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mbay。〃 There were two such vessels sailing from Bombay； one in October； the other in December。 The plaintiff meant the latter； the defendant the former。 It was held that the defendant was not bound to accept the cotton。 /1/ It is commonly said that such a contract is void； because of mutual mistake as to the subject… matter； and because therefore the parties did not consent to the same thing。 But this way of putting it seems to me misleading。 The law has nothing to do with the actual state of the parties' minds。 In contract； as elsewhere； it must go by externals； and judge parties by their conduct。 If there had been but one 〃Peerless；〃 and the defendant had said 〃Peerless〃 by mistake； meaning 〃Peri；〃 he would have been bound。 The true ground of the decision was not that each party meant a different thing from the other； as is implied by the explanation which has been mentioned； but that each said a different thing。 The plaintiff offered one thing； the defendant expressed his assent to another。
A proper name； when used in business or in pleading； /2/ means one individual thing； and no other； as every one knows； and therefore one to whom such a name is used must find out at his peril what the object designated is。 If there are no circumstances which make the use deceptive on either side； each is entitled to insist on the ＇310＇ meaning favorable to him for the word as used by him； and neither is entitled to insist on that meaning for the word as used by the other。 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。 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。 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。 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。 /2/ 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 fir