p. 594; Bergen vs. Udall, 31 Barb., p. 9; Taylor vs. Taylor, 8 How. U. S., p. 183; Baker vs. Bradley, 7 De G., M. & G., p. 597; see Broun vs. Kennedy, 9 Jur. (. S.), p. 1163; Davies vs. Davies, id., p. 1002. And the same rule applies to any one standing in the relation of a parent (Archer vs. Hudson, 7 Beav., p. 551), as an uncle with whom his niece lived for a number of years (id.), or an elder sister, who had a great ascendancy over the mind of the grantor.-Harvey vs. Mount, 8 Beav., p. 439. So a deed from a lady to a clergyman whom she believed to be inspired, was set aside.-Nottidge vs. Prince, 2 Giff., p. 246. Where agents, appointed by the Controller to investigate the condition of an insurance company which had applied to him, pursuant to statute, for leave to do business, after they had made their report, and had in fact no further power, insisted upon the payment of three hundred dollars as fees, threatening to revoke their report if the fees were not paid, it was held that the money paid under such a threat might be recovered back.-Am. Ex. Fire Ins. Co. vs. Britton, 8 Bosw., p. 148; see Steele vs. Williams, 8 Exch., p. 625; Dew vs. Parsons, 2 B. & Ald., p. 562; Morgan vs. Palmer, 2 B. & C., p. 729. Nothing more than a perverted use of the power of the party need be shown.

Subd. 2.-Longmate vs. Ledger, 6 Jur. (N. S.), p. 481; Blackford vs. Christian, 1 Knapp, p. 77; see Tracy vs. Sacket, 1 Ohio St., p. 58; Rippy vs. Grant, 4 Ired. Eq., p. 443; Whiteburn vs. Hines, 1 Munf., p. 557; Dunn vs. Chambers, 4 Barb., p. 376.

Subd. 3.-Breck vs. Cole, 4 Sandf., p. 88; Bowes vs. Heaps, 3 Ves. & B., p. 119; Wood vs. Abrey, 3 Madd., p. 423; Gould vs. Okeden, 4 Bro. P. C., p. 198; see Cockshot vs. Bennet, 2 T. R., p. 763; Barnardiston vs. Lingwood, 2 Atk., p. 133; Thornhill vs. Evans, id., p. 330; Walmsley vs. Booth, id., pp. 28, 29; Berney vs. Pitt, 2 Vern., p. 14; Nott vs. Hill, id., p. 27; Wiseman vs. Beake, id., p. 121; Roche vs. O'Brien, 1 Ball & B., pp. 337, 359; Bromley vs. Smith, 26 Beav., p. 664; 5 Jur. (N. S.), p. 837; Lamplugh vs. Cox, Dick., p. 411; Heron vs. Heron, 2 Atk., p. 160. These cases seem to support this view. They are generally classed under the head of fraud (see Story Eq. Jur., Secs. 331-337); but the principle on which they depend is not a mere question of fraud.

1576. Mistake may be either of fact or law.

NOTE.-As to mistake of fact there is no question. Mistake of law has been often declared (and in fact well settled in this State) to be no ground for relief at law or in equity.-Smith vs. McDougal, 2 Cal., p. 586; Gross vs. Parrott, 16 Cal., p. 143; Kenyon vs. Welty, 20 Cal., p. 637; Parsons vs. Fairbanks, 22 Cal., p. 343; Bart vs. Wilson, 28 Cal., p. 632; see Champlin vs. Laytin, 13 Wend., p. 417; Storrs vs. Parker, 6 Johns. Ch., p. 166; Lyon vs. Richmond, 2 id., p. 61; Kent vs. Manchester, 29 Barb., p. 595; Story's Eq. Jur., Secs. 111-139. The contrary view has been taken by Judges of high standing. See Champlin vs. Laytin, 18 Wend., p. 422; Many vs. Beckman Iron Co., 9 Paige, p. 188; Stone vs. Godfrey, 5 De G., M. & G., p. 90; Broughton vs. Hutt, 3 De G. & J., p. 501; Evants vs. Strode, 11 Ohio, p. 480; see, also, Wheeler vs. Smith, 9 How. U. S., p. 55. This Chapter undoubtedly modifies the rule heretofore existing in this State as to mistake of law. The cases last cited above seem to have all been well considered. The rule that no relief should ever be granted on the ground of mistake of law seems too harsh and in some cases might work great hardship. There is, however, no doubt but that relief upon this ground must be granted with extreme caution and in only a limited class of cases.-See Sec. 1578.

Mistake, what.

fact.

1577. Mistake of fact is a mistake, not caused by Mistake of the neglect of a legal duty on the part of the person making the mistake, and consisting in:

1. An unconscious ignorance or forgetfulness of a fact past or present, material to the contract; or,

2. Belief in the present existence of a thing material to the contract, which does not exist, or in the past existence of such a thing, which has not existed.

NOTE." Not caused by the neglect of a legal duty." U. S. Bank vs. Bank of Georgia, 10 Wheat., p. 343. Subd. 1.-" Unconscious ignorance."-McDaniels vs. Bank of Rutland, 29 Vt., p. 238; Elwell vs. Chamberlain, 4 Bosw., p. 320; Kelly vs. Solari, 9 M. & W., p. 54; Briggs vs. Vanderbilt, 19 Barb., p. 222-239; Bell vs. Gardiner, 4 M. & G., p. 11; 4 Scott N. R., p. 621. “Forgetfulness."-Kelly vs. Solari, 9 M. & W., p. 54; Lucas vs. Worswick, 1 Moo. & Rob., p. 293. This definition seems to cover all the cases of accident and

Mistake of

law.

surprise against which relief can be had. "Of a fact past."-Willan vs. Willan, 16 Ves., p. 72; McCarthy vs. De Caix, 2 Russ & M., p. 614; Durkin vs. Cranston, 7 Johns., p. 442. "Or present."-Huthacher vs. Harris' Adm'r, 28 Penn. St., p. 491.

Subd. 2.-Reel vs. Hicks, 25 N. Y., p. 289; Kip vs. Monroe, 29 Barb,. p. 579; Briggs vs. Vanderbilt, 19 id., p. 239; Gardner vs. Mayor, etc., of Troy, 26 id., p. 423; Wheadon vs. Olds, 20 Wend., p. 174; Mowatt vs. Wright, 1 id., p. 360; Allen vs. Mayor, etc., of N. Y., 4 E. D. Smith, p. 404; Hitchcock vs. Giddings, 4 Price, p. 135; Dan., 1; Hastie vs. Couturier, 9 Exch., p. 102; affirmed 5 H. of L. Cas., p. 673; Strickland vs. Turner, 7 Exch., p. 208; see Belknap vs. Sealey, 14 N. Y., p. 143; Martin vs. M Cormick, 8 N. Y., p. 335; Ketchum vs. Lank of Commerce, 19 N. Y., p. 502. The dieta contained in some cases, to the effect that a mistake in respect of matters as to which the party had 66 means of knowledge," does not avoid a contract (see Mutual Life Ins. Co. vs. Wager, 27 Barb., p. 354; Clarke vs. Dutcher, 9 Cow., p. 674; Milnes vs. Duncan, 6 B. & C., p. 716), are not sustained by the decisions (see Allen vs. Mayor, etc., of N. Y., 4 E. D. Smith, p. 404; Kelly vs. Solari, 9 M. & W., p. 54), and have been finally overruled (Townsend vs. Crowdy, 8 C. B. [N. S.], p. 477; Bell vs. Gardiner, 4 M. & G., p. 11; Dails vs. Lloyd, 12 Q. B., p. 531.) For mistakes held to be mistakes of law, and not of fact, see California cases cited in note to Sec. 1576, ante. For relief affo:ded in cases arising from mistake of fact, and what constitutes such mistake, see Barfield vs. Price, 40 Cál., p. 535; Lestrade vs. Barth, 19 Cal., p. 660; Quivey vs. Baker, 37 Cal., p. 465; Wagenblast vs. Washburn, 12 Cal., p. 208; Hicks vs. Whiteside, 23 Cal., p. 404; Moss vs. Mayo, 23 Cal., p. 421; Zeile et al. vs. Dukes, 12 Cal., p. 479. Mistake is not constructive fraud. Mercier vs. Lewis, 39 Cal., p. 532.

1578. Mistake of law constitutes a mistake, within the meaning of this Article, only when it arises from:

1. A misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law;

or,

2. A misapprehension of the law by one party, of

which the others are aware at the time of contracting,

but which they do not rectify.

NOTE.-Subd. 1.-Many vs. Beekman Iron Co., 9
Paige, p. 188; Hall vs. Reed,

Barb. Ch., p. 501; see
Pitcher vs. Turin Plank Road Co., 10 Barb., p. 436;
Wake vs. Harrop, 6 H. & N.,

p. 768.

Subd. 2.-In Cooke vs. Nathan, 16 Barb., p. 342, it was held that a misrepresentation of the law by one party, upon which the other ignorantly relied, was a fraud. It seems to follow that a transaction such as is described in the text should be relieved against, as a mistake, if not as a fraud. See note to Sec. 1576.

1579. Mistake of foreign laws is a mistake of fact. Mistake of

NOTE. Bank of Chilicothe vs. Dodge, 8 Barb., p.
233; McCormick vs. Garnett, 5 De G., M. & G.,
p. 278;
Haven vs. Foster, 9 Pick., p. 113; Leslie vs. Bailie, 2
You. & C. Ch., p. 91; see Merchants' Bank vs. Spald-
ing, 12 Barb., p. 302.

foreign laws.

of consent.

1580. Consent is not mutual, unless the parties all Mutuality agree upon the same thing in the same sense. But in certain cases defined by the Chapter on Interpretation, they are to be deemed so to agree without regard to the fact.

NOTE.-"Same thing."-Scranton vs. Booth, 29 Barb., p. 171; Salters vs. Pruyn, 18 How. Pr., p. 512. "In the same sense."-Hazard vs. New England Ins. Co., 1 Sumn., p. 218. In Bruce vs. Pearson, 3 Johns., p. 534, it was held that if a person sends an order to a merchant to send him a certain quantity of goods on certain terms of credit, and the merchant sends a less quantity of goods on a shorter credit, and the goods sent are lost by the way, the merchant must bear the loss, for there is no contract express or implied between the parties. So where shingles were sold and delivered at three dollars and twenty-five cents, but there was a dispute as to whether the three dollars and twenty-five cents was for a bunch or for a thousand, it was held that unless both parties had understandingly assented to one of those views, there was no special contract as to the price.-Greene vs. Bateman, 2 Woodb. & M., p. 359.

1581. Consent can be communicated with effect, Communionly by some act or omission of the party contracting,

cation of consent.

Mode of communicating acceptance

of proposal.

When communication deemed complete.

by which he intends to communicate it, or which necessarily tends to such communication.

NOTE. This excludes the possible case of a declaration of consent made to a person having no interest in the contract, and communicated by him to the other party, without authority. A mere voluntary compliance with the conditions of a proposed contract by one who had not previously assented to it, does not render the other liable on it.-Johnston vs. Fessler, 7 Watts, p. 48; Ball vs. Newton, 7 Cush., p. 599. In Meynell vs. Surtees, 31 E. L. & E., p. 475, certain parties were desirous of constructing a railway on the way-leave principle, and for that purpose entered into negotiations with a land owner, and proposed terms which were discussed, but not agreed to. The company went forward, however, and constructed their road. Held: that the acquiescence of the land owner in the construction of the road did not amount to an acceptance of the terms proposed by the company.

1582. If a proposal prescribes any conditions concerning the communication of its acceptance, the proposer is not bound unless they are conformed to; but in other cases any reasonable and usual mode may be adopted.

NOTE.-Dunlop vs. Higgins, 1 H. of L. Cas., pp. 381-398; Vassar vs. Camp, 11 N. Y., p. 451.

1583. Consent is deemed to be fully communicated between the parties as soon as the party accepting a proposal has put his acceptance in the course of transmission to the proposer, in conformity to the last section.

NOTE. This section recognizes the rule that consent is complete as soon as a letter of acceptance is put into the Post Office.-Mactier vs. Frith, 6 Wend., p. 103; Vassar vs. Camp, 11 N. Y., p. 441; Dunlop vs. Higgins, 1 H. L. Cas., p. 381; Tayloe vs. Merchants' Fire Ins. Co., 9 How., U. S., p. 390; Eliason vs. Henshaw, 4 Wheat., p. 228; Hamilton vs. Lycoming Ins. Co., 5 Penn. St., p. 339; Averill vs. Hedge, 12 Conn., p. 436; Beckwith vs. Cheever, 1 Fost., N. H., p. 41; Duncan vs. Topham, 8 C. B., p. 225. To the contrary is Gillespie vs. Edmonston, 11 Humph., Tenn., p. 553.