" It is not thought necessary to go into a consideration of other cases cited at the bar, to establish, that the acceptor may show that the accepted bill was void in its origin, as made in violation of the stamp act, etc.; for all these cases admit the genuineness of the notes, and turn upon questions of another nature, of public policy, and a violation of the laws of the land. Nor are the cases applicable, in which bills have been altered after they were drawn, or of forged indorsements, for these are not facts which an acceptor is presumed to know. Nor is it deemed material to consider in what cases receipts and stated accounts may be opened for surcharge and falsification. They depend upon other principles of general application. It is sufficient for us to declare, that we place our judgment, in the present case, upon the ground that the defendants were bound to know their own notes, and having received them without objection, they cannot now recall their assent. We think this doctrine founded on public policy and convenience; and that actual loss is not necessary to be proved, for potential loss may exist, and the law will always presume a possible loss in cases of this nature."
1 Jones v. Ryde, 1 Marsh. 157; s. c. 5 Taunt. 488; Cocks v. Master-man, 9 B. & C. 905; Young v. Cole, 3 Bing. N. C. 730.
2 Fuller v. Smith, By. & Mood. 49.
on its face to be, although he do not indorse it.1 But it seems, that, in England, the person discounting it should give notice that it is a forgery to the indorser on the day it becomes due, so as to enable him to give notice to the antecedent parties, or he cannot recover.2
§ 531. The mistake must, however, be in regard to a material fact, affecting and modifying the act or contract. For if it be in respect of a trifling and insignificant matter, it will not be a good defence to an executory agreement, nor a good claim for recovery upon an executed contract. Thus, where a mistake of a quarter of an acre was made in a sale of twenty acres, the premises being well known to both parties, it was held to be no good ground for rescinding the contract, inasmuch as the mistake could not have operated materially to affect the purchase.3 Yet, if the exact quantity or number of the subject-matter be of the essence of a contract, as if the contract be entire, a slight mistake might be sufficient to avoid it. Thus, if an article be bought for a definite purpose, any mistake as to quantity, though very slight, which would, nevertheless, render it unfit for the purpose, would afford a ground to avoid the sale.4
§ 532. Again, where there is a misdescription of the subject-matter of a contract, not arising from fraud, but founded in mistake, ignorance, or carelessness, if it be in a substantial and material point, so affecting the contract as that it may reasonably be supposed that but for such misdescription the contract would not have been made, it will afford a good ground to avoid the contract.5 Thus, where a sale was made
1 Gompertz v. Bartlett, 2 El. & B. 849; 24 Eng. Law & Eq. 156/
2 Wilkinson v. Johnson, 3 B. & C. 428; Cocks v. Masterman, 9 B. & C. 902; Smith v. Mercer, 6 Taunt. 76; Story on Bills, § 111, 225, 262, 263, 413, 451.
3 Smith v. Evans, 6 Binn. 102; Mann v. Pearson, 2 Johns. 37; 1 Story, Eq. Jur. § 141.
4 Ante, § 16.
5 Flight v. Booth, 1 Bing. N. C. 376. In this case, Tindal, C. J., said: "It is extremely difficult to lay down, from the decided cases, any certain definite rule which shall determine what misstatement or misdescription in the particulars shall justify a rescinding of the contract, and what shall be the ground of compensation only. All the cases concur in this, that of the lease of a house, which was described to be "a free public-house," and when the lease was made, it contained a proviso, that the lessee and his assigns should take all their beer from a particular brewery, it was held, that the misdescription was fatal to the contract.1 So, also, where parties made an agreement for the purchase and sale of an interest in a public-house, which was stated to have eight years and a half to run, and it turned out that the buyer had only an interest of six years, it was held, that the buyer might treat the contract as a nullity, and recover the purchase-money advanced by him.2 So, where an article was sold under the name of foreign refined rape-oil, but warranted only equal to sample, and oil was delivered which in fact corresponded to the sample, but was not foreign refined rape-oil, it was held the purchaser was not bound to accept it.3
§ 533. In cases of sales of personal property, where the mistake is in respect to the title of the vendor of the subject-matter, and he proves to have no title at all, the contract may be entirely avoided, and the vendee may avail himself of such where the misstatement is wilful or designed, it amounts to fraud; and such fraud, upon general principles of law, avoids the contract altogether. But with respect to misstatements which stand clear of fraud, it is impossible to reconcile all the cases; some of them laying it down that no misstatements which originate in carelessness, however gross, shall avoid the contract, but shall form the subject of compensation only: Duke of Norfolk v. Worthy, 1 Camp. 340; Wright v. Wilson, 1 Mood. & Rob. 207; whilst other cases lay down the rule, that a misdescription in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale. Jones v. Edney, 3 Camp. 285; Waring v. Hoggart, Ry. & Mood. 39; and Stewart v. Alliston, 1 Mer. 26. In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all, in such cases the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of the sale."