company was necessary to entitle a passenger to ride upon such train, the railway company is liable to A for damages for ejecting him, even if A could have learned by reading such railway ticket, that it was not sufficient authority for him to ride upon the freight train without the accompanying certificate.3

In other jurisdictions misrepresentations as to the contents of a written contract are held not to make the contract void, even as between the immediate parties to such contract, if the party misled was guilty of negligence in not ascertaining the contents of the instrument.4 Thus where A, who could read and had agreed to sign a guaranty to B for X to cover future indebtedness, signed an instrument from which, a clause containing a guaranty for past indebtedness was not erased, A can not avoid liability on such covenant though B had told A that all the clauses assuming such liability were erased and had showed A what clauses to erase from the printed form.5 If A's agent gives to B an oral description of an article which B is buying from A, and the written contract describes a different article, such written contract is valid in the absence of fraud.6 If A is induced to sign a note in payment for a certain quantity of fertilizer, relying upon the statement of the agent of the seller that such note provides for payment of such fertilizer in cotton, A is bound by such contract if he had an opportunity to read and could read.7 In any event, if the person misled was not negligent in relying on the representations of the adversary party as to the contents of the contract, he may avoid it.8 Thus where the agent of a railroad company sold A a ticket alleged to be correct in form, but the time limit of which had, in fact, expired, and A was unable to read the ticket because the station was dimly lighted, A is not bound by the terms of the ticket.9

California. Haubert v. Mausshart, 89 Cal. 433, 26 Ac. 899; Born v. Castle, 175 Cal. 680, 167 Ac. 138.

Maryland. Spitze v. R. R., 75 Md. 162, 32 Am. St. Rep. 378, 23 Atl. 307.

Mississippi. Illinois Central R. R. v. Gortikov, 90 Miss. 787, 122 Am. St. Rep. 324, 14 L. R. A. (N.S.) 464, 45 So. 363.

New Jersey. Alexander v. Brogley, 63 X. J. L. 307, 43 Atl. 888.

North Carolina. Creech v. Atlantic Coast Line Railroad Co., 174 N. Car. 61, L. R. A. 1918D, 1030, 93 S. E. 453.

Texas. American, etc., Co. v. Pace, 23 Tex. Civ. App. 222, 56 S. W. 377; Pioneer, etc., Co. v. Baumann (Tex. Civ. App.), 58 S. W. 49.

Washington. Olson v. Northern Ac. Ry. Co., 49 Wash. 626, 18 L. R. A. (N.S.) 209, 96 Ac. 150.

For the distinction in this respect between mistake and misrepresentation, see obiter in Bates v. Harte, 124 Ala. 427, 82 Am. St. Rep. 186, 26 So. 898. See also the following expression of opinion: "Plaintiff did not know, so far as appears, that defendant had not read and compared the two. He had a right to presume he had, and can not be held responsible by defendant for reposing too much confidence in his assurances": Haubert v. Mausshardt, 89 Cal. 433, 436, 26 Ac. 899.

3 Olson v. N. Ac. Ry. Co., 49 Wash. 626, 18 L. R. A. (N.S.) 209, 90 Ac. 150. See also, as to similar misrepresentations: Illinois Central R. R. Co. v. Gortikov, 90 Miss. 787, 122 Am. St. Rep. 324, 14 L. R. A. (N.S.) 464, 45 So. 363; Creech v. Atlantic Coast Line RailToad, 174 N. Car. 61, L. R. A. 1918D, 1030, 93 S. E. 453.

4 England. Howatson v. Webb (1908), 1 Ch. 1, 4 B. R. C. 642, 77 L. J. Ch. N. S. 32, 97 L. T. N. S. 730.

Arizona. History Co. v. Dougherty 3 Ariz. 387, 29 Ac. 649.

Georgia. Walton Guano Co. v. Cape-Ian, 112 Ga. 319, 52 L. R. A. 268, 37 S. E. 411.

Iowa. Reid v. Bradley, 105 la. 220, 74 N. W. 896.

Wisconsin. Bostwick v. Ins. Co., 116 Wis. 392, 92 N. W. 246 [modifying on rehearing 116 Wis. 392, 89 N. W. 538].