Chancellor Kent, Com. II. 470, says : "It would seem to be sound doctrine, that a substantial error between the parties concerning the subject matter of the contract, or as to the nature of the article, or as to the consideration, or as to the security intended, would destroy the consent requisite to its validity."

"It is an elementary principle that an agreement founded in a false conception, is a nullity in respect to the party who misconceived, because he assented to it, not absolutely, but on a condition not verified by the event. 2 Powell on Cont. 196." Gibson, C. J., Frevall v. Fitch, 5 Whart. 331, cited further, infra, sec 199.

In Powell on Contracts, published in London, in 1790, long, therefore, before Savigny's great work appeared, we have the following: " An agreement may be set aside by reason of a mistake in the parties making it, if the point misconceived be the cause of the agreement ; for if an agreement be entered sec 187. An error as to the generic character of a thing bargained for in like manner prevents the inception of a contract, when the object the purchaser has in view will be absolutely defeated if the error be not made an excuse for non-performance. The intention, for instance, is to purchase a brood-mare, but by mistake a gelding is offered and accepted. Or when material of one kind (e. g., gold) is bargained for, material greatly inferior) and of an utterly different character (e. g., copper) is substituted. In these cases there is no contract, for there is no consent as to one and the same thing.1 Hence, when a gold coin is passed away in mistake for a silver coin, there is no title to the gold coin in the party thus taking it, or in any party taking it from him by mistake.1 And where A. gives a cabman a sovereign in mistake for a shilling, and the cabman, seeing that the coin is a sovereign, keeps and appropriates it, this is larceny.2 Specific performance, also, has been refused in a case where the vendor innocently represented the land sold to be in one county, when it was in fact in another county.3 But when the error is as to incidents which may or may not exist without changing the generic character of the thing, such error does not prevent a binding contract from being made. The parties agree as to the thing to be done or the thing to be sold. That the words in which this agreement is expressed should not exactly apply, is a necessity of all negotiations, since there are no words as to whose meaning, fully carried out, any two minds can absolutely agree. It is, in fact, an understood condition of all contracts, that while there is to be one and the same thing intended, so far as identity and substance are concerned, there is a wide margin in the way of opinion of attributes as to which parties are allowed to differ, and that each party may pursue his independent investigations as to such attributes, not disclosing to the other his conclusions.4 But an error as to bulk, size, or quality, though not ordinarily invalidating a contract,5 may operate, when it destroys the fitness of the thing for the purpose for which it is bought, to prevent a valid contract from being made when the purchaser is acting under such an error.6 The 6ame rule applies, mutatis mutandis, to all bargains. Hence, where a party supposed he was leasing "a free public house," but that which the lessor tendered was a public house which was required to take all its beer from a particular brewery, it was held that they had distinct objects in mind.7

And so as to error as to generic character of property into upon the presumption by one of the parties of a fact, that is not really so as that party believes, the agreement as to him is of no force ; because he did not give his assent to what is agreed upon absolutely, but upon such and such conditions; which are not verified by the event." Am. ed. of 1825, II. 122.-This is no doubt the passage referred to with approval by Gibson, C. J., in Frevallr. Fitch, ut sup., since Mr. Powell's very words are quoted, and the authority given by Mr. Powell, is the same as that appealed to by Gibson, C. J., viz., Landsdowne v. Lands-downe.

Savigny's chapter on error, is unquestionably, as far as Germany is concerned, "epoch making." So far, however, as regards the principle of the nullity of agreements made under an essential mistake, he is anticipated by nearly fifty years by Powell. The difference is, that the doctrine is put forth by Powell crudely and without due limitation, while by Savigny it is elaborated with extraordinary completeness and delicacy. No doubt Powell meant virtually the same thing as is meant by Savigny. But the expression, " if the point misconceived be the cause of the agreement," by itself would mislead. If "cause" mean "material" cause,-i. e., if what was meant to have been said is that if the thing obtained by the agreement is essentially unfitted for the purpose for which it was obtained, the agreement is void ; then there is no difference in the main between Powell and Savigny. But the word " cause" may be read to mean "motive ;" and if so, the difference is vital, since, according to Savigny (and this view is now accepted on all sides), error in motive is no ground for avoiding a contract. This, however, the context shows was not meant by Mr. Powell, and that what he intended to say was that there is no contract when there is a misconception as to an essential incident of the agreement.-It is interesting to notice that this position, which was one of the main doctrines on which Savigny's system rests, and which has since been the subject of such vehement controversy in Germany, is to be found in terms even more unreserved than those used by Savigny, in a text-book published in England in 1790.

1 Supra, sec 2; Chandelor v. Lopus, Cro. Jac. 4 ; Gardiner v. Gray, 4 Camp. 144; Bridge v. Wain, 1 Stark. 410; Morrill v. Wallace, 9 N. H. 113; Gardner v. Lane, 9 Allen, 492; Harvey v. Harris, 112 Mass. 32.

1 Chapman v. Cole, 12 Gray, 141.

2 R. v. Middleton, L. R. 2 C. C. R. 38; Wh. Cr. L. 8th ed. sec 916, 974.

3 Best v. Stow, 2 Sandf. Ch. 298.

4 See infra, sec 217, 252, 254. 5 See infra, sec 189.

6 Harris v. Pepperall, L. R. 5 Eq. 1 ;.

Nichol v. Godts, 10 Exch. 191; Cal-verly v. Williams, 1 Ves. Jun. 210; Kennedy v. Panama Co., L. R. 2 Q. B. 580; see Cutts v. Guild, 57 N. Y. 229. 7 Jones v. Edney, 3 Comp. 285.