For, by one of the essential terms, the
subject-matter of the agreement was the contents of certain
barrels, and nothing else, and, by another equally important, it
was mackerel, and nothing else; [311] while, as a matter of fact,
it could not be both, because the contents of the barrels were
salt. As neither term could be left out without forcing on the
parties a contract which they did not make, it follows that A
cannot be required to accept, nor B to deliver either these
barrels of salt, or other barrels of mackerel; and without
omitting one term, the promise is meaningless.
If there had been fraud on the seller's part, or if he had known
what the barrels really contained, the buyer might have had a
right to insist on delivery of the inferior article. Fraud would
perhaps have made the contract valid at his option. Because, when
a man qualifies sensible words with others which he knows, on
secret grounds, are insensible when so applied, he may fairly be
taken to authorize his promisee to insist on the possible part of
his promise being performed, if the promisee is willing to forego
the rest.
Take one more illustration like the last case. A policy of
insurance is issued on a certain building described in the policy
as a machine-shop.
Pages:
363
364
365
366
367
368
369
370
371
372
373
374
375
376
377
378
379
380
381
382
383
384
385
386
387