So far from
mistake having been the ground of decision, as mistake, its only
bearing, as it seems to me, was to establish that neither party
knew that he was understood by the other to use the word
"Peerless "in the sense which the latter gave to it. In that
event there would perhaps have been a binding contract, because,
if a man uses a word to which he knows the other party attaches,
and understands him to attach, a certain meaning, he may be held
to that meaning, and not be allowed to give it any other. /1/
Next, suppose a case in which the offer and acceptance do not
differ, and in which both parties have used the same words in the
same sense. Suppose that A agreed to buy, and B agreed to sell,
"these barrels of mackerel," and that the barrels in question
turn out to contain salt. There is mutual mistake as to the
contents of the barrels, and no fraud on either side. I suppose
the contract would be void. /2/
It is commonly said that the failure of the contract in such a
case is due to the fact of a difference in kind between the
actual subject-matter and that to which the intention of the
parties was directed. It is perhaps more instructive to say that
the terms of the supposed contract, although seemingly
consistent, were contradictory, in matters that went to the root
of the bargain.
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