Sec 180

When there is an esential error as to parties to a negotiation, it stands to reason that this negotiation cannot become a binding contract.4 A., for instance, marries B. under the impression that B. is C. There has been a false personation, or an accidental transposition of parties in such a way that the blunder was not discovered until after the ceremony. In such cases it could not be maintained that there was a valid marriage between A. and B. The distinction between essential and nonessential error (i. e. between error that goes to identity, and error that goes to mere accident) is here well illustrated. A. marries B., under the impression that A. is rich, and A. turns out to be a pauper; but in this case, as the error is not to identity but to accident, there is a contract that binds.5 Or, the object being to employ a specialist of great celebrity, a letter is sent to the specialist in question, but is received by a person bearing the same name, who accepts the proposal. Here there is no contract, though it would be otherwise were the letter sent to the person for whom it was intended, under a mistaken idea of his qualifications.1 If an author, also, contracts with a publisher to write a book, the contract is personal with the publisher, and cannot be assigned by him to a third party.2 Or, indentures are executed by which an apprentice is bound to a particular master, in which case (supposing the indenture does not otherwise provide, or there is no enlarging local custom), there can be no assignment by the master to a stranger.3 Or, certain discretionary power is given to a particular broker, in which case such power cannot, without the principal's assent, be transferred to another broker.4 Or, A., intending to buy from B., against whom he has a setoff, proposes by mistake to buy from C, in which case a mistake as to the person dealt with prevents the contract from coming into existence from want of assent.6 Or, the owner of land agrees to lease it, as he supposes, to an experienced farmer, and an impostor takes the farmer's name, and enters on possession ; in this case no title passes, though it would have been otherwise had an intended lessee taken the land under a mistake by the owner as to his qualifications.6 Even in those systems of jurisprudence in which error in other respects is held not necessarily to preclude the making of a contract, this effect is imputed to error as to the identity of the person with whom the negotiations are had.7 An agreement to sell to a firm alleged to be composed of particular persons does not sustain a contract to sell to a firm differently composed;1 nor can one partner introduce an assignee into the firm without his co-partners'consent;2 nor can an agent introduce a sub-agent, in matters involving discretion, without the principal's assent ;3 and as a general rule, when the authority conveyed in a mandate of agency is one which requires peculiar aptitude in, and conveys peculiar discretion to the agent, the agent, except in cases of necessity, cannot transfer his duties and authority to a substitute.4 An attorney-at-law, therefore, cannot, in discretionary matters, without his client's assent, convey his authority to a deputy ;5 nor can an auctioneer, with discretion, transfer such discretion to a stranger.6 -So far has this principle been pushed in our common law, that it has been held that in all cases involving personal indebtedness, a creditor cannot be compelled to accept satisfaction except from his immediate debtor.7-On the other hand, when by the mistake as to person no injury is wrought, it is not a ground to set aside the contract. "In the common case of a trader who sells for cash, it can make no possible difference to him whether the buyer be Smith or Jones, and a mistake of identity would not prevent the formation of the contract."1 The dealing is with a generic person, not a specific person; and if there be no essential failure as to the solvency of the person dealt with, there is no avoiding error. And when a purchaser, after being put on his guard as to to a mistake of identity, persists in dealing with the vendor, he cannot set up his mistake as a defence.2

Essential error as to parties precludes contract.

1 Hitchcock v. Gidding, 4 Price, 135 ; Conturier v. Hastie, 5 H. L. C. 673; Allan v. Hammond, 11 Pet. 63.

2 L. 6, pr. L. sec 2, de Contr. emt. (18.1).

3 Savigny, Rom. Recht. III. 304.- Mr. Pollock (Wald's ed. 425) treats cases of this class under the head of mistake. They undoubtedly involve mistake, but the differentia is objective ; it is the nonexistence of the object of the contract, which is a defence, so far as specific performance is concerned, irrespective of the scienter. At the same time, a party, by asserting the existence of a non-existent condition, may estop himself from asserting the non-existence of such condition.

4 See as to false personation, infra, sec 183.

5 Infra, sec 265. An apparent exception to this rule is recognized in states in which it is held that for a woman with child by another person to conceal this fact from a man whom she marries avoids the marriage. Infra, sec 265. To the same effect is the Roman law. Koch, ut supra, 141.

1 See Chapin v. Longworth, 31 Oh. St. 421.

2 Stevens v. Benning, 1 K. & J. 168; Hale v. Bradbury, L. R. 12 Ch. D. 886.

3 Cooper v. Simmons, 7 H. & N. 707; Davis v. Coburn, 8 Mass. 299 ; Com. v. Vanlear, 1 S. & R. 248 ; Com. v. Jones, 3 S. & R. 158 ; Biggs v. Harris, 64 N. C. 413 ; Spears v. Snell, 74 N. C. 210. Otherwise when there is statutory provision. Hunsucker v. Elmore, 54 Ind. 209 ; see Johnson v. Dodd, 56 N. Y. 76.

4 Henderson v. Barnwall, 1 Y. & J. 387; Cochran v. Irlam, 2 M. & S. 301; Locke's App., 72 Penn. St. 491.

5 Benj. on Sales, 3d Am. ed. sec 58; Mitchell v. Lapage, Holt, N. P. 253; Boulton v. Jones, 2 H. & N. 567 ; Boston Ice Co. v. Potter, 123 Mass. 28.

6 But see Hunter v. Walters, L. R. 7 Ch. 75.

7 Koch, op. cit. sec 77; see Bis-pham's Eq. sec 190 ; Kerr on Fraud and Mist. 406, 436.

1 Mitchell v. Lapage, Holt, N. P. 253. 2 Pollock, Wald's ed. 411; Lindley on Part. i. 717.

3 Wh. on Agency, sec 28.

4 See on the general question, Wh. on Agency, sec 28, 579, 645, 709, 756 ; 2 Kent, Com. 633; Miles v. Bough, 3 Ad. & El. (N. S.) 845 ; Henderson v. Barnwall, 1 Y. & J. 387 ; Cochran v. Irlam, 2 M. & Sel. 301 ; Warner v. Martin, 11 How. 209 ; Emerson v. Hat Co., 12 Mass. 241; Lyon v. Jerome, 26 Wend. 485 ; Evans v. Waln, 71 Penn. St. 69 ; Locke's App., 72 Penn. St. 491; Adams v. Jacoway, 34 Ark. 542.

5 Paddock v. Colby, 18 Vt. 485; Bleakley in re, 5 Paige, 311; Pollard v. Rowland, 2 Blackf. 22 ; Johnson v. Cunningham, 1 Ala. 249.

6 Coles v. Trecothick, 9 Ves. 234; Stone v. State, 12 Mo. 400. As to false personation, see infra, sec 183.-Savigny, on the topic before us, cites the following Roman rulings : If I receive a loan from Sejus, which I suppose comes from Gaius, this imposes no obligation on my part to Sejus ; "non quia pecu-niam tibi credidi, hoc enim nisi inter consentientes fieri non potest." L. 32 de rel. cred. (12.1).-If I prefer to loan money to Titius, a man of means, whom I do not personally know, and another person comes to me in his name, and obtains from me the money, this gives the latter no title, and he becomes criminally responsible for the false personation. L. 52, sec 21, L. 66, sec 4 de furtis (42.2).

7 James v. Isaacs, 12 C. B. 791; Lucas v. Wilkinson, 1 H. & N. 420 ; Robinson v. Davidson, L. R. 6 Ex. 269; Mullen v. Eno, 14 N. Y. 597, cited Wald's Pollock, 410. See infra, sec 184, 506-7; and see also, as to novation, infra, sec 852.