contract of sale made by an agent after the revocation of his authority by the death of his principal will be rescinded in equity at the instance of the purchaser, when both parties acted in ignorance of the principal's death." So where a remainderman arranged for the sale of his estate in remainder, but both he and the purchaser were then ignorant of the fact that the life tenant was already dead, it was held that there was a mutual mistake of fact as to the subjectmatter of the sale, which was sufficient to avoid the contract, in the absence of negligence or subsequent acquiescence. 63 And a similar rule was applied in a case where plaintiff and defendant made a trade of their lands and exchanged deeds therefor, but on the night prior to the exchange of deeds a house on defendant's land was destroyed by fire, which fact was then unknown to both parties,** and in a case where the owner of a claim against a foreign government gave to another a power of attorney for its collection, including an agreement for a large contingent fee, but neither of the parties knew that, shortly before, the claim had been allowed and liquidated by a treaty, and in a case where a party took a lease of a vacant lot, with the intention of erecting a wooden building thereon, but the lot was within the district where the erection of wooden buildings was forbidden by law, which fact was unknown to both the parties." 65 So, there may be a rescission where a vided that “ignorance by both parties of a fact does not justify the interference of a court," and "mistake of a material fact may in some cases justify the rescission of the contract; mere ignorance of a fact will not." Civ. Code Ga. 1910, §§ 4582, 4115. And see Crowder v. Langdon, 38 N. C. 476. But compare Tarbox v. Tarbox, 111 Me. 374, 89 Atl. 194. 62 Scruggs v. Driver, 31 Ala. 274. 63 Moehlenpah v. Mayhew, 138 Wis. 561, 119 N. W. 826, citing Scott v. Coulson, L. R. 1 Ch. Div. 453 (sale of a life insurance policy, both parties believing the assured to be alive, when he was already dead); Cochrane v. Willis, L. R. 1 Ch. App. Cas. 58 (sale by a tenant in tail, on the assumption that the life tenant was alive, when he was not); Colyer v. Clay, 7 Beav. 188 (sale of an expectancy in the belief that the holder for life was still living, which was contrary to the fact). 64 Beardsley v. Clem, 137 Cal. 328, 70 Pac. 175. 65 Allen v. Hammond, 11 Pet. 63, 9 L. Ed. 633. 66 Hannah v. Steinman, 159 Cal. 142, 112 Pac. 1094. 67 purchaser took a deed of land from executors, with a covenant only against their own acts, neither party knowing, but afterwards discovering, that there was a long lease on part of the premises conveyed. Again, where several underwriters in a policy of insurance agreed that all the suits against them severally for a loss should abide and follow the event of one, the agreement was set aside upon proof of a difference in the several cases unknown to the defendants at the time of the agreement.68 And where two parties enter into a contract to perform specific work, neither having knowledge of the facts actually existing, and the contract proves to involve work essentially different from that which the parties had in mind, it will not be enforced."9 § 134. Materiality of Mistake.-To induce a court of equity to decree the rescission of a contract or the cancellation of a conveyance on the ground of mistake, it must be shown that the mistake was material.70 And in order to fulfill this requirement, it must appear that the mistake affected the substance of the transaction and not merely some collateral or incidental matter, and that it was in itself of such importance as to have controlled and determined the conduct of the mistaken party, so that he would not have entered into the contract at all, if it had not been for the mistake.71 "A mistake as to a matter of fact, to warrant relief in equity, must be material, and the fact must be such that it animated and controlled the conduct of the party. It must go to the essence of the object in view, and 67 Sandford v. Travers, 20 N. Y. Super. Ct. 498. 68 Alexander v. Muirhead, 2 Desaus. (S. C.) 162. 69 The Stanley H. Miner (D. C.) 172 Fed. 486. 70 Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798; Callender v. Colegrove, 17 Conn. 1; Beaver v. Trittipo, 24 Ind. 41; Robinson v. Bobb, 139 Mo. 346, 40 S. W. 938; Lamoreaux v. Phelan, 89 Neb. 47, 130 N. W. 988; Taylor v. Fleet, 4 Barb. (N. Y.) 95; Marshall v. Homier, 13 Okl. 264, 74 Pac. 368; Trigg v. Read, 5 Humph. (Tenn.) 529, 42 Am. Dec. 447; Camp v. Smith (Tex. Civ. App.) 166 S. W. 22. 71 Murray v. Paquin (C. C.) 173 Fed. 319; Hannah v. Steinman, 159 Cal. 142, 112 Pac. 1094; Hoops v. Fitzgerald, 204 Ill. 325, 68 N. E. 430; Wood v. Evans, 43 Mo. App. 230; Moore v. Scott, 47 Neb. 346, 66 N. W. 441; Stahl v. Schwartz, 67 Wash. 25, 120 Pac. 856; Kowalke v. Milwaukee Electric Railway & Light Co., 103 Wis. 472, 79 N. W. 762, 74 Am. St. Rep. 877. And see Lasbury v. Scarpulla (Sup.) 156 N. Y. Supp. 744. not be merely incidental. The court must be satisfied that but for the mistake the complainant would not have assumed the obligation from which he seeks to be relieved." 72 In an English case, it is said that there is a difference in this respect between fraudulent representations inducing a contract and mistake, and that to justify rescission on the former ground it is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract, but to warrant a rescission on the ground of mistake, it must be shown that there was an entire difference in substance between the supposed and the real object of the contract, so as to constitute a failure of consideration.73 To illustrate, where a person took a lease of a vacant lot for a term of five years at a substantial rent, for the purpose and with the intention of erecting a wooden building thereon for use in his business, and it was afterwards discovered that the lot was within a district where the erection of wooden buildings was forbidden by law, which neither of the parties knew at the time, it was held that the lessee was entitled to rescission, since the lease was of no substantial value to him if he could not use the lot as he had intended." But a party may also rescind a contract on account of a mistake which would not ordinarily be considered material, in the technical sense, if it really is important to him in his particular situation, and if he calls attention to this fact before signing the contract. This rule was applied in a case where one chartered a vessel, and both he and the owner supposed that she was to sail on a given date from the foreign port where she then lay, and she did not sail until eighteen days later.75 But on the other hand, a mistake, however material originally, is no ground for rescinding where it is corrected and set right before anything is done in the execution of the contract.76 Thus, whether the ven 72 Grymes v. Sanders, 93 U. S. 55, 23 L. Ed. 798. 75 Funch v. Abenheim, 20 Hun (N. Y.) 1. 76 John Single Paper Co. v. Hammermill Paper Co., 96 App. Div. 535, 89 N. Y. Supp. 116. dor in a deed shared in a mistake as to the person to whom the deed should have been made is immaterial, after a conveyance has been made by the vendee to correct the alleged mistake." And so, the purchaser of a lot may not rescind the sale because, in the description of the premises in the deed, the names of abutting streets were erroneously interchanged, the obvious error being corrected by a particular description.78 § 135. Mistakes of Agents.-Whether a principal can obtain rescission of a contract made for him by his agent, on account of the blunder or mistake of the agent, is not entirely clear upon the authorities. But, assuming that no question is involved as to the authority of the agent to bind his principal in the particular transaction, the rule appears to be much the same as in the case of a contract made by the principal himself. The contract may be rescinded if the opposite party knew of the agent's mistake and inequitably seeks to take advantage of it," or if the mistake of the agent was induced by the fraud, false representations, or mismanagement of the other party,80 or if it was a case of mutual mistake as between the agent and the other contracting party,81 or perhaps in cases where all these elements are lacking, and yet the contract can be rescinded without material loss or injury to any one else.82 But in a case where one obtained an order from defendant to supply marble for an agreed sum, and then obtained employment from marble dealers, and gave them the order, but incorrectly enumerating the articles to be supplied, it was held that the dealers were bound to fill the order as it was given by defendant, failing in which they could not recover the agreed sum.83 In an English case, the plaintiff bought a bar of silver, and by agreement it was sent to an expert to 77 Jones v. Humphreys, 39 Tex. Civ. App. 644, 88 S. W. 403. 78 Tepper v. Niemeier, 32 Ky. Law Rep. 407, 105 S. W. 896. 79 Granniss v. Bates, 55 Ga. 147. 80 Barnard v. Wheeler, 24 Me. 412. 81 Renshaw v. Lefferman, 51 Md. 277. See Taber v. Piedmont Heights Bldg. Co., 25 Cal. App. 222, 143 Pac. 319. 82 Woolson v. Kelley, 73 Minn. 513, 76 N. W. 258. 83 Shipway v. Rofrano, 28 Misc. Rep. 230, 58 N. Y. Supp. 1111. be assayed, and on his report of the quantity of silver contained in the bar, the plaintiff paid for it. There was a mistake in the assay, and the quantity of silver in the bar was much less than was stated in the report. It was held to be a case of mutual mistake, and that the plaintiff, on offer to return the bar, could maintain assumpsit for the price paid. Lord Ellenborough said that it was a case where neither party was to rely on his own knowledge or judgment, but the intervention of some other standard was made necessary by the nature of the commodity, and as to the assayer, he was the agent of both parties, so that his mistake was equivalent to their mutual mistake.84 § 136. Mistake in Transmission of Telegram.-According to the rule generally recognized in the United States, one who sends an offer or acceptance of a business proposition by telegram makes the telegraph company his agent for the purpose, assumes the risk of errors in transmission, and is bound by the terms of the message as it is delivered to the addressee, though it may be materially different from the message as filed for sending.85 Hence if, for example, a mistake is made in the transmission of the telegram, in regard to price, quantity, or terms of sale, but the addressee, being unaware of this, unconditionally accepts the proposition as delivered to him, the sender is bound to fulfill the contract on that basis, and cannot rescind or repudiate it on account of the mistake of the telegraph company. contrary rule prevails in England and in some of the states. Thus, in a case in Kentucky, where a telegraph. company negligently delivered a different message from 87 84 Cox v. Prentice, 3 Maule & S. 344. A 85 Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511; Dunning v. Roberts, 35 Barb. (N. Y.) 463; Western Union Tel. Co. v. Shotter, 71 Ga. 760; Ayer v. Western Union Tel. Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353; Pegram v. Western Union Tel. Co., 100 N. C. 28, 6 S. E. 770, 6 Am. St. Rep. 557. 86 Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576, 40 S. E. 815, 88 Am. St. Rep. 36; Haubelt Bros. v. Rea & Page Mill Co., 77 Mo. App. 672; Postal Tel. Cable Co. v. Akron Cereal Co., 23 Ohio Cir. Ct. R. 516. 87 Henkel v. Pape, L. R. 6 Ex. 7; Pepper v. Western Union Tel. Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699 |