Van Arsdale v. Howard, 4 Ala. 596; Munroe v. Pritchett, 16 Ala. 785 ; Lind-sey v. Veasey, 62 Ala. 421 ; Parham v. Randolph, 4 How. Miss. 435 ; Buford v. Caldwell, 3 Mo. 477. If a vendee, for instance, is led by the vendor's representations, no matter how honest, to believe that he is buying Black-acre, when in fact he is buying White-acre, then there is no sale, since there is no concurrence of minds as to the thing sold. And whenever the misrepresentation goes to a substantial and material fact, then there is no sale. Flight v. Booth, 1 Bing. N. C. 370 ; Jones v. Edny, 3 Camp. 285.

In Cornfoot v. Fowke, 6 M. & W. 358, a majority of the court of exchequer held that a lease was not avoided by an honest misrepresentation of an agent. But this case has not been subsequently followed, and can only be sustained on the ground that the plea averred fraud, which could not be supported by proof of honest misrepresentation. See infra, sec 269-79. Cornfoot p. Fowke is elaborately discussed in Benj. on Sales, 3d Am. ed. sec 455, 462; and Mr. Benjamin's inclination evidently is to regard it as without authority. He cites to this effect the language of Lord St. Leonards, in Nat. Exch. Co. v. Drew, 2 Macq. H. L. Ca. 103; of Lord Campbell, in Wheelton v. Hardisty, 8 E. & B. 270 ; and of Willes, J., in Barwick v. Bank, L. R. 2 Ex. 259. To the same effect is Pollock, 3d ed. 543. See further, infra, sec 270-9.

In Smith v. Richards, 13 Pet. 26, the complainant's bill was to rescind a contract for the purchase of a tract of land in Virginia, on which there was an alleged gold mine. The ground for rescission was misrepresentation by the vendor. The contract was rescinded, the court saying "the party selling property must be presumed to know whether the representation he makes of it is true or false, and that it is immaterial to the purchaser whether the misrepresentation proceeded from mistake or fraud."

1 Infra, sec 272, 275, 285. In King v. Eagle Mills, 10 Allen, 551, Bigelow, C. J., said : "There can be no doubt that a vendee may rescind a contract for the sale of chattels, and refuse to receive or accept them, if the vendor has been guilty of deceit in inducing the former to enter into the bargain. But to maintain a defence to an action for the price of goods on this ground, the same facts must be proved which would be necessary to maintain an action for damages for deceit in the sale of goods." But this position can no longer be maintained. See notes to Chandler v. Lopus, 1 Smith's Lead. Cas. 7th Am. ed. 299. In Grim v. Byrd, 32 Grat. 293, V. conveyed certain real estate to P., in consideration of shares of stock in an insolvent corporation, concerning which B. had made untrue material statements. It was held that the contract was to be rescinded; even though B. may have made the misstatements honestly.

1 Wh. on Ev. sec ,927 ; Jones v. Edney, 3 Camp. 285.

2 Infra, sec 241.

3 Doggett v. Emerson, 3 Story, 733, see infra, sec 282.

4 Lord Campbell in Wilde v. Gibson, 1 H. L. C. 632; infra, sec 282.

5 S. C. 1 H. L. C. 605.

6 Haygath v. Wearing, L. R. 12 Eq. 320; which was the case of an executed conveyance "set aside on simple misrepresentation." Pollock, 3d ed. 519.

7 Hart v. Swaine, L. R. 7 Ch. D. 42.

8 McCulloch v. Gregory, 1 K. & J. 286 ; see infra, sec 245.

1 16 L. T. Rep. N. S. 549 ; L. R. 2 Ch. App. 604. 2 Redgrave v. Hard, 45 L. T. N. S.

485; L. R. 20 Ch. D. 1. See for further citations, infra, sec 241, 245 ; cf. Smith P. Chadwick, 20 Ch. D. 27.