(b) Athenaeum Life Assurance Society v. Pooley, 3 De G. & J. 294; Graham v. Johnson, L. R. 8 Eq. 36, 43; above, p. 584.

(c) Above, p. 667.

(d) Above, pp. 439, 440, 463, 471, 479, 490, 493.

Where one enters into an apparent contract under a mistake as to the person with whom he is contracting, and the personality of the other party is a material element in determining his intention, there is no true consent and the contract is void (h); unless he be estopped from proving his real intention. Thus if A. be induced by means of personation or any other fraud to sign a contract for sale of his land to B. under the impression that he is contracting with C, there is no real consent, no true agreement between the parties (i); the case is the same as if A. signed the contract in the belief that it was a mortgage (k); and A.'s supposed act in the law is altogether void. But if B., acting in good faith and without any fraudulent intent, go to A. and offer to buy A.'s land and A. sign an agreement accordingly, A. cannot, it is submitted, escape from the obligation so contracted by proving that he supposed that B. was C, if B. did nothing to induce that belief and a man of ordinary intelligence would reasonably and naturally suppose from A.'s acts and words that he intended to contract with B. (/), and provided that B. were not aware that A. contracted with him under the impression that he was C. (m). If one party to a sale of land be under a mistake as to the person of the other contractor, but the personality of the latter be not a material element in determining his intention, he cannot avoid the contract on the ground of his mistake. Thus, where B. bought land of A., ostensibly on his own account but really as agent for C , and it appeared that A., provided he got his price, would have been equally willing to seil to any other person, it was held that A. could not resist the specific performance of the contract (n).

Mistake as to the person of the other party to the contract.

Estoppel from proving error in the person.

(e) See above, pp. 496 - 498.

(f) For this purpose it is, as we have seen, immaterial that the subsequent purchaser has not the legal estate; above, p. 674, n. (a).

{g) See Rose v. Watson, 10 H. L. C. 672, 678.

(A) Boulton v. Jones, 2 H. & N. 564; Benjamin on Sale, 46, 2nd ed.; Smith v. Wheatcroft, 9 Ch. D. 223, 230; Nash v. Dix, 78 L. T. 445, 448, 449.

(i) Hardman v. Booth, 1 H. & C. 803; Hollins v. Fouler, L. E. 7 H. L. 757; Cundy v. Lindsay, 3 App. Cas. 459; Re Cooper, 20 Ch. D. 611; and see Gordon v. Street, 1899, 2 Q. B. 641, where the defendant only pleaded that the contract was voidable for fraud, but might, it seems, have alleged that it was void on the ground of mistake.

(k) Above, p. 671.

Smith v.

Wheatcroft.

The same rule holds, subject to the same qualification, with regard to mistake in respect of the property to be sold or the price to be paid, if the mistake go to the whole substance of the consideration (o). Thus, if A. sell to B. his farm called The Grange, and A. have two farms of that name, one in Essex and one in Hampshire, and A. intended to sell his farm in Essex, but B. meant to buy the farm in Hampshire, there is no true consent and no contract between the parties. In this case there is a latent ambiguity in the description of the land purported to be sold, and so parol evidence is admissible to prove what land the parties intended to sell, and it may be shown that they meant different things and their minds were not at one {p).

Mistake as to the property sold or the price.

(I) See above, p. 6G8, n. (h).

(m) See Smith v. Hughes, L. R. 6 Q. B. 597; see below, pp. 689 - 691.

(n) Smith v. Wheatcroft, 9 Oh. D. 223; Nash v. Dix, 78 L. T. 445, 448, 449; Gordon v. Street, 1899, 2 Q. B. 641, 647.

(o) Above, pp. 667 - 671.

(p) Raffles v. Wichelhaus, 2 H.

& C. 906 (sale of goods ex Peerless, there being two ships of that name); above, p. 669. See Altham's case, 8 Rep. 150b, 155; Miller v. Travers, 8 Bing. 244, 248; Doe d. Gord v. Needs, 2 M. & W. 129, 139, 140; Doe d. Hiscocks v. Hiscocks, 5 M. & W. 363, 368, 369; below, p. 699, n. (s).

But if one sign a contract for the purchase of a piece of land, of which the description in the contract is free from ambiguity and completely identifies it, he will be estopped from proving that he really intended to buy a different plot, if his mistake were due to his own inadvertence, and his outward acts and demeanour would naturally and reasonably lead the other party to suppose that he meant to buy the land described (q). On this point, as affecting the validity of the contract at law, the dictum of Collins, M. R., in the case of Van Praagh v. Everidge, is, it is submitted, misleading. The defendant in that case, purely through his own inadvertence, bid at an auction for Lot 1 under the impression that he was bidding for Lot 2, and Lot 1 was knocked down to him accordingly. He afterwards declined to sign a memorandum of the contract: but the auctioneer signed it for him (r). The memorandum so signed ascribed a wrong date to the contract. The vendor sued for specific performance of the contract, which was granted by Kekewich, J. This involved the decision that there was a contract valid at law, as the Court has no jurisdiction to grant specific performance of a void agreement (s). In the Court of Appeal, however, the judgment of Kekewich, J., was reversed purely on the ground that, as the wrong date had been inserted in the contract, there was no sufficient memorandum to satisfy the Statute of Frauds (f). But it had also been argued that there was no true consent of the parties, their minds being directed to different things. On this point, Collins, M. R., said: "It is not clear to my mind that the parties ever were ad idem; I do not think that they were, but it is unnecessary to say anything further about that, as the plaintiff's case fails on the other point." This was a most unfortunate remark; it gives the impression that, if the memorandum had been sufficient to satisfy the statute, there would nevertheless have been no contract between the parties, because their minds were not at one; and the reporter has done his best to fix this impression by recording it in the headnote with a semble. But it is submitted that the learned judge overlooked the qualification above mentioned to the rule of law, that true consent is necessary to make a contract, and did not consider whether the defendant was not estopped from proving his real intention. And it is contended that, if the defendant so conducted himself (as apparently he did) that the auctioneer would naturally and reasonably infer that he meant to bid for Lot 1, then it was not open to him, if sued upon the apparent contract at law, to show that the intention which he had so manifested was not his true intention (u). A contract for the sale of land may also be void for want of true consent owing to a mistake as to the price. This may occur where one bids at an auction under a misapprehension as to the amount of his bidding (x); but in any such case the facts would be likely to raise the question whether the party mistaken were at liberty to prove his real intention or were estopped by his conduct and outward demeanour from doing so. It seems that upon a sale of lands, as on a sale of goods, any mistake in the physical contents or quantity of the thing sold or the price, must necessarily go to the whole substance of the consideration at law; since a contract is broken at law in case of the smallest deficiency in quantity of the thing promised (y). And the same appears to be true of a mistake as to quantity of estate or title; as where one thought he was buying unincumbered freehold and the other intended to sell copyhold, or leasehold, or land subject to restrictive covenants; for, as we have seen (z), it is an essential condition of the sale of land that the vendor show a good title. But a mistake as to the quality of the thing-sold does not necessarily avoid the contract of sale; for a warranty of quality is not an essential element of a sale; it is a collateral engagement to be attached to or omitted from it at the pleasure of the parties (a). It appears, however, that an apparent contract may be void on account of a mistake as to the quality of the thing sold, if the quality were an essential condition of the sale in this sense, that the party mistaken would not have entered into the contract at all unless he was to have a thing of that quality, which he erroneously supposed to be promised to him (b).