Sec 191

The cases that have just been stated, are those in which the error was one of mistake not induced by fraud on the part of the other bargaining party. In such case, when the thing in the mind of the one party is different from the thing in the mind of the other party, there is no consent. But another element is to be considered in case of fraud.3 Where a vendor, for instance, fraudulently misstates a fact to the purchaser, it cannot be said that the parties have different things in their mind. On the contrary, each has the unreal thing in his mind; the first innocently, the second by a fictitious conception of his own. In such a state of things, not only are we not at liberty to say that there was no common contemplation of the same thing, but we must hold that the party fraudulently exhibiting the unreal thing to the other party, becomes liable for his deception to the other party. If the contract be not rescinded on application of the latter, the former may be compelled to make redress either in an action, to make up the deficiency,or in an action for deceit. In other words, the sale, as between the parties, is not void, but voidable at the purchaser's option.4 On the other hand, when purchasers fraudulently obtain goods from a vendor, on an agreement which is on its face a nullity, there being no agreement of minds as to the same thing, the contract is not even voidable, so as to give title, even to bona fide third parties. It is true that the party defrauded may elect to hold the other party liable on the bargain, but this is not because there was a voidable contract, but because the party defrauding is estopped by his own conduct from disputing the truth of his assertion.5

Sec 192

A settlement of accounts, founded on error, will be corrected pro tanto;1 and so of an error as to price; though, as has just been seen, when a lumping price is offered for a thing, taking it as a mass, this cannot be apportioned in cases where, while the one party had in view the whole thing, the other had in view only a part of it.2

If there be fraud as to quality or quantity defrauded party may hold to bargain and sue for damages.

1 Infra, sec 196.

2 Infra, sec 1043.

3 See infra, sec 232 et seq.

4 Infra, sec 2S2etseq., Pollock (Wald's ed.), 421.

5 Infra, sec 234 et seq.

Error in accounts, and as to price, may be corrected pro tanto.

Sec 193

Error in motive is generally not so essential as to prevent a bargain which it influences from becoming a valid contract.3 The Roman law recognizes an exception in cases in which a party executes a paper under the mistaken idea that he is compelled to do so; though this exception does not extend to cases in which the mistake is one of law.4-In our own law, mistake in motive does not usually avoid. "Care must be taken not to confound a common mistake as to the subject-matter of the sale, or the price, or the terms, which prevent the sale from ever coming into existence by reason of the absence of a consensus ad idem, with a mistake made by one of the parties as to a collateral fact, or what may be termed a mistake in motive. If the buyer purchases the very article at the very price and on the very terms intended by him and by the vendor, the sale is complete by mutual assent, even though it may be liable to be avoided for fraud, illegality, or other cause; or even though the buyer or seller may be totally mistaken in the motive which induced the assent."5

Error in motive not essential.

1 Stuart v. Sears, 119 Mass. 143; Russell v. The Church, 65 Penn. St. 9 ; Monnin v. Beroujon, 51 Ala. 196; see Wh. on Ev. sec 926 et seq.

2 Harris v. Pepperell, L. R. 5 Eq. 1; Webster v. Cecil, 30 Beav. 62; supra, sec 190-1.

3 Bispham's Eq. sec 191 ; Story's Eq. Jur. sec 150; see discussion, supra, sec 177.

4 L. 5, sec 1, D. de act emt. (19, 1) ; L. 3, sec 7, D. de cond. causadata (12, 4) ; L. 51, pr. sec 1, D. de pact. (11, 14) ; L. 31, D. pec. const. (13, 5);.

Thibaut, op. cit. 103; Koch, ut supra, 143.

In Jefferys v. Fairs, L. R. 4 C. D. 448, a party agreed to take a mining lease entitling him to search for and take coal at a settled rent, he supposing that a certain vein of coal was to be found under the surface. He was held bound on his lease, though it turned out there was no such coal. There was no misrepresentation charged to the lessor. For analogous cases, see infra, sec 212 et seq.

5 Benj. on Sales, 3d Am. ed. sec 54.