Sec 186

An essential error as to the identity of a thing which is the subject of a negotiation (error in corpore), on the same reasoning, prevents the negotiation becoming a contract. This is an established rule of the Roman law.1 If A. agrees, for instance, to sell to B. one of two houses, and one of these houses is in A.'s mind at the time, and another in B.'s mind, there is no contract between A. and B., since A. and B. had different things in mind. Or, if A. agrees to lease to B. a particular suite of rooms, but the rooms B. has in his mind are essentially different from those A. has in his mind, there is no lease, for they have not the same object in view ;2 and so where one party has in mind a house in a particular street, in a particular town, and another party another house in another street of the same name, in the same town;3 and where there is a material mistake as to the location of a piece of land.4 The same rule is applicable where one party agrees to purchase an unopened cask containing, as is alleged, a designated article, and the cask has an utterly different article in it;5 and where one party has in mind cotton to leave Bombay in October, while the other party has in mind cotton to leave Bombay in December, the difference of time being material.6 In fine, "where through some mistake of fact each was assenting to a different contract, there is no real valid agreement, notwithstanding the apparent mutual assent."7-Of errors in identity Savigny gives the following illustrations: A testator bequeaths a particular chattel by name, he intending at the time to have given another chattel; in this case, the legacy is altogether inoperative.1 The vendor and the purchaser, when making a bargain, have totally different chattels in mind, and in this case, there can be no sale; and the same principle applies to bargains for hiring and other bargains for transfer of goods.2 Even tradition, according to Savigny, requires concurring wills, and is rendered invalid by a misunderstanding as to the identity of the thing to be transferred; and by an illusive tradition of this kind neither property nor usucapion can be acquired.3

Essential error as to identity of thing precludes contract.

1 Bank of Pittsburgh v. Neal, 22 How. 96, and other cases cited Wald's Pollock, 403; and. see infra, sec 204, 697 et seq., as to filling blanks.

2 Foster v. Mackinnon, L. R. 4 C. P. 704; London Bank v. Wentworth, L. R. 5 Ex. D. 96.

3 R. v. Hart, 1 Mood. C. C. 486 ; 7 C. & P. 652; R. v. Wilson, 2 C. & K. 527 ; 2 Cox C. C. 426 ; 1 Den. C. C. 284; State v. Flanders, 38 N. H. 324; Wilson v. Commis., 70 111. 46 ; State v. Maxwell, 47 Iowa, 454; as to filling blanks, see infra, sec 697 et seq.

4 Flower v. Shaw, 2 C. & K. 703; Wright's Case, 1 Lew. C. C. 135.

5 Bigelow on Est. 3d ed. 484, 485, 599 ; Wh. on Ev. sec 1143 ; Bispham's Eq. sec 282; Forsyth v. Day, 46 Me. 176 ; Stevens v. Dennett, 51 N. H. 324 ; Greenfield Bk. v. Crafts, 4 Allen, 447; Zuchtmann v. Roberts, 109 Mass. 53; Barnard v. Campbell, 55 N. Y. 456. That a forged signature may be ratified, see Wh. on Agency, sec 71.

6 Bramwell, J., Wake v. Harrop, 6 H. & N. 768 ; Leake, 2d ed. 313.

7 Infra, sec 1205 et seq.; Canedy v. Marcy, 13 Gray, 373.

1 Supra, sec 4, 171 et seq.; L. 9 pr. sec 1, D. decont. emt. (18, 1), L. 32, 83, sec 1; L. 137, sec 1, D. de verb. oblig. (45.1), L. 34, pr. D. de acquir. vel amit. possess. (41, 2).

2 1 Story, Eq. Jur. 12th ed.sec 134 a, 144 ; Story on Cont. sec 535 ; Milligan v. Cooke, 16 Vea. 1; Poole v. Shergold, 1 Cox, 731.-See discussion in Benj. on Sales, sec 600-2.

3 Kyle v. Kavanagh, 103 Mass. 356 ; see Barfield v. Price, 40 Cal. 535.

4 Spurr v. Benedict, 99 Mass. 463; Watts v. Cummins, 59 Penn. St. 84 ; though see White v. Williams, 48 Barb. 222.

5 Conner v. Henderson, 15 Mass. 319.

6 Raffles v. Wichelhaus, 2 H. & C. 906.

7 Benj. on Sales, 3d Am. ed. sec 50, citing Thornton v. Kempster, 5 Taunt. 786 ; Calverly v. Williams, 1 Ves. Jr. 210 ; Keele v. Wheeler, 7 M. & G. 665; Rice v. Dwight Man. Co., 2 Cush. 80 ; Gardner v. Lane, 9 Allen, 499, s. c. 12 Allen, 44; Kyle v. Cavanagh, 103 Mass. 356 ; Harvey p. Harris, 112 Mass. 32; Sheldon v. Capron, 3 R. I. 171 ; see fully, cases cited, supra; sec 4, 178 et seq.

1 L. 9, sec 1, de her. inst. (28, 5).

2 L. 9, pr. de contr. emt. (18, 1).- L. 57, de O. et A. (44, 7).

3 See to same effect, Raffles v. Wich-elhaus, 2 H. & C. 906 ; Calverly v. Williams, 1 Ves. Jun. 210 ; Phillips v. Bistolli, 2 B. & C. 511; Leake, 2d ed. 316 ; Alvanley v. Kinnaird, 2 Mac. &G. 1. That specific performance will be refused in cases of mistake of this class, see Malins v. Freeman, 2 Keen, 25 ; Colyer v. Clay, 7 Beav. 188 ; Jones v. Clifford, L. R. 3 Ch. D. 779 ; Holmes' App. 77 Penn. St. 50 ; Miles v. Stevens, 3 Barr, 21 ; Brack v. Tucker, 42 Cal. 346. In Flight v. Booth, 1 Bing. N. C. 376, Tindal, C. J. said: "With respect to misstatements which stand clear of fraud, it is impossible to remember all the cases ; some of them laying it down that no misstatements, which originate in carelessness, however gross, shall avoid the contract, but shall form the subject of compensation only ; Duke of Norfolk v. Worthy, 1 Camp, 340 ; Wright v. Wilson, 1 Mood. & R. 207, whilst other cases lay down the rule, that a misdescription in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale. Jones v. Edney, 3 Camp, 285 ; Waring v. Hog-gart, Ry. & M. 39, and Stewart v. Allis-ton, 1 Mer. 26. In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may be reasonably supposed that, but for such misdescription, the purchaser might never enter into the contract at all, in such cases the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of the sale."".