In fact the building is not a machine-shop,
but an organ factory, which is a greater risk. The contract is
void, not because of any misrepresentation, but, as before,
because two of its essential terms are repugnant, and their union
is insensible. /1/
Of course the principle of repugnancy last explained might be
stretched to apply to any inconsistency between the different
terms of a contract. It might be said, for instance, that if a
piece of gold is sold as eighteen-carat gold, and it is in fact
not so pure, or if a cow is sold as yielding an average of twelve
quarts of milk a day, and in fact she yields only six quarts,
there is no logical difference, [312] according to the
explanation which has just been offered, between those cases and
that of the barrel of salt sold for mackerel. Yet those bargains
would not be void. At the most, they would only be voidable, if
the buyer chose to throw them up.
The distinctions of the law are founded on experience, not on
logic. It therefore does not make the dealings of men dependent
on a mathematical accuracy. Whatever is promised, a man has a
right to be paid for, if it is not given; but it does not follow
that the absence of some insignificant detail will authorize him
to throw up the contract, still less that it will prevent the
formation of a contract, which is the matter now under
consideration.
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