and other circumstances, such as proof of the vendor's acting as agent for the vendee in thus taking out the bill of lading, will rebut the presumption.

Merchants' Nat. Bank v. Bangs, 102 Mass. 291.

Hobart v. Littlefield, 13 R. I. 341.

§ 99. Title in C. O. D. Cases:

If the buyer directs goods to be forwarded to him by express, C. O. D., it seems difficult, upon principle, to come to any other conclusion than that the payment for the goods is by the contract a condition concurrent with the passing of the property, and, therefore, that the title does not pass till the goods are paid for, causing, under this view, the sale to be executed at the place of delivery rather than at the place of shipment.

Nevertheless the weight of authority is contrary to this principle, it being held by most states which have considered the question, that the title passes upon delivery to the carrier, but that possession only is reserved by the vendor till payment.

(1) Holding that title passes upon delivery to carrier: Com. v. Fleming, 130 Pa. St. 138.

Brechwald v. People, 21 Ill. App. 213.

State v. Peters, 91 Me. 31.

Higgins v. Murray, 73 N. Y. 252.

State v. Carl, 43 Ark. 353, 51 Am. R. 565.

(2) Holding that title does not pass until payment:

State v. O'Neil, 58 Vt. 140.

Wagner v. Hallack, 3 Colo. 176. See also O'Neill v. Vermont, 144 U. S. 323.

U. S. v. Shriver, 23 Fed. R. 134.

U. S. v. Cline, 26 Fed. R. 537.

PART III.

AVOIDANCE OF THE CONTRACT.

§ 100. In discussing the formation of the contract, reference was made to the effect of mistake upon the question of mutual assent, in connection with which we saw that in certain cases the mistake might be of such a nature as to make void the assent, and thus prevent the very formation of the contract. There are other cases, however, in which the contract, although entered into under mistake, may yet be avoided by one or by both of the parties. Furthermore, in addition to mistake, other circumstances connected with the negotiations, or certain matters of fact or of law relating to the contract, will render the same either absolutely void or voidable. These matters are those of fraud and of illegality. First, however, let us consider the effect of mistake.

1. MISTAKE.

§ 101. Mistake may be defined as an erroneous mental condition at the time of the contract and in connection with the contract. It is ignorance caused by a mutual misunderstanding, and the same mistake which renders void an executory contract is sufficient to rescind the contract after execution. To render a contract voidable on the ground of mistake, it must be a mutual mistake, and a mistake of fact, not of law.

§ 102. Ex Parte Mistake:

A mistake on the part of only one of the contracting parties will be either known or unknown to the other