If the identity of the adversary party is material, no contract exists where one party to the contract is mistaken as to the identity of such adversary party.1

4Veasey v. Carson, 177 Mass. 117, 53 L. R. A. 241, 58 N. E. 177.

5 Kelly Asphalt Block Co. v. Barber Asphalt Paving Co., 211 N. Y. 68, L. R. A. 1915C, 256, 105 N. E. 88; Nicholson v. Dover, 145 N. Car. 18, 13 L. R. A. (N.S.) 167, 58 S. E. 444.

6 Nicholson v. Dover, 145 N. Car. 18, 13 L. R. A. (N.S) 167, 58 S. E. 444.

1 The cases which are usually cited in support of this proposition are, for the most part, really cases of fraud as to the identity of the adversary party rather than pure mistake as to his identity, and Mutual Consent in Contract, by Clarence D. Ashley, 3 Columbia Law Review 71.

England. Gordon v. Street (1899), 2 Q. B. 641; Cundy v. Lindsay, L. R. 3 App. Gas. 459; Smith v. Wheatcroft, 9 Ch. Div. 223; Hardman v. Booth, 1 Hurl. & C. 803.

Illinois. La Salle Pressed Brick Co. v. Coe, 53 111. App. 506.

Indiana. Alexander v. Swackhamer, 105 Ind. 81, 55 Am. Rep. 180, 4 N. E. 433, 5 N. E. 908.

Maryland. Fifer v. Coal Co., 103 Md. 1, 62 Atl. 1122; School Sisters v. Kus-nitt, 125 Md. 323, L. R. A. 1916D, 792, 93 Atl. 928.

Massachusetts. Rodliff v. Dallinger,

141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805.

New Jersey. Randolph Iron Co. v. Elliott, 34 N. J. L. 184.

North Carolina. Newberry v. Norfolk & Southern R. R. Co., 133 N. Car. 45, 45 S. E. 356.

Ohio. Hamet v. Letcher, 37 O. S. 356.

It may consist in taking advantage of a known mistake on the part of the adversary party: Boston Ice Co. v. Potter, 123 Mass. 28.

Even where fraud clearly exists, the strong tendency on the part of many of the courts to class fraud as to an essential element with mistake rather than with fraud, causes them to explain cases of this sort by the theory of mistake: School Sisters v. Kusnitt, 125 Md. 323, L. R. A. 1916D, 792, 93 Atl. 928; Rodliff v. Dallinger, 141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805; Meyer v. Shapton, 178 Mich. 417, 144 N. W. 887; Kelly Asphalt Block Co. v. Barber Asphalt Block Co., 211 N. Y. 68, L. R. A. 1915C, 256, 105 N. E. 88.

It is said to be "mistake induced by fraud": Meyer v. Shapton, 178 Mich. 417, 144 N. W. 887. Upon this question, see The Doctrine of Boston Ice Co. v. Potter, by George P. Coetigan, Jr., 7 Columbia Law Review, 32.

Such identity is material where the personality of the adversary party is a factor in inducing the one party to. enter into the contract; as where credit is extended and the financial responsibility of the party thus becomes an important element;2 or if he is for any reason unwilling to deal with the party as to whose identity he was mistaken and who is seeking to enforce the contract, as where such adversary party is a notorious usurer, whom the other party was seeking to avoid in business and with whom he had refused to deal;3 or where for any reason he has refused to deal with him.4 A common example of this mistake is found where A makes an offer to B, and C accepts it, claiming that he is B. In such case, if B's identity is material, no title passes to property delivered by A to C under the contract,5 and A can recover the property or its value, even from a bona fide purchaser 6 or pledgee,7 claiming title under C. The vendee is not bound where the personality of the vendor is material, and vendee is mistaken as to his identity.8 Thus where A had bought ice from B and had quit doing business with him because he was dissatisfied with him and bought from C; and C sold his business to B, who without notifying A of the change, continued to deliver ice to him, B was not allowed to recover the price of the ice thus delivered.9 A mistake in the identity of the opposite party, the real party being a corporation with a small capital, and the supposed party being a firm with a large capital, the names being identical, is ground for rescinding an executory contract.10 If one party, in acting in a name which indicates that it is a corporation, and the adversary party enters into a contract, believing that he is dealing with a corporation, when, in fact, such party is not incorporated, there is no meeting of the minds as to the identity of the adversary party, and accordingly there is no valid contract.11 If a corporation uses a name which is so much like that of a large manufacturing company, as to mislead the purchaser, and the purchaser enters into such contract, believing that he is dealing with such large manufacturing company, such mistake renders the contract void.12 Where A had dealt with a firm of which B was agent, and the firm had incorporated without A's knowledge, and B as agent for the new corporation did not disclose the incorporation to A, A was allowed to hold the members of the corporation as partners.13

2 England. Cundy v. Lindsay, L. R. 3 App. Cas. 459 (fraud); Hardman v. Booth, 1 Hurl & C. 803 (fraud).

Indiana. Alexander v. Swackhamer, 105 Ind. 81, 55 Am. Rep. 180, 4 N. E. 433, 5 N. E. 908 (fraud).

Maryland. Fifer v. Clearfield & Cambria Coal & Coke Co., 103 Md. 1, 62 Atl. 1122 (fraud).

Massachusetts. Winchester v. Howard, 97 Mass. 303, 93 Am. Dec. 93 (fraud); Rodliff v. Dallinger, 141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805 (fraud).

Ohio. Hamet v. Letcher, 37 O. S. 356 (fraud).

3 Gordon v. Street (1899), 2 Q. B. 641 (fraud).

4 Rodliff v. Dallinger, 141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805 (fraud); Boston Ice Co. v. Potter, 123 Mass. 28 25 Am. Rep. 9 (taking advantage of known mistake).

5 Hollins v. Fowler, L. R. 7 H. L. 757 (fraud); Hardman v. Booth, 1 Hurl. & C. 803 (fraud).

6 England. Cundy v. Lindsay, L. R. 3 App. Cas. 459 (fraud).

Illinois. La Salle Pressed Brick Co. v. Coe, 53 111. App. 506 (fraud).

Indiana. Alexander v. Swackhamer, 105 Ind. 81, 55 Am. Rep. 180, 4 N. E. 433, 5 N. E. 908 (fraud).

Massachusetts. Edmunds v. Merchants' Despatch Transportation Co., 135 Mass. 283 (fraud); Rodliff v. Dal-inger, 141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805 (fraud).

Ohio. Dean v. Yates, 22 O. S. 388 (fraud); Hamet v. Letcher, 37 O. S. 356 (fraud).

Pennsylvania. Barker v. Dinsmore, 72 Pa. St 427, 13 Am. Rep. 697 (fraud).

7 Rodliff v. Dallinger, 141 Mass. 1, 55 Am. Rep. 439, 4 N. E. 805 (fraud).

8 Barnes v. Shoemaker, 112 Ind. 512, 14 N. E. 367; School Sisters v. Kus-nitt, 125 Md. 323, L. R. A. 1916D, 792, 93 Atl. 928 (fraud); Winchester v. Howard, 97 Mass. 303, 93 Am. Dec 93 (fraud).