Sec 196

The ground on which the Roman jurists make essential error of fact an avoidance is that such error is sometimes inevitable; "cumfacti interpretatio ple-rumque etiam prudentissimos fallat."7 But to give this protection there must be no serious laches. It is true that perfect diligence is not required to give relief for mistake; for as there never can be in any matter perfect diligence, there could never be any relief from mistake if perfect diligence were required. Culpa levissima, therefore, will not preclude a party from the protection of courts of equity in cases of this kind.8 It is otherwise, however, where he is chargeable with culpa lata, i. e., the lack of that diligence and care which a prudent business man of the same class is accustomed to show uuder similar circumstances.1 Thus, a party who neglects to read a document he signs, cannot have it set aside because it turns out to contain provisions contrary to his intentions ;2 and, as a general rule, " where there has been no misrepresentation, and where there is no ambiguity in the terms of the contract, the defendant cannot be allowed to evade the performance of it by the simple statement that he has made a mistake."3 Hence, where A. made an offer to B. to take a lease of a specific farm by name, stating the farm to contain 250 acres, and where B.'s agent accepted the offer without examining the particulars, it was held that it was no defence to a proceeding to enforce the contract that B.'s asrent intended to lease only 200 acres.4 But where a proposal evidently contains a mistake, an acceptor, by snapping at it, will not be permitted to take advantage of the mistake.5-So far as con-

Contracts of bailment and gifts subject to the same rules.

Negligent error does not excuse.

1 Infra, sec 246.

2 Infra, sec 569 et seq.

3 Southwick v. Bank, 84 N. Y. 421; infra, sec 257.

4 L. 2, de rer. per. (19, 4). L. 22, de V. O. (25, 1).

6 L. 1, sec 2, de Pign. act. (13, 7).

7 Cited Savigny, III. 333.

8 Bispham's Eq. sec 191; Bell v. Gardiner, 4 M. & G. 11; Townsend v. Crowdy, 8 C. B. (N. S.) 477; Union Nat. Bk. v. Sixth Nat. Bk., 43 N. Y.

452; Pardee v. Fish, 60 N. Y. 271; Mayer v. N. Y., 63 N. Y. 455 ; Snyder v. Ives, 42 Iowa, 162. See infra, sec 245, 572, 753.

1 This is settled by many rulings in the Roman law : L. 3, sec 1; L. 6, L. 9, sec 2, quod falso (27, 6) ; L. 11, sec 11, de inter. (11,1) ; L. 3, pr. ad Sc. Mac. (14, 6) ; L. 15, sec 1, de contr. emt. (18, 1); L. 14, sec 10, L. 55, de ædil. ed. (21, 1). Our own law is to the same effect: Bispham's Eq. sec 191 ; Bilbie v. Lumley, 2 East, 469 ; Milnes v. Duncan, 6 B. & C. 671 ; Beaufort v. Neeld, 12 Cl. & F. 248 ; Lenty v. Hillas, 2 De G. & J. 110; Ferson v. Sanger, 1 Wood. & M. 138; Diman v. R. R., 5 R. I. 130; Haggerty v. McCanna, 25 N. J. Eq. 48; Voorhis v. Murphy, 26 N. J. Eq. 434 ; Paulison v. Van Iderstone, 28 N. J. Eq. 306; Merchants' Desp. Co. v. Theilbar, 86 111. 71; Adams Ex. Co. v. King, 3 111. Ap. 316 ; Lamb v. Harris, 8 Ga. 546 ; Lewis v, Lewis, 5 Oregon, 169. See infra, sec 572. That mere negligence does not preclude a party from recovering, see infra, sec 753, and cf. infra, sec 245-572.

2 Wh. on Ev. sec 1245 ; Kerr on Fraud and Mistake, 407 ; Glenn v. Statler, 42 Iowa, 110 ; Sanger v. Dun, 47 Wis. 615 ; Goetter v. Pickett, 61 Ala. 387; supra, sec 185. See infra, sec 572, as to reading conditions on contracts and tickets.

3 Tamplin v. James, L. R. 15 Ch. D. 215-Baggallay, L. J.

4 McKenzie v. Hesketh, L. R. 7 Ch. D. 675.

5 Webster v. Cecil, 30 Beav. 62. That a party is presumed to have read a document signed by him, see Androscoggin Bk. v. Kimball, 10 Cush. 373 ; Lee v. Ins. Co., 3 Gray, 583 ; Ryan v. Ins. Co., 41 Conn. 168 ; Germania Ins. Co. v. R. R., 72 N. Y. 90; Towner v. Lucas, 13 Grat. 705 ; Woodward v. Foster, 18 Grat. 200 ; South. Ins. Co. v. Yates, 28 Grat. 585 ; Hartford Ins. Co. v. Gray, 80 111. 28. This is applied to cases of signature by mark in Doran v. Mullen, 78 111. 342; see Wh. on Ev. sec 932. That a signature to a wrong cerns the general questions involved, it may be stated that negligence on the part of a person paying money under a mistake of fact, is no defence to a suit to recover back the money when the negligence did not prejudice the party sued.1-It is also to be observed, that a party negligently using language that does not express his thoughts, may be estopped, as to parties bona fide acting on his words, from setting up his real meaning.2.