ditions or warranties. So that, even if the vendor should know that the buyer was purchasing, for instance, cotton goods submitted to his inspection in the mistaken belief that they were made of linen, or if the purchaser should know that the vendor was selling a valuable estate under the mistaken belief that a search for mines under it had proved unsuccessful, neither party could avoid the contract made under the supposed error or mistake." 127 So where securities are sold at their par value, in ignorance of the fact that they command a premium in the market, the transaction will not be set aside on this ground, where it is not shown that the market value of the property was of the essence of the contract or its inducing cause.128 There may, however, be some exceptions to this rule, as in the case of a sale of lands in a distant state, which, therefore, are not readily accessible to the inspection of the purchaser. It has been thought that he may rescind such a contract, on showing a mutual mistake as to the quality and value of the land.129

§ 142. Errors in Computations or Estimates.—When it is necessary for a person to make calculations or estimates, in order to determine the sum which he will bid for an offered contract, or to determine the cost to him of a proposed contract, or whether or not it will be advantageous to him to enter into it, he must assume the risk of any error or oversight in his computations, and cannot have relief in equity on the ground of mistake, if he reaches a wrong conclusion through inadvertence, misunderstanding of that which is plain on its face, or mathematical error.130 Thus, the negligent omission by a bidder for public work to take

127 1 Benj. Sales (6th Amer. Edn.) § 610.

128 Sankey v. First Nat. Bank, 78 Pa. 48.

129 McDonald v. Benge, 138 Iowa, 591, 116 N. W. 602.

130 Moffett, Hodgkins & Clarke Co. v. City of Rochester, 91 Fed. 28, 33 C. C. A. 319; Tatum v. Coast Lumber Co., 16 Idaho, 471, 101 Pac. 957, 23 L. R. A. (N. S.) 1109; Steinmeyer v. Schroeppel, 226 Ill. 9, 80 N. E. 564, 10 L. R. A. (N. S.) 114, 117 Am. St. Rep. 224; James v. Dalbey, 107 Iowa, 463, 78 N. W. 51; Chaplaine Realty & Construction Co. v. Philip Gruner & Bros. Lumber Co., 137 Mo. App. 451, 118 S. W. 665; Boeckler Lumber Co. v. Cherokee Realty Co., 135 Mo. App. 708, 116 S. W. 452; Leonard v. Howard, 67 Or. 203, 135 Pac 549. But see Lewis v. Chicago, S. F. & C. Ry. Co. (C. C.) 49 Fed. 708.

133

into consideration certain features of the work in making the estimates on which his bid was based, does not constitute a mistake which will authorize a court of equity to release him from the contract created by the acceptance of such bid.181 So, where plaintiff makes an offer to erect a building for a certain amount, and defendant accepts it, there is a consummated and binding agreement, although the plaintiff, in adding up the items of his estimates, makes a mistake of a very large sum, provided defendant is not in any way responsible for it.182 And a contract by which a company agrees to construct waterworks and furnish a municipal corporation and its inhabitants with an adequate supply of water, all to be taken from springs on certain land, will not be canceled merely because the springs prove inadequate, the mistake as to their capacity having been no more the fault of the one party than of the other.1 So a contractor who agrees to build a house for a specified sum is not justified in refusing to carry out his undertaking because of the error of a subcontractor in making his bid, which error induced the subcontractor to refuse to accept the work.134 This rule is more specially applicable where the mistake is due to the heedlessness or indifference of the party making it. Thus, where one contracted to furnish for a lump sum all the sand necessary for the brick-work of a building, basing his estimate on the statement of the builder as to the number of brick to be used, and without looking at the plans, which the builder told him he could examine, it was held that there was no such fraud as would render the contract invalid, because a greater number of bricks were necessary than stated by the builder.185 But good faith on the part of the opposite party is also required, and even if he did not cause the mistake, yet he cannot complain of a rescission of the contract if he knew of the mis

181 Moffett, Hodgkins & Clarke Co. v. City of Rochester, 91 Fed. 28, 33 C. C. A. 319.

132 Brown v. Levy, 29 Tex. Civ. App. 389, 69 S. W. 255.

133 Borough of Du Bois v. Du Bois City Waterworks Co., 176 Pa. 430, 35 Atl. 248, 34 L. R. A. 92, 53 Am. St. Rep. 678.

134 Bertram v. Bergquist, 153 Ill. App. 43.

185 Williams v. Daiker, 33 Misc. Rep. 70, 68 N. Y. Supp. 348.

take and sought to take an inequitable advantage of it.186 And he may be charged with constructive knowledge of it. Thus, in one case, the owner for whom a building was to be erected, and who was himself an experienced contractor, was held put on inquiry as to whether the contractor in making his bid had not misunderstood the specifications, in view of the amount of the bid, and in view of the fact that another contractor had misinterpreted the specifications. 187 And further, relief may be granted as against a mistake of this kind, where the mistake was mutual, that is, made by both the parties in common.188 It has also been said that equity will not relieve one from an agreement because he promises more than he is legally required to pay, in the absence of fraud.189 But there is also a decision that an agreement of compromise and settlement may be rescinded by one of the parties thereto when he was under a mistake as to the amount due.140

§ 143. Mistake as to Title.-If both the parties to a sale of land believe that the vendor has a good title, whereas his title is defective on account of an outstanding title in a third person, the purchaser may rescind on the ground of a mutual mistake, and it is not necessary for him to show any fraud, deception, or concealment on the part of the vendor.141 Thus, the purchaser may obtain rescission where the fact is discovered (which was unknown to both the parties at the time) that his grantor holds under a forged deed and therefore has no title.142 So, in a case in Texas, the plaintiff, whose land was claimed adversely,

136 Supra, § 130. And see Tyra v. Cheney, 129 Minn. 428, 152 N. W. 835.

187 Hudson Structural Steel Co. v. Smith & Rumery Co., 110 Me. 123, 85 Atl. 384, 43 L. R. A. (N. S.) 654.

138 Miller v. Sellwood, 78 Minn. 190, 80 N. W. 960; Farquhar v. Farquhar, 194 Mass. 400, 80 N. E. 654.

139 Williams v. Harvey, Cooke (Tenn.) 466.

140 Meinecke v. Sweet, 106 Wis. 21, 81 N. W. 986.

141 Strothers v. Leigh, 151 Iowa, 214, 130 N. W. 1019; Bowlin v. Pollock, 7 T. B. Mon. (Ky.) 26; Theriot v. Chaudoir, 17 La. 445; Iowa Loan & Trust Co. v. Schnose, 19 S. D. 248, 103 N. W. 22, 9 Ann. Cas. 255; Ross v. Armstrong, 25 Tex. Supp. 354, 78 Am. Dec.

142 Horne v. Hughes, 19 Cal. App. 6, 124 Pac. 736.

agreed to the appointment of persons to survey and settle the location of a line, under the belief that the controversy only involved the true location of that line, which was a common line between old surveys. The defendant claimed adversely under a patent to a narrow strip of land, which he supposed to be between the old surveys which called for each other, and the agreement between the parties to settle the line was made by the plaintiff in ignorance of the character of defendant's claim, and also in ignorance of the fact that the field notes of his own survey were not correct in his patent. It was held that the plaintiff was entitled to have the agreement canceled.148 And in a case in New Jersey, where a bill sought to set aside a contract for the sale of lands on account of defendant's fraud, and there was no evidence of fraud, but it appeared that defendant had been mistaken as to the deeds conveying title to him, and he offered to supply the defects, it was held that he should be allowed a reasonable time to do so, and that, failing in that, the contract should be set aside on the ground of mistake.14* But it appears that where a grantor gives a warranty deed of land which he does not own, under the mistaken belief that he has title thereto, it will not be canceled at his instance, where no fraud, falsehood, misrepresentation, or concealment on the part of the grantee is alleged or shown.145

§ 144. Mistake as to Quantity of Land Conveyed.Where a tract of land has been sold in gross for a specific price, that is, not at a price of so much per acre or per square foot, and it appears that there has been a material mistake as to the quantity, the land conveyed being substantially more or less than the quantity contracted for or named in the deed, the mistake being innocent and shared by both parties, a court of equity will give relief by rescinding the contract, provided there is no remedy at law adequate to the particular case.146 But the excess or defi

148 Morrill v. Bartlett, 58 Tex. 644.

144 St. Francis Church v. Hargous, 39 N. J. Eq. 339.

145 Bibber v. Carville, 101 Me. 59, 63 Atl. 303, 115 Am. St. Rep. 303. But see Vliet v. Cowenhoven, 83 N. J. Eq. 234, 90 Atl. 681.

146 Van Loan v. Glaze, 11 Cal. App. 750, 106 Pac. 250; Raily v.

ciency, as the case may be, must be substantial, and not inconsiderable, material, and not trifling. For the maxim "De minimis non curat lex" applies to a case of this kind, and equity will not be moved to interfere on account of a mistake so unimportant that it cannot be supposed to make any material difference to the parties concerned.147 On the other hand, a case for rescission is made out if the mistake as to the quantity of land is so material that the agreement would not have been made if the truth had been known,148 or if the deficiency is so great as to amount to a failure of consideration,140 or so great as to suggest fraud on the part of the vendor.150 Again, if it is shown that it is important for the object which the purchaser has in mind. that he should have just the quantity of land which he believed he was to acquire, a deficiency in quantity, even though not very great, may be ground for rescinding the

Roberts, 33 Ky. Law Rep. 221, 109 S. W. 903; King v. Ballou, 24 Ky. Law Rep. 1946, 72 S. W. 771; Wiley v. Fitzpatrick, 3 J. J. Marsh. (Ky.) 582; Keene v. Demelman, 172 Mass. 17, 51 N. E. 188; Allen v. Luckett, 94 Miss. 868, 48 South. 186, 136 Am. St. Rep. 605; Newton v. Tolles, 66 N. H. 136, 19 Atl. 1092, 9 L. R. A. 50, 49 Am. St. Rep. 593; Belknap v. Sealey, 2 Duer (N. Y.) 570; Stern v. Benbow, 151 N. C. 460, 66 S. E. 445; McCrea v. Hinkson, 65 Or. 132, 131 Pac. 1025; Glover v. Smith, 1 Desaus. (S. C.) 433, 1 Am. Dec. 687; Bigham v. Madison, 103 Tenn. 358, 52 S. W. 1074, 47 L. R. A. 267; Watkins v. Elliott, 28 Grat. (Va.) 374; Hall v. Graham, 112 Va. 560, 72 S. E. 105, Ann. Cas. 1913B, 1257; Wilson v. McConnell, 76 W. Va. 81, 77 S. E. 540; Western Min. & Mfg. Co. v. Peytona Cannel Coal Co., 8 W. Va. 406; Crislip v. Cain, 19 W. Va. 438. But compare Citizens' Bank of Louisiana v. Lenoir, 118 La. 720, 43 South. 385; Newman v. Kay, 57 W. Va. 98, 49 S. E. 926, 68 L. R. A. 908, 4 Ann. Cas. 39; Rogers v. Pattie, 96 Va. 498, 31 S. E. 897. In an early decision of the United States Supreme Court it was said that the rule that equity will relieve a purchaser of land in case of a deficiency in quantity applies only to contracts respecting lands in a settled country, where the titles are complete, the boundaries ascertained, and the real quantity either known or within the vendor's means of knowing. Dunlap v. Dunlap, 12 Wheat. 574, 6 L. Ed. 733. And see Clark v. Reeder, 158 U. S. 505, 15 Sup. Ct. 849, 39 L. Ed. 1070, as to cases where the sale is expressly made by the acre and not in gross. See also, as to similar cases, Dickinson v. Lee, 106 Mass. 557.

147 Steinbach v. Hill, 25 Mich. 78; Davis v. Evans, 62 Ala. 401; Reynolds v. Vance, 4 Bibb (Ky.) 213.

148 McCrea v. Hinkson, 65 Or. 132, 131 Pac. 1025.

149 Ruffner v. Ridley, 81 Ky. 165.

150 Martin v. Stone, 79 Mo. App. 309.