the bill, because of his mistake induced by this deceit. The court declared as follows:

"It was plain on principle and authority that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and, therefore, in contemplation of law, never did sign, the contract to which his name is appended."

This rule applies to all written contracts, whether negotiable instruments or not, where a person, without negligence on his part and in reliance upon the misrepresentation of a third person, signs a paper different in character from that which he intended to sign. The contract is as void as if the signature had been forged. This has been held where one signed an agreement believing he was only signing his name to show how it was spelled or as an autograph, or signed a bond believing that he was only signing a petition, or signed a deed which he believed to be only a duplicate lease.10 If the signer intended to sign an instrument of the same nature as that which he executed and was merely deceived as to its form or terms, he will be bound on the instrument in the hands of an innocent holder.

In order that an agreement be void on the ground of mistake as to its character, it is necessary that the misrepresentation causing the mistake be made by some other person than the one seeking to enforce it. Contracts which are voidable because of being entered into under a misrep7 Walker v. Egbert, 29 Wis. 194, 9 Am. Rep. 548; Hewitt v. Jones, 72 Ill. 218. 8 Alexander v. Bragley, 63 N. J. Law 307, 43 Atl. 888.

Schuylkill Co. v. Copley, 67 Pa. St. 386, 5 Am. Rep. 441.

10 McGinn v. Tobey, 62 Mich. 252, 28 N. W. 818, 4 Am. St. Rep. 848.

resentation of the other party, are treated under the subsequent topics of Misrepresentation and Fraud.

As to Identity of Party Contracted With. A person may avoid a contract which is made with one person under the belief that he is contracting with another person. The man making the offer looks to the credit and standing of the one with whom he supposes he is contracting and has no intention of contracting with the substituted party. Thus, where A sent an order for goods to B with whom he was accustomed to deal, and the order was filled in B's name by C, who had succeeded to B's business, it was held that A could not be compelled to pay for the goods sent. "In order to entitle the plaintiff to recover, he must show that there was a contract with himself."'11 In a leading Massachusetts case, the defendant had ceased to deal with the B ice company because of dissatisfaction and contracted for ice with the C company. Later the B company absorbed the C company and continued the delivery of ice without informing the defendant of the change. It was held that the B company could not recover for ice delivered by it to defendant, who was ignorant of the change.12 The court said:

"A party has a right to select and determine with whom he will contract and cannot have another person thrust upon him without his consent. It may be of importance to him who performs the contract, as when he contracts with another to paint a picture or write a book, or furnish articles of a particular kind, or when he relies upon the character or qualities of an individual, or has, as in this case, reasons why he does not wish to deal with a particular party. In all these cases, as he may contract with whom he pleases, the sufficiency of his reasons for so doing cannot be inquired into. If the defendant before receiving the ice or during its delivery, had received notice of the change, and that the Citizens Company could no longer perform its contract with him, it would then have been his undoubted right to have rescinded the contract and to decline to have it executed by the plaintiff. But this he was unable to do 11 Boulton v. Jones, 2 Hurl. & Nor. 564, 565.

12 Boston Ice Company v. Potter, 123 Mass. 28, 25 Am. Rep. 9.

because the plaintiff failed to inform him of that which he had a right to know. If he had received notice and continued to take the ice as delivered, a contract would be implied.”

The result is the same whether the mistake was innocent or the result of fraud.

As to Identity of Subject-Matter. Where an agreement is made respecting something of which there are two of the same name or description, of which one party has one in mind and the other party intends to contract with reference to the other, the agreement is void because of the mistake. There is no meeting of the minds, because one party intends to contract with reference to one subject-matter and the other party with reference to a different subject-matter. Thus, where one offered to sell the second lot on Third Avenue north of Franklin Avenue and had in mind the lot on the east side of the street, and the offeree accepted having in mind the lot on the west side of the street, there was no contract because of the mistake as to the identity of the subject-matter.13 So also where A offered a horse to B for $165, and B accepted thinking the price was $65.14 In a famous English case it was held that there was no contract where A agreed to buy from B a cargo "to arrive ex Peerless from Bombay", and there were two ships named "Peerless" to arrive from Bombay, one in October and the other in December, since A intended the December "Peerless" and B the October "Peerless".15

As to Existence of Subject-Matter. Where the contract is based on the existence of a certain subject-matter, its nonexistence or destruction unknown to the parties at the time of the agreement, prevents a contract coming into existence. Thus, if A contracts to sell B a horse which has died or a house which has burned before the time of the agreement, the contract is void because of the mutual mistake as to the existence of the subject-matter. The parties may, how13 Strong v. Lane, 66 Minn. 94, 68 N. W. 765; Kyle v. Kavanagh, 103 Mass. 356, 4 Am. Rep. 560.

14 Rupley v. Daggett, 74 Ill. 351.

15 Raffles v. Wichelhaus, 2 Hurl. & C. 906.

ever, contract with reference to something the existence of which they know is doubtful and thus become liable for failure to perform.

Of One Party Known to the Other. A contract will not be voidable merely because one party knows that the other is ignorant or mistaken as to the quality or value of the subject-matter of the agreement, provided such ignorance or mistake was not induced by the other party. But if one knows or has good reason to believe that the expressed statement of the other party does not convey his real intention, he cannot create a contract by simply accepting it. Thus, where one W had offered C £2,000 for certain property, which offer C had declined, but afterwards wrote W a letter offering it for £1,250 when he had intended to write £2,150, it was held that W's acceptance by return post did not create a contract.16 This was described as "where a person snapped at an offer which he must have perfectly well known to be made by mistake." So also where one intending to offer cattle for $261.50, by a slip of the tongue offered them for $161.50, it was held that there was no contract because the buyer had good reason to suppose that the price named was a mistake.17 But it is otherwise if the offeree did not know and had no reason to know of the mistake.

§ 57. Mistakes of Law. Ignorance or mistakes as to the law, resulting in the contract having a different effect from that intended by one of the parties, will not render it void or voidable, unless there was fraud or a confidential relation between them. If the mistake of law was mutual, equity will grant relief if it can be done without injustice. Mistake as to the law of another State or country is a mistake of fact.

MISREPRESENTATION

§ 58. Distinguished from Fraud. Apparent consent to an agreement will be unreal where one of the parties has formed untrue conclusions as to the subject matter of the 16 Webster v. Cecil, 30 Beav. 62, 54 Eng. Rep. Re. 812. 17 Harran v. Foley, 62 Wis. 584. 22 N. W. 837.

agreement, because of statements innocently made or facts innocently withheld by the other party. Misrepresentation must be distinguished from fraud. Misrepresentation is an innocent misstatement or non-disclosure of fact, while fraud consists in representations known to be false or made in reckless disregard or ignorance of their truth or falsity. The effect of fraud upon contracts will be treated subsequently.

Misrepresentation will affect the validity of a contract only (a) in certain classes of contracts, called uberrima fides, where one of the parties must rely very largely on the other for his knowledge of the facts, and (b) where the misrepresentation is a term or integral part of the contract.

§ 59. Special Contracts Affected By. Contracts of insurance constitute one class of agreements which may be avoided by innocent misrepresentation or concealment, because of the peculiar dependence of the insurer upon the insured for facts affecting the risk. A false statement of a material fact, however innocently made, may avoid the contract. The same was formerly true of innocent nondisclosure of facts material to the risk about which the plaintiff was not asked, but the general practice at the present time of requiring written answers to numerous questions at the time of applying for the insurance, has reversed the law on this point.18 But an innocent misrepresentation or failure to disclose a material fact in answer to a question may avoid the policy. The rule is now much the same respecting marine, life, and fire insurance.

In England contracts for purchase of stock in corporations and contracts for the sale of land have been considered capable of being avoided because of innocent misrepresentation, but in the United States the tendency is to require that the misrepresentation be fraudulent. Thus, it is held that a purchaser of land is not bound to disclose to the vendor that there are minerals under the land and that it is, therefore, more valuable than the price he offers.19 The

18 Washington Mills Mfg. Co. v. Weymouth Ins. Co., 135 Mass. 503, 505. 19 Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661.