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that which it was authorized to deliver, so that the sender was represented as offering goods for sale at a lower price than that at which he had in fact offered them, and the supposed offer was accepted in ignorance of the mistake, it was held that there was no contract, and the sender was not bound to deliver the goods at the lower price.88 And in a case in New York, it appeared that a buyer of imported artificial silk sent a cipher cablegram calling for a reduction of two marks per kilo as a condition to shipments, but by reason of mistransmission the code words as to such reduction were unintelligible. The seller notified the buyer that it would make shipments, pursuant to which the buyer sold 2,000 kilos on the basis of the reduced price before the mistake was discovered. It was held that the seller was only entitled to recover for the amount so sold at the reduced price, though the buyer was not entitled to that price as to the balance sold after discovery of the error and the seller's refusal to furnish the goods at the reduction.89

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But it is a general principle, as stated in an earlier section, that a contract may be rescinded for mistake, though the mistake was unilateral, if the other party was aware of it and seeks to take an unconscientious advantage of it. Hence it would appear to make a case for equitable relief where the mistake in the transmission of a telegraphic message was so gross and palpable on the face of it that the recipient must have been aware that a mistake had been made, and could not rationally suppose the message as received to be the same with the message delivered for sending. In a case in Missouri, a broker, on receipt of a telegram from his principal, quoting very low prices for flour, made a large sale of flour to a merchant. But the latter, before concluding the bargain, asked if there was not some mistake. The agent showed him the telegram, and also told him of other sales which his principal had made at low prices. It was held that the purchase was made in

88 Postal Tel. Cable Co. v. Schaefer, 110 Ky. 907, 62 S. W. 1119. And see Western Union Tel. Co. v. Anniston Cordage Co., 6 Ala. App. 351, 59 South. 757.

89 Schuller v. Robison, 139 App. Div. 97, 123 N. Y. Supp. 881. 90 Supra, § 130.

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good faith by the merchant, and that the contract could not be rescinded by the seller. It should also be observed that where the price named in a telegram, as delivered to the addressee, is lower than that written in the message as delivered to the telegraph company, and the offer is accepted on the basis of the lower price, but before anything is done towards fulfilling the contract, a letter is sent and received in which the original and intended price is reiterated, there is no completed contract, and the seller cannot be held liable for refusal to fill the contract at the lower price.92

§ 137. Mistakes of Draftsmen.-It is a well-settled principle that equity may correct or reform an instrument which fails to express the true purpose and intention of the parties in consequence of mistakes made by the draftsman, whether through negligence, inadvertence, or lack of familiarity with technical terms. But cases are much more rare in which application to equity for the rescission or cancellation of instruments is made on this ground. However, there are authorities to the effect that where an instrument is executed which professes to carry into execution an agreement previously entered into, but which by mistake of the draftsman, either as to fact or law, does not accomplish the intended purpose, equity will relieve from such mistake. On application to reform a deed by correcting a mistake made by the draftsman, "it is no answer to say that the scrivener used the words which he intended to use. It is the mistake of the parties to the deed which we are to inquire into, and if they are misled by a misplaced confidence in the skill of the scrivener, it can hardly be said to be a mistake of law and not of fact on their part. But we are of the opinion that courts of equity in such cases are

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91 Keller v. Meyer, 74 Mo. App. 318.

92 Postal Tel. Cable Co. v. Akron Cereal Co., 23 Ohio Cir. Ct. R. 516.

93 Hunt v. Rousmanier's Adm'r, 8 Wheat. 174, 5 L. Ed. 589; Taylor v. Godfrey, 62 W. Va. 677, 59 S. E. 631; Murray v. Sanderson, 62 Wash. 477, 114 Pac. 424; Chapman v. Allen, Kirby (Conn.) 399, 1 Am. Dec. 24. "A mistake of law in the draftsman, or other agent, by which the contract, as executed, does not fulfill or violates the manifest intention of the parties to the agreement, is relievable in equity." Civ. Code Ga. 1910, § 4577.

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not limited to affording relief only in cases of mistake of fact, and that a mistake in the legal effect of a description in a deed, or in the use of technical language, may be relieved against on proper proof." " So also, relief may be had where the mistake consists in the omission of something material to the contract, or in the substitution of one non-technical word for another. Thus, where a married woman purchases realty and gives a purchase-money mortgage back, in which her husband does not join, the omission to include him being due to a mistake on the part of the draftsman, the mortgagee is entitled to a cancellation. of his deed to the mortgagor, if the other necessary elements exist. So a case is made out by a pleading which shows that certain timber was bought, and that, by mutual mistake of the parties and of the scrivener, only a part of the timber was specified in the agreement.96 In a case in Pennsylvania, application was made for the cancellation. of a policy of fire insurance, on the ground that it was issued for three years, but by mistake "five years" was written in the policy, and that, after the expiration of three years but within five years, the property was burned, and the assured had begun an action at law on the policy. But the evidence on the question of mistake being conflicting, it was held that the bill should be dismissed without prejudice.97

§ 138. Mistake as to Identity of Party.-Mistake as to the identity of the party with whom a contract is made will be ground for rescinding or repudiating it, if its enforcement would result in loss or injury to the person making the mistake, but not otherwise. Thus, it is no ground for setting aside a sale that the grantor conveyed to a trustee when he supposed he was conveying to the cestui que trust, and the fact that one contracting with a corporation

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94 Canedy v. Marcy, 13 Gray (Mass.) 373.

95 Dietrich v. Hutchinson, 73 Vt. 134, 50 Atl. 810, 87 Am. St. Rep. 698.

96 Doell v. Schrier, 36 Ind. App. 253, 75 N. E. 600.

97 Appeal of Edmonds, 59 Pa. 220.

98 Whitesides v. Taylor, 105 Ill. 496. But see School Sisters of Notre Dame v. Kusnitt, 125 Md. 323, 93 Atl. 928, holding that one's right to avoid a contract on account of mistake as to the identity of

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thought he was dealing with a partnership will not prevent the company from recovering on the contract, where there was no actual misrepresentation, and the work has been fully performed. Again, in the absence of fraud, mistake of a vendor of a lot as to the race of the purchaser, the latter being a negro, is no ground for rescission, that circumstance not being of the essence of the contract.10 But where questions of credit or solvency are concerned, the matter wears a different aspect. For instance, where the seller of goods supposes, from the name in which they are ordered, that the purchaser is a corporation, and makes inquiries as to the amount of its capital stock and the names of its officers and directors, and then learns for the first time that the purchaser is not a corporation but an individual trading under a corporate name, he is justified in declining to extend credit or ship the goods. 101 So, in a case in North Carolina, the action was brought to recover goods shipped to "A. Alexander." It appeared that there was a person in the neighborhood whose real name was Arthur B. Alexander, and another whose name was Alfred Alexander, and though the goods were ordered by Arthur Alexander, who was notoriously insolvent, the seller shipped them under the mistaken belief that they had been ordered by Alfred Alexander, who was a man of means, and intended to ship them to him and not to Arthur Alexander. It was held that no title passed to the last named on receiving the goods.102 There may also be other cases in which the identity of the contracting party will be vitally important, and where any mistake in this particular will prevent the formation of a valid contract, as, for instance, in the contract of marriage,103 and in cases of employment where the

the other contracting party does not depend on whether it was important to know such party, or that he had reason for wanting to contract with him.

99 John Weber & Co. v. Hearn, 49 App. Div. 213, 63 N. Y. Supp. 41. 100 Cole v. Hunter Tract Improvement Co., 61 Wash. 365, 112 Pac. 368, 32 L. R. A. (N. S.) 125, Ann. Cas. 1912C, 749.

101 Fifer v. Clearfield & Cambria Coal & Coke Co., 103 Md. 1, 62 Atl. 1122. And see Consumers' Ice Co. v. E. Webster, Son & Co., 32 App. Div. 592, 53 N. Y. Supp. 56.

102 Newberry v. Norfolk & S. R. Co., 133 N. C. 45, 45 S. E. 356. 103 See 1 Whart. Contr. § 180; 1 Bishop, Mar. & Div. § 204.

special skill, knowledge, aptitude, or personality of the person employed is the very thing contracted for and expected to be availed of, so that no substitution could be satisfactory to the employer.

§ 139. Mistake as to Existence of Subject-Matter.-A mutual mistake of the parties as to the existence of the subject-matter of their contract will invalidate it, except, perhaps, in cases where the uncertainty of the existence of the thing contracted for is the essence of the agreement.104 For instance, where a sale or lease of supposed coal or ore lands for mining purposes was executed and received under the mutual belief that there was coal or ore underlying the land and that the same could be mined, and the evidence in an action to recover the rent or price of the land shows clearly that there was no coal or ore there, equity will grant relief because of the failure of consideration arising from the mutual mistake.105 So where, at the time defendant agreed to furnish sufficient rock from a certain quarry to ballast plaintiff's railroad track, both parties erroneously believed and assumed that there was sufficient rock in the quarry to complete the work, there was a mutual mistake. of fact, such as to make the contract unenforceable." Again, a contract will not be enforced when it appears to have been based on the supposed existence of a certain fact which furnished the motive for entering into the agreement, if it subsequently transpires that the assumption on which the contract was based was erroneous. Thus, the government advertised for proposals for carrying the mails between Galveston and Velasco, in Texas, and one Charles, having made a bid which was accepted, entered into a con

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104 Darnell v. Dolan (Tex. Civ. App.) 132 S. W. 857; Paul v. Chenault (Tex. Civ. App.) 44 S. W. 682; Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 56 S. W. 287, 78 Am. St. Rep. 600; Cook v. Smith, 184 Mo. App. 561, 170 S. W. 672.

105 Fritzler v. Robinson, 70 Iowa, 500, 31 N. W. 61; Gribben v. Atkinson, 64 Mich. 651, 31 N. W. 570; Bluestone Coal Co. v. Bell, 38 W. Va. 297, 18 S. E. 493; Muhlenberg v. Henning, 116 Pa. 138, 9 Atl. 144.

106 St. Louis Southwestern Ry. Co. v. Johnston, 58 Tex. Civ. App. 639, 125 S. W. 61. And see Edwards v. Trinity & B. V. Ry. Co., 54 Tex. Civ. App. 334, 118 S. W. 572.

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