Sec 189

Error as to quality, we may therefore hold, does not avoid a contract, unless the quality goes to the generic character of the thing which is the subject-matter of the contract, or unless it was the specific object to which the thing is to be applied.2 In an English case, in 1870,3 the judgment of the court, after stating "that if there be misapprehension as to the substance of the thing there is no contract, but if it be only a difference in some quality or accident, even though the misapprehension may have been the actuating motive to the purchaser, yet the contract remains binding,"adds, " we apprehend the principle of our law is the same as that of the civil law; and the difficulty in every case is to determine whether the mistake or misapprehension," goes, "as it were, to the root of the matter, or only to some point, even though a material point, an error as to which does not affect the substance of the whole consideration." It must be recollected that there may be many modes of classifying "genus" or "substance." A thing may be of one genus or substance if considered in one light, and of another genus or substance if considered in another light. The question is, Was it of the genus or substance which would fit it for the object intended ? Hence it is held that where one party had in mind, in a bargain for hemp, "Riga Rhine Hemp," and the other party had in mind "St. Petersburg Clean Hemp," there was no bargain, as the vendor's kind of hemp was unfit for the purchaser's avowed purpose.1 And even though there be a warranty, and no fraud, it has been held that when one party takes a view of the differentia of an article sold utterly different from that of the other party, there is no consent of minds.2 On the other hand, the general rule is that " the existence of a separate warranty shows that the matter of the warranty is not a condition or essential part of the contract, but the intention of the parties was to transfer the property in the specific chattel at all events. Whether a particular affirmation as to the quality of a specific thing sold be only a warranty, or the sale be 'conditional, and to be null if the affirmation is incorrect,' is a question of fact to be determined by the circumstances of each case."3 It should Nor does error as to quality.

1 See Gardner v. Lane, 9 Allen, 492, and cases cited infra, sec 189 et seq.

2Scott v. Littledale, 8 E. & B. 815; Sutton v. Temple, 12 M. & W. 64; Bull v. Robinson, 10 Exch. 342; Gossler v. Sugar Refinery, 103 Mass. 331 ; see infra, sec 933. In Smith v. Hughes, L. R. 6 Q. B. 597, the difference was between old and new oats, and, on the ground that this was not a generic difference, the case can be sustained. In Cox v. Prentice, 3 M. & S. 344, there was mutual material error as to quality of silver, and the sale was set aside on that ground.

3 Kennedy v. Panama Mail Co., L. R. 2 Q. B. 589.

1 Thornton v. Kempster,5 Taunt. 786.

2 Marston v. Knight, 29 Me. 341; Stinson v. Walker, 21 Me. 211 ; Morse v. Brackett, 98 Mass. 209 ; Bryant v. Isburgh, 13 Gray, 607 (a horse case).

3Pollock, 3d ed. 452 ; citing Wight-man, J., in Gurney v. Womersley, 4.

E. & B. 133, and referring in general to Heyworth v. Hutchinson, L. R. 2 Q. B. 447; Azemar v. Casella, L. R. 2 C. P. 431. Mr. Wald (Wald's Pollock, 422) cites to the same effect, among other cases, Thornton v. Wynne, 12 Wheat. 183; Lyon v. Bertram, 20 at the same time be remembered that a mistake of one party, as to quality, may be ground for setting aside a contract in cases where such mistake was known at the time of the contract to the other party.1