The repugnant terms must both be very
important,--so important that the court thinks that, if either is
omitted, the contract would be different in substance from that
which the words of the parties seemed to express.
A term which refers directly to an identification by the senses
has always this degree of importance. If a promise is made to
sell this cow, or this mackerel, to this man, whatever else may
be stricken from the contract, it can never be enforced except
touching this object and by this man. If this barrel of salt is
fraudulently sold for a barrel of mackerel, the buyer may perhaps
elect to take this barrel of salt if he chooses, but he cannot
elect to take another barrel of mackerel. If the seller is
introduced by the name B, and the buyer supposes him to be
another person of the same name, and under that impression
delivers his written promise to buy of B, the B to whom the
writing is delivered is the contractee, if any one is, and,
notwithstanding what has been said of the use of proper names, I
should suppose [313] a contract would be made. /1/ For it is
further to be said that, so far as by one of the terms of a
contract the thing promised or the promisee is identified by
sight and hearing, that term so far preponderates over all others
that it is very rare for the failure of any other element of
description to prevent the making of a contract.
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