Sec 194

Error as to collateral matters is unessential so long as there is no error as to the thing to which such matters are collateral. As an illustration of this is given, in the Digest, a case in which it was agreed that to a farm, to be rented or sold, should be added a span of horses, among a number on the farm, but no specification was given by which the horses could be designated. By what rule was the choice of the horses to be made? According to Labeo, the intention of the vendor is in such case to prevail,1 and the validity of the contract is in no way affected by the mistake of the purchaser as to the horses he was to receive.-In our system, mistake as to matters collateral which are not necessary and essential conditions of the adaptation of the thing for the intended object does not avoid.2 Thus, where specific machines, ordered from the manufacturers, did not possess the qualities which the purchasers supposed they did, though without entire failure of adaptation, there being no misrepresentation or warranty by the vendor, it was held that this mistake of the purchasers was no ground for setting aside the contract.3 And it has been stated, as a general rule, that "where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference."4 Even supposing the error be fraudulently promoted by the other side, this does not avoid the contract when the error is confined to matters collateral;1 or when it is a matter of opinion.2 The mistake must be as to the present, not as to the future; must be as to something immediate, not something remote.3

Error as to collateral or future matters not essential.

1 L. 34, pr. D. de cont. emt. (18, 1).

2 Bispham's Eq. sec 191 ; Kerr on Fraud and Mistake, 408; Chanter v. Hopkins, 4 M. & W. 399; Prideaux v. Bunnett, 1 C. B. N. S. 613; McFerran v. Taylor, 3 Cranch, 281; Henderson v. Dickey, 35 Mo. 120.

"In the case of fraud, a fraudulent representation of any fact material to the contract gives a right of rescission ; but the misapprehension which prevents a valid contract from being formed must go to the root of the matter." Pollock, 3d ed. 442, citing Kennedy v. Panama Mail Co., L. R. 2 Q. B. 580.

3 Chanter v. Hopkins, 4 M. & W. 399 ; Ollivant v. Bayley, 5 Q. B. 288 ; Prideaux v. Bunnett, 1 C. B. N. S. 613; see Scott v. Littledale, 8 E. & B. 815, as criticized in Benj. on Sales, 3d Am. ed. sec 57.

4 Story, Eq. Jur. 12th ed. sec 151, citing Okill v. Whittaker, 1 De G. & S. 83; McAninch v. Laughlin, 13 Penn. St. 371.

Sec 195

In the Roman law the same distinction is applicable to contracts of exchange, an essential error making in such cases the bargain a nullity.4 According to Savigny, this obtains also in contracts of hiring; a contract, for instance, for hiring silver plate being a nullity should it turn out that the plate was of inferior metal. In cases of gifts, a similar distinction is made. If the donee receives a gilt vessel which the donor believes to be golden, the gift is valid, as the donor suffers no damage from the transaction. If, on the other hand, the owner of a golden vessel gives it away under the impression that it is only gilt, then the gift is void, irrespective of the question whether the donee knew the quality of the metal.5 So as to pawning. If the lender receives in pawn a gilt vessel, which the owner holds to be gold, the lender has a lien on the vessel for his advance.6 This follows from the nature of unilateral contracts, as in this case the inferior security is better than no security at all.