CHAPTER V. MISTAKE. 110. We may next pass to the consideration of the jurisdiction of the Courts of Equity founded upon the ground of mistake. This is sometimes the result of accident in its large sense; but as contradistinguished from it, it is some unintentional act or omission or error, arising from ignorance, surprise, imposition, or misplaced confidence.1 Mistakes are ordinarily divided into two sorts, mistakes in matter of law, and mistakes in matter of fact. 111. And first in regard to mistakes in matter of law. (a) It 1 Mr. Jeremy defines Mistake, in the sense of a Court of Equity, to be 'that result of ignorance of law or of fact which has misled a person to commit that which, if he had not been in error, he would not have done.' Jeremy, Eq. Jurisd. B. 3, Pt. 2, p. 358. This definition seems too narrow, and it does not comprehend cases of omission or neglect. May there not be a mistake from surprise or imposition, as well as from ignorance of law or fact? (a) Mistake of Law. Few subjects of the law present, at first reading of the authorities, so small an attempt at the expression of a pervading principle as the subject of mistake. Much has indeed been done of late towards reducing the mass of cases to order (Pollock, Contract, ch. 8, and Holmes, Common Law, lect. 9), but not a little remains undone. The underlying principles of relief, while seldom if ever sufficiently enunciated by the courts, are reasonably clear, so far at least as the question of relief for mistake of fact is concerned, and, as the writer thinks, of relief for mistake of law as well. These principles, in their relation to contract, may be formulated into the following propositions: 1. Relief for mistake, either in equity or by an equitable plea at law, is based on mistake in regard to matter of the agreement as distinguished from mistake in respect of the inducements thereto, or in regard to some condition precedent to the same. Something touching the supposed contract must be asserted on the one side and denied on the other to have been agreed. In a word, relief proceeds upon the ground of want of agreement. The minds of the parties have not met. See Pollock, Contract, 409 (3d ed.). 2. The courts therefore will not interfere for mere mistake, however serious, in regard to an external matter not a subject of the agreement or is a well-known maxim, that ignorance of law will not furnish an excuse for any person, either for a breach or for an omission a condition precedent to the existence of the same. In case of misapprehension or ignorance of such a matter interference may be expected only when there has been fraud or at least misrepresentation in regard to it by the other side. 3. On the other hand the courts will interfere (a) where, in any case, the minds of the parties did not meet, or (b) where, in the case of a written contract, they did not meet on the terms expressed in the writing, but did meet on other terms not there appearing. In regard to all of these propositions it is probably safe to assume, in accordance with the way the first one is framed, that the rule is the same with regard to equitable pleas where fully allowed at law, as in courts of equity; the English statute at all events is held to have done away with the old differences between Courts of Law and Courts of Equity in respect of mistake. Redgrave v. Hurd, 20 Ch. D. 1, 12. Hence where equitable pleas are fully allowed, the enforcement of a contract can be resisted by pleading anything which would afford foundation in equity for reforming, enjoining the enforcement of, or rescinding the supposed contract. In this connection a suggestion upon common language of the cases in regard to materiality may be noticed. The proposition is, that the ground of interference must be mistake in the very agreement, when not in regard to a condition precedent. Now where mistake is found to have been made with reference to an agreed term of a contract, the question of the materiality of the term must be excluded; the parties by making it a subject of agreement have made it material, and the courts can have no right to put a different construction upon it. The familiar case of warranties in insurance policies affords an illustration. It is worse than idle with reference to such a case to say that the subject of the alleged mistake must be material. But where the question is whether a mistake was made, as it usually is, the apparent materiality or immateriality of the subject of the mistake may have a bearing upon the decision of the question. Grymes v. Sanders, 93 U. S. 55, well illustrates this. See also Chapman v. Coats, 26 Iowa, 288. On the other hand where it is sought to strike out a clause as not agreed upon in the preliminary negotiations, and as inserted by mistake, the materiality of the clause as interpreted by the court will be the test of the right to the relief sought. The second proposition, that the courts will not interfere for mere mistake as to an external matter not a subject of agreement or a condition precedent thereto, is a necessary result of the first. Illustrations may be found in recent cases. Dambmann v. Schulting, 75 N. Y. 55; Whittemore v. Farrington, 76 N. Y. 452; Webster v. Stark, 10 Lea (Tenn.), 406. See post, $ 210. The proposition covers all that class of cases in which it is held that, in addition to the ignorance of the plaintiff, knowledge on the part of the defendant in respect of the matter in question is not sufficient to justify relief, nor, by the current of authority, even knowledge by the defendant of the plaintiff's ignorance. Laidlaw v. Organ, 2 Wheat. 178; Smith v. Hughes, L. R. 6 Q. B. 597. See post, §§ 149, 205-207. There must be some misleading act by the defendant to afford ground for relief. The third proposition comes more frequently into operation: the courts -to repeat it will interfere (a) of duty; Ignorantia legis neminem excusat;' and this maxim is equally as much respected in equity as in law.1 It probably 1 Bilbie v. Lumley, 2 East, R. 469; Doct. & Stud. Dial. 1, ch. 26, p. 92; Id. Dial. 2, ch. 46, p. 303; Stevens v. Lynch, 12 East, 38; 1 Fonbl. Eq. B. 1, ch. 2, § 7, note (v); Hunt v. Rousmaniere's Adm'rs, 8 Wheaton, R. 174; s. c. 1 Peters, Sup. C. R. 1; s. c. 2 Mason, R. 342; 3 Mason, R. 294; Frank v. Frank, 1 Ch. Cas. 84. How far money paid under a mistake of law is, as the civil law phrases it, liable to repetition, that is, to a recovery back, has been a matter much discussed by civilians, and upon which they are divided in opinion. Pothier and Heineccius maintain the negative; Vinnius and D'Aguesseau the affirmative, the latter especially in a very masterly dissertation. Sir W. D. Evans in the Appendix to his translation of Pothier on Obligations (vol. 2, pp. 408 to 437), has given a Translation of the Dissertations of D'Aguesseau and Vinnius; and Sir W. D. Evans has prefixed to them a view of his own reasoning in support of the same doctrine. (Id. vol. 2, p. 369.) The text of the Roman law seems manifestly on the other side, although the force of the text has been attempted to be explained away, or at least limited. The Digest (Lib. 22, tit. 6, 1. 9, §§ 3, 5) says: Ignorantia facti, non juris, prodesse; nec stultis solere succurri, sed errantibus;' and still more explicitly the Code says (Lib. 1, tit. 18, 1. 10), Cum quis jus ignorans indebitatem pecuniam solverit, cessat repetitio; per ignorantiam enim facti tantum repetitionem indebiti soluti competere tibi notum est.' See also 1 Pothier, Oblig. Pt. 4, ch. 3, § 1, n. 834; 1 Evans's Pothier on Oblig. 523, 524; Pothier, Pand. Lib. 22, tit. 6; Cujaccii Opera, Tom. 4, p. 502; Comm. ad Leg. vii. de Jur. et Fact. Ignor. Heinecc. ad Pand. Lib. 22, tit. 6, § 146; 1 Domat, Civil Law, B. 1, tit. 18, § 1, n. 13 to 17. But the question is a very different one, how far where, in any case, the minds of the parties did not meet at all, or (b) where, in the case of a written contract, they did not meet on the terms expressed in the writing, but did meet on other terms. The first of these two cases in its most common form in equity is a case for injunction and rescission, to be followed, if need be, by delivery up for cancellation, though it may of course be a case for defence at law either upon an ordinary or an equitable plea. The only feature of the case that calls for remark here is the fact that in this class of cases mistake of the plaintiff is sufficient of itself to authorize relief; neither injunction, rescission, nor the equivalent equitable defence at law requires any proof of mistake or of fault on the part of the defendant so long as damages are not sought. Redgrave v. Hurd, 20 Ch. D. 1; Arkwright v. Newbold, 17 Ch. D. 301, 320; Reese Silver Mining Co. v. Smith, L. R. 4 H. L. 64; Paget v. Marshall, 28 Ch. D. 255. See Rider v. Powell, 28 N. Y. 310; Kilmer v. Smith, 77 N. Y. 226; Price v. Ley, 4 Giff. 235; s. c. 9 Jur. N. s. 295; Bridges v. McClendon, 56 Ala. 327, 333. A term of the written contract has been inserted or omitted which the plaintiff never agreed to have there, or to have omitted, as the case may be. The second part (b) of the proposition, upon which an unexpressed term is to be introduced into the writing, or a term therein expunged, covers the case so much considered by the courts under the name of mutual mistake, - not a perfectly accurate term for the case, as the mistake is in the writing and not in the agreement, and the defendant may have intended, or not have been mistaken in regard to, the form of the writing. Rider v. belongs to some of the earliest rudiments of English Jurisprudence; and is certainly so old as to have been long laid up a promise to pay is a binding obligation; for a party may not be bound by the latter to pay, although he may not, if he has paid the money, be entitled to recover it back. Heineccius (ubi supra) insists on this distinction, founding himself on the Roman law. Cujaccius also insists on the same distinction. (Cujac. Opera, Tom. 4, 506, 507, edit. 1758.) D'Aguesseau denies the distinction as not founded in reason, and insists on the same right in both cases. Sir W. D. Evans holds to the same opinion, but insists at all events that a mere promise to pay under a mistake of law is not binding. 2 Evans's Pothier on Oblig. 395, &c. There is certainly great force in his reasoning. It has however been rejected by the English courts; and a promise to pay, upon a supposed liability, and in ignorance of the law, has been held to bind the party. Stevens v. Lynch, 12 East, R. 38; Goodman v. Sayers, 2 Jac. & Walk. 263; Brisbane v. Dacres, 5 Taunt. R. 143; East India Company v. Tritton, 3 B. & Cressw. 280. Mr. Chancellor Kent held a doctrine equally extensive in Shotwell v. Murray, 1 John. Ch. R. 512, 516. See also Storrs v. Barker, 6 John. Ch. R. 166; Clarke v. Dutcher, 9 Cowen, R. 674. In Massachusetts it has been held that money, paid under a mistake of law, may be recovered back; and at all events that a promise to pay under a mistake of law cannot be enforced. May v. Coffin, 4 Mass. R. 342; Warder v. Tucker, 7 Mass. R. 452; Freeman v. Boynton, 7 Mass. R. 488. See also Haven v. Foster, 9 Pick. R. 112, in which there is a very learned argument by counsel on each side on the general doctrine, and the opinions of civilians, as well as the common-law decisions, are copiously cited. Powell, 28 N. Y. 310. See post, note to § 140. However in order to justify the substitution of one term for another in the writing, or the removal of a term, or the insertion of an omitted term, it is plain that, whether the defendant was mistaken or not, the original intention of the parties in regard to the result of the proposed change should be one. Rider v. Powell, supra; Kilmer v. Smith, 77 N. Y. 226; Diman v. Providence R. Co., 5 R. I. 130; Thompsonville Co. v. Osgood, 26 Conn. 16; Betts v. Gunn, 31 Ala. 219; Wright v. Goff, 22 Beav. 207; Metropolitan Soc. v. Brown, 26 Beav. 455; Schoonover v. Dougherty, 65 Ind. 463; Nelson v. Davis, 40 Ind. 366; Boyce v. Lorillard Ins. Co., 4 Daly, 246; s. c. 55 N. Y. 366; Dulany v. Rogers, 50 Md. 524; Harter v. Christolph, 32 Wis. 245; Ledyard v. Hartford Ins. Co., 24 Wis. 496; Ramsey v. Smith, 32 N. J. Eq. 28; Young v. McGown, 62 Me. 56. If a new term is to be added, or substituted for one in the writing, the minds of the parties must have met upon it; if it is sought to remove a term without inserting anything in its place, it is of course enough that the plaintiff never agreed to it as part of the contract. That these propositions are applicable as a general working theory to the case of mistake of law as well as of mistake of fact, must be clear if it be conceded that relief for mistake of law can be granted at all. If relief is to be given, it must be given on the ground of want of union of minds; if the parties have agreed upon the law, then, whether right or wrong their view, there can be no relief. See Irnham v. Child, 1 Bro. C. C. 92; Townshend v. Stangroom, 6 Ves. 328; Hunt v. Rousmaniere, 8 Wheat. 174; s. c. 1 Peters, 1. among its settled elements. We find it stated with great clearness and force in the Doctor and Student,' where it is affirmed An answer to a possible objection based on the second proposition, as to the insufficiency of an external matter, may here be made. Whatever may be said of the machinery of the law, the law itself is not a thing external to the contract; it is not like the secret mine in the vendor's land, or the unknown treaty of peace which will affect the price of a commodity. The law creates, or at least supports, the right; the right does not exist, or does not exist usefully, without the law. It is quite as proper to say, with regard to the existence of the law, that the minds of the parties have not met, as it is to say the same with regard to the existence of the subject of a bargain. That subject is what it is because the law makes it such. To show what constitutes a union of minds with regard to the question of mistake of law will now be the aim of this note. It is too late certainly at the present day to doubt the existence of jurisdiction in equity to grant relief on the ground of a pure mistake of law; though it must be admitted that such doubt has been entertained since as well as before Mr. Justice Story wrote, and the jurisdiction sometimes directly denied. Peters v. Florence, 38 Penn. St. 194; Goltra v. Sanasack, 53 Ill. 456; Zollman v. Moore, 21 Gratt. 313; Brown v. Armistead, 6 Rand. 594. Opposed to this however there is a long line of specific authorities, most of them correct beyond question, in which relief for mistake of law has either been granted, or admitted to be a proper head of Equity Jurisdiction. These will appear throughout the rest of this note. Want of harmony however exists in regard to the special principle on which relief is to be granted or refused; and it will be noticed upon an examination of the cases that the judges are always glad to discover some special equity, aside from the mistake of law, which with the mistake may make their course more clear. Perhaps judges have sometimes been too ready to steer away from the dangers of the subject. It may be safe with Mr. Justice Story to say, though that is not quite clear, that where a party acts or agrees in ignorance of any title in him... [he] seems to labor in some sort under a mistake of fact as well as of law.' Infra, § 130. That is very guarded language. Whether it would be safe to put the case in bolder and positive terms, with recent statements (Cooper v. Phibbs, L. R. 2 H. L. 149, 170; Beauchamp v. Winn, L. R. 6 H. L. 223, 234; Jones v. Clifford, 3 Ch. D. 779, 792; Daniell v. Sinclair, 6 App. Cas. 181, 190; Macknet v. Macknet, 29 N. J. Eq. 54; Webb v. Alexandria, 33 Gratt. 168, 176), is still less clear; and there surely is no need in such a case of falling back upon the law of mistake of fact. To do so seems to cast doubt upon the jurisdiction of equity altogether over mistake of law; for the case is or may be one of the clearest cases of mistake of law, as where a conveyance has been made carrying in effect curtesy, when a recent statute, unknown to the grantor, has been passed creating or reviving such an estate. And it is proper at the outset to notice that if the terms 'mistake of law' and 'ignorance of law' were always used with strict propriety, it would be found that the cases in which relief is granted are cases of ignorance and not of mistake; which latter term implies some notice and consideration of the law. But the terms are commonly used as synonymous; or rather the term 'mistake' has nearly usurped the other's place. |