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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 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 ＇314＇ 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 ＇315＇ 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。
I think that it may now be assumed that； when fraud； misrepresentation； or mistake is said to make a contract void； there is no new principle which comes in to set aside an otherwise perfect obligation； but that in every such case there is wanting one or more of the first elements which were explained in the foregoing Lecture。 Either there is n