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.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. 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, 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.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, Ishould suppose a contract would be made. 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. The most obvious of seeming exceptions is where the object not in fact so identified, but only its covering or wrapper.
Of course the performance of a promise may be made conditional on all the terms stipulated from the other side being complied with, but conditions attaching to performance can never come into consideration until a contract has been made, and so far the question has been touching the existence of a contract in the first instance.
A different case may be suggested from any yet considered.
Instead of a repugnancy between offer and assent which prevents an agreement, or between the terms of an agreement which makes it insensible on its fact, there may be a like repugnancy between a term of the contract and a previous representation of fact which is not expressly made a part of the contract.The representation may have been the chief inducement and very foundation of the bargain.It may be more important than any of the expressed terms, and yet the contract may have been reduced to writing in words which cannot fairly be construed to include it.
A vendor may have stated that barrels filled with salt contain mackerel, but the contract may be only for the barrels and their contents.An applicant for insurance may have misstated facts essential to the risk, yet the policy may simply insure a certain building or a certain life.It may be asked whether these contracts are not void also.
There might conceivably be cases in which, taking into account the nature of the contract, the words used could be said to embody the representation as a term by construction.For instance, it might be said that the true and well-understood purport of a contract of insurance is not, as the words seem to say, to take the risk of any loss by fire or perils of the sea, however great the risk may be, but to take a risk of a certain magnitude, and no other, which risk has been calculated mathematically from the statements of the party insured.The extent of the risk taken is not specified in the policy, because the old forms and established usage are otherwise, but the meaning is perfectly understood.
If this reasoning were adopted, there would be an equal repugnancy in the terms of the contract, whether the nature of the risk were written in the policy or fixed by previous description.But, subject to possible exceptions of this kind, it would seem that a contract would be made, and that the most that could be claimed would be a right to rescind.Where parties having power to bind themselves do acts and use words which are fit to create an obligation, I take it that an obligation arises.
If there is a mistake as to a fact not mentioned in the contract, it goes only to the motives for making the contract.But a
contract is not prevented from being made by the mere fact that one party would not have made it if he had known the truth.In what cases a mistake affecting motives is a ground for avoidance, does not concern this discussion, because the subject now under consideration is when a contract is made, and the question of avoiding or rescinding it presupposes that it has been made.
