1 Kennebec Log Driving Co. v. Burrill, 18 Me. 314; Case v. Hall, 24 Wend. 102; Vibbard v. Johnson, 19 Johns. 77; Whitney v. Lewis, 21 Wend. 132; Lloyd v. Jewell, 1 Greenl. 352; Sumner v. Gray, 4 Pike, 467. But see contra, Frisbee v. Hoffnagle, 11 Johns. 50; Knapp v. Lee, 3 Pick. 452. This rule also obtains in the Roman law, for in the contract of sale the seller was not understood to warrant his title to the goods sold, but only to agree to defend his possession; so in the old French law, which followed the Roman law. The Code Napoleon has, however, settled the question otherwise in France, by declaring, in the 1599th article, that " la vente de la chose d'autrui est nulle." See Pothier on Cont. No. 1; Story on Sales, §7.
2 Mandeville v. Welch, 5 Wheat. 277; Greenleaf v. Cook, 2 Wheat. 13.
§ 535. Again, a mistake may arise in respect to the quantity or number of things included in a contract. As, for instance, where, in the sale of a certain set of articles, a purchaser supposes himself to be buying the whole at a particular price, while the seller supposes him to offer that price for a part only; and, in such cases, no contract arises, for want of mutuality of agreement. So, also, if a lessee should suppose that his lease was to include a particular room or set of rooms, which the lessor did not intend to let, the contract would be void, if the mistake were material.5 And the same rule would apply, where premises were sold for the residue of a term, of which both parties supposed that only eight years were unexpired, the price being founded on that supposition, if it should afterwards appear that twenty years were, in fact, unexpired.1
1 Farrer v. Nightingal, 2 Esp. 639; Curtis v. Hannay, 3 Esp. 82; Hammond v. Allen, 2 Sumner, 394; 8. c. 11 Peters, 70.
2 Farrer v. Nightingal, 2 Esp. 639. In this case, Lord Kenyon said: "I have often ruled, that where a person sells an interest, and it appears that the interest, which he pretended to sell, was not a true one; as, for example, if it was for a lesser number of years than he had contracted to sell, the buyer may consider the contract as at an end, and bring an action for money had and received, to recover back any sum of money he may have paid in part performance of the agreement for the sale; and though it is said here, that upon the mistake being discovered in the number of years of which the defendant stated himself to be possessed, he offered to make an allowance pro tanto, that makes no difference in the case. It is sufficient for the plaintiff to say, That is not the interest which I agreed to purchase." Johnson v. Johnson, 3 Bos. & Pul. 170; ante, § 16, 17.
3 Stebbins v. Eddy, 4 Mason, 414.
4 Johnson v. Johnson, 3 Bos. & Pul. 170.
5 1 Story, Eq. Jur. § 144; Calverley v. Williams, 1 Ves. Jr. 210; Milligan v. Cooke, 16 Ves. 1; Poole v. Shergold, 1 Cox, 273; Brown on Sales, §217.
§ 536. Where a mistake arises in regard to the quality or value of the subject-matter of a contract, the contract will be binding, unless there be a breach of covenant or warranty; and in such cases, the mere mistake would not vitiate the contract;2 particularly if the other party had the means of avoiding the mistake by inquiry.3
§ 537. Where an agreement relates to a particular person, in whom a personal trust and confidence are reposed, a mistake respecting the individual will vitiate the agreement. Thus, in the case of a promise to marry, or of an agreement to sell upon credit, or of a loan or gift, a mistake of the particular person intended avoids the contract. So, also, if A. agree to sell on credit to B., mistaking him for C, and reposing a special confidence in the solvency and honor of C, the mistake would avoid the sale. And, an agreement to sell to a particular firm, described by the vendee or broker to be composed of certain persons, when in point of fact it was not, would avoid a contract, if the mistake should operate to the injury or inconvenience of the seller.4 But where consideration for the person forms ho inducement to the contract, the mistake, being merely inconsequential, would not avoid it; and if, purely through mistake of person, any party should be employed to do a particular act or series of acts, and should do them, the party making the mistake must bear the consequences thereof, and cannot throw them upon the innocent party.6
§ 538. Where a mistake occurs as to the nature of the subject-matter of the contract, there is no assent, and of course no contract; as if an unopened cask or barrel be bought upon the supposition that it contains one thing, when it actually contains another, there is no sale.1 Thus, if a person buys cotton, to arrive "per Peerless from Bombay," he may show that he meant the ship Peerless which was to leave Bombay in December, and not the Peerless which left in October, as the vendor claimed.2 So, where payment of a note is made in counterfeit bank-notes, the person making such payment being innocent, for them the payee may recover of him the amount of such notes, in an action for money had and received;3 provided he offer to return them in a reasonable time.4 If, however, by the agreement, notes or coins are to be received in payment, it is not regarded as a bargain for cash, but in the nature of barter; and if they prove worthless or counterfeit, the loss, in the absence of fraud, must be borne by the receiver.6 So, where an article was sold as "waste silk," when it was no such thing;6 or where a material was bought as "scarlet cuttings," which was not scarlet cuttings;7 or where a stone was sold as a bezoar stone, when it was not;8 or where a quantity of dried leather, and bones, and burnt clay, was sold as "a seroon of indigo; "9 the sale was held to be void. So, also, if a pair of candlesticks be bought and sold as being silver, both parties believing them to be so, and they turn out to be plated, the contract is at an end.10