the promise is founded on a valuable consideration.17 This rule is recognized in those cases which hold that a mere promise after the engagement to settle a certain sum of money upon the intended wife is not binding without consideration,18 or that a promise made after the marriage by a husband to settle property on his wife is void for want of consideration.19 The Phalen case, supra, can be harmonized with these views, because in that case formal articles of marriage had been executed by the parties to the marriage and their respective parents, and there is a strong inference that the document conformed to the English custom and that the promise to settle property was part of the contract to marry.

In making the statement that no consideration is necessary to support a promise in a marriage settlement, the court in the Phalen case relied on two classes of English cases which, it is submitted, do not stand for that proposition. (1) Much reliance was placed on Shadwell v. Shadwell,20 but in that case it was held that the performance of an existing contract obligation was consideration for a promise by a third person, a rule of law which, as seen above, has been squarely rejected by the New York courts.21 (2) Many cases were cited in which there was consideration, that of marriage or the promise to marry, because the promise to make a settlement was embraced in formal marriage articles and was thus a part of the contract to marry.22 In none of these cases was the promise to make a settlement made after the formation of a binding contract to marry.

There is also a third class of English cases in which, though there was no promise to make a settlement and no formal articles of marriage, there was a statement or representation by the parents of one of the parties to the marriage contract that a settlement would be made. This statement or representation was made before and actually induced the formation of the contract to marry.23 In such cases equity enforced and gave effect to the representation, though oral, apparently on the ground of estoppel. Laver v. Fielder, 24 cited in the concurring opinion of the principal case, seems to hold that even if made after there is a binding contract to marry, such representations by a parent will be enforced in equity, if they induced the solemniza

17Holloway v. Headington, 8 Sim. (Eng.) 324 (1837); Andrews v. Andrews, 28 Ala. 432 (1856); see also 21 Cyc. 1271 where it is said, "Marriage settlements being merely civil contracts, all defenses which could be properly set up against other contracts may be set up against them, such as want of consideration."

18Chambers v. Sallie, 29 Ark. 407 (1874).

19Lloyd v. Fulton, 91 Ú. S. 479 (1875). As to a promise by a third person: "If the promise or covenant is made after marriage, it is, of course, voluntary, the marriage consideration being wanting." Eversley, Dom. Rel., (2nd ed.), p. 132. See also Randall v. Morgan, 12 Ves. (Eng.) 67, 73 (1806).

20 Supra, note 4.

21 Supra, note I.

22 Wankford v. Fotherley, supra, note 14; Jones v. Martin, 3 Anst. (Eng.) 882 (1796); Willis v. Black, 4 Russ. (Eng.) 170 (1827); Eardley v. Owen, 10 Beav. (Eng.) 572 (1847); McCarogher v. Whieldon, L. R. 3. Eq. 236 (1867); In re Brookman's Trust, L. R. 5 Ch. App. 182 (1869); Coverdale v. Eastwood, L. R. 15 Eq. 121, 130 (1872); Bennett v. Houldsworth, L. R. 6 Ch. Div. 671 (1877).

23 Hammersley v. De Biel, 12 Cl. & Fin. (Eng.) 45 (1845); Prole v. Soady, 2 Giff. (Eng.) I (1859).

2432 Beav. (Eng.) 1 (1862).

tion of the marriage. This view seems erroneous, because if the parties are already engaged and bound by their mutual promises to marry, the law should presume that nothing but their mutual obligations induced the solemnization of the marriage. However, this case can be harmonized, since the facts can be interpreted in such a way as to make the parent's promise part of the contract to marry. Fred S. Reese, Jr., '18.

Contracts: Rescission for mistake of fact: Error in substantia.— In Cavanagh v. Tyson, Weare & Marshall Co., 116 N. E. (Mass.) 818 (1917), Cavanagh had contracted to drive piles for a pier to be built by the defendant. When the bid was made and accepted, Cavanagh believed that the material through which the piles were to be driven was mud and clay; on the acceptance of his bid, Cavanagh started work, and found a top layer of gravel which was not known to him to exist. Later, the written contract was formally executed without change. Cavanagh then continued the work, the driving becoming increasingly difficult, until finally it was discovered that there was, some distance below the surface, a layer of large stones placed there by a former contractor who had filled in the harbor at that point. Cavanagh refused to continue the work, which could not have been completed save at a great loss to him, and brought this action to recover for work already done. The defendant filed a cross-bill for breach of contract. Cavanagh, as a defense to this cross-action, pleaded that the contract was entered into under mutual mistake of fact, and that he should not be liable thereon. Cavangah was not permitted to recover, and damages were allowed against him for breach of contract, on the ground that a mutual mistake of fact, to invalidate a contract, must be of a fact which is a material element in the minds of both parties when the contract was made; and that the character of the earth through which the piles were to be driven was not such an element.

No branch of the law of rescission of contract for mistake is in more confusion than the rather ill-defined doctrine of rescission for mistake as to the existence of a vital quality of the subject matter. In general, mistake as to the quality of the subject matter of a contract is no ground for rescission. But in a few instances, contracts have been avoided where it appeared that the parties had contracted under mutual mistake in regard to some material quality, the absence of which made the subject matter essentially different from that with regard to which the parties contracted; an esteemed writer has called this error in substantia.2

The leading case on this subject is Sherwood v. Walker. In that case, a cow was sold, both parties believing her to be sterile; it was later found that she was with calf. The cow had been sold for eighty dollars; she was worth, for breeding purposes, one thousand dollars. The vendor refusing to deliver the cow, the vendee brought an action of replevin to recover her. Recovery was refused; the mistake, it

Wheat v. Cross, 31 Md. 99 (1869); Hecht v. Batcheller, 147 Mass. 335 (1888); Wood v. Boynton, 64 Wis. 265 (1885).

"Brantly, Contracts (2d ed.), sec. 71. 66 Mich. 568 (1887).

* * *

was said, went to the very nature of the thing sold. "A barren cow is substantially a different creature than a breeding one. She was not in fact the animal, or the kind of animal, the defendants intended to sell or the plaintiff to buy."

The question has frequently arisen with regard to contracts for the lease or sale of land. Thwing v. Hall is a typical case. Land was sold to the defendant by the plaintiff, both parties believing that there was valuable timber on the land. Actually, the land had been denuded some time before. On learning the truth, the defendant refused to complete the contract; the plaintiff brought action to recover the purchase price; recovery was not allowed. The court said: "The mistake * * * * was occasioned by the ignorance of both parties of a fact under the influence of which they entered into a contract that would not have been executed had they possessed full knowledge of the situation." The rule has also been applied to contracts in respect to insurance policies after the death of the insured, where all parties supposed that he was still alive."

Confusion has arisen between cases of the sort considered above, and cases where the mistake has been with regard to a non-material quality. A case where the mistake was of the latter sort is Wheat v. Cross.io A horse was sold to the defendant, both vendor and vendee believing the horse to be sound. The defendant later learned that the horse was sick, and refused to take it at any price; he was held

*At p. 577.

Other cases of sales illustrate the rule. In Harvey v. Harris, 112 Mass. 32 (1873), there was an auction sale of damaged flour of two grades, "original packages" and "repacked," the whole being arranged in tiers or lots; the plaintiff bought lots 9 and 10, both the plaintiff and the auctioneer believing that these lots consisted of repacked flour; really both lots were of flour in the original packages. The sale was held void; it is said by the court that the mistake was as to identity, but it seems quite clear that it was as to the existence of a material attribute. In Chapman v. Cole, 12 Gray (Mass.) 141 (1858), a gold piece worth ten dollars, issued by a private person in California, and passing current there at the value of ten dollars, was passed by mistake as a half dollar. It was held that the piece might be recovered by the first owner; since it was not money, the rules applicable to other chattels must be applied to it; and there had been a mistake as to identity avoiding the contract. Here also it would seem that the mistake was as to the existence of a material quality rather than identity. In Gompertz v. Bartlett, 2 El. & Bl. 849 (1853), it was held that where a bill of exchange was sold as a foreign bill, when contrary to the belief of both parties it was an inland bill and void for want of a stamp, the sale would be rescinded; it was said that the article was not of the kind which was sold.

Similar actions to rescind leases or sales have been allowed in the following cases: Mays v. Dwight, 82 Pa. 462 (1876), where there was believed to be an oil well on the land; Bluestone Coal Co. v. Bell, 38 W. Va. 297 (1893), where there was believed to be coal in the land; Irwin v. Wilson, 45 Ohio St. 426 (1887), where land was transferred in the belief that it was tillable; Miles v. Stevens, 3 Pa..21 (1846), where land was sold in the belief that there was a harbor on it; Hoops v. Fitzgerald, 204 Ill. 325 (1903), where premises were leased on condition that two stories should be added to the building, and it was later found that the walls were too weak to stand the extra weight; Muhlenberg v. Henning, 116 Pa. 138 (1887), where land was leased in the belief that it contained marketable iron ore.

'Riegel v. Am. Ins. Co., 153 Pa. 134 (1893); Scott v. Coulson, (1903) 2 Ch. Div. 249.

10 Supra, note I.

liable for breach of contract, on the ground that the mistake was as to a fact wholly collateral, not affecting the essence of the contract. The view of Wheat v. Cross was taken in the dissenting opinion in Sherwood v. Walker.

Another view is presented by two Wisconsin cases." In both these cases, bulls were sold for breeding purposes, and were later found to be useless for breeding. The sales were held valid, on the ground that there was no implied warranty that the animals would be fit for the purpose for which they were sold; the question of mistake seems not to have been considered; on principle, these cases do not seem to differ from Sherwood v. Walker.

Another distinction is made in Kowalke v. Milwaukee El. Ry. & L. Co., 12 where the plaintiff was injured on the defendant's railway; she gave a release, believing at the time that she was not pregnant, though in fact she was; she later suffered a miscarriage as the result of the injury. An action to avoid the release on the ground of mistake was decided against her, on the ground that both parties had in mind the possibility of pregnancy, that the release was made in conscious ignorance, and that the parties took their chances in giving and taking the release. In other words, the transaction had an element of speculation, and the plaintiff could not be heard to say that she had made a bad bargain.

As to the correct criterion in this class of mistake, there is some difference of statement. It has been suggested that "There is no mistake in the legal sense as to the qualities of the subject-matter unless both parties affirmatively attribute to it characteristics it does not possess. If they are simply ignorant of its real nature the contract stands."13 On this ground is distinguished the case in which a woman sold an uncut diamond for one dollar, both parties being in conscious ignorance of its real value; it was bought and sold as a stone. A later attempt to rescind the sale on the ground of mistake was defeated.1 Another authority has said that to avoid the contract, the mistake must be "such that according to the ordinary course of dealing and use of language the difference made by the absence of the quality wrongly supposed to exist amounts to a difference in kind" and "common to both parties."15 The question in every case of this sort should be "What was it with regard to which the parties contracted?" In Sherwood v. Walker, sterility was the material factor: a sterile cow was the contemplated subject matter; and it did not exist. In Wood v. Boynton, the subject matter was a stone, and the fact that the stone was worth more than was paid for it was merely collateral.

"White v. Stelloh, 74 Wis. 435 (1889); McQuaid v. Ross, 85 Wis. 492 (1893). 12103 Wis. 472 (1899). Accord, Seeley v. Cit. Tract. Co., 179 Pa. 334 (1897). 13Brantly, Contracts (2nd ed.), sec. 71.

14Wood v. Boynton, supra, note 1.

15It has been suggested that the test is whether there would have been any contract at all had the truth been known with regard to the mistaken quality. In Hoops v. Fitzgerald, supra, note 8, the court said, at page 331: "The vital question in this matter is, first, was there a mutual mistake as to the condition of the walls of the building; second, was such a mistake so material to the making of the contract, such an inducement to its execution,-that but for it the contract would not have been made."

Under either of these tests, however, it would seem that the principal case was rightly decided. The plaintiff was ignorant of the real nature of the soil; but the real nature of the soil was not the essential subject-matter of the contract. The mistake was really as to the difficulties of performance, but not as to the subject-matter, which was simply the driving of piles.

Richard H. Brown, '19.

Pleading: Variance: Proof of an express contract in an action upon an implied contract. In Scanlon v. John Gill & Sons Co., 166 N. Y. S. 742 (1917), the plaintiff brought an action for the reasonable value of work, labor and services rendered to the defendant at his special instance and request. The proof showed an express promise to pay the plaintiff the stipulated salary, with the defendant's breach. in failing to pay anything for certain months. The plaintiff recovered a sum in excess of the contract price. The court reduced the judgment to the contract price, holding that the quantum meruit was the agreed price, and that there was no variance between the allegations and the proof.

Conceding that under the common law system of pleading it was possible for the plaintiff to prove an express contract under the common counts, the courts have not always made it clear under which of the counts the proof was admissible. This has lead to some confusion of principles. It has often been said that where the contract has been fully performed on one side, and the only thing remaining was the payment of the money agreed upon by the other party, a recovery might be had for the contract price under the common counts. And yet it is everywhere admitted that the common counts declare upon implied promises.2 The reason why there is not a variance in such cases is largely historical. Before the development of the action of assumpsit, debt was the appropriate remedy for the recovery of money on an executed contract. In such an action, however, the defendant was enabled to escape payment by wager of law, that is, producing eleven jurors to swear that he was a truthful man, and in order to avoid this the law invented a fiction. If a debt had been created, whether by express contract or otherwise, it was said that the law would imply a promise to pay that debt, and the plaintiff was permitted to sue in the new action of assumpsit for the breach of that promise. Because the action in its origin was thought to sound in deceit, the defendant was not permitted to wage his law. It will be noted that where the debt was created as the result of an express promise the action was not based upon that promise, but upon

Felton v. Dickinson, 10 Mass. 287 (1813); Dermott v. Jones, 2 Wall. (U. S.) I (1864); Bank of Columbia v. Patterson's Adm'r., 7 Cranch (U. S.) 299 (1813); Combs v. Steele, 80 Ill. 101 (1875); Jewell v. Schroeppel, 4 Cow. (N. Y.) 564 (1825).

"Warbrooke v. Griffin, 2 Brownl. & G. (Eng.) 254 (1609); cases in note 1, supra. 'Speake v. Richards, Hob. (Eng.) 206 (1678); Rudder v. Price, 1 H. Bl. (Eng.) 547 (1791); Cases cited in Chitty on Pleading (2nd ed.), 101; 3 Bl. Com. (Lewis ed.) 1148.

'Gordon v. Martin, Fitz-G. (Eng.) 302 (1732); Warbrooke v. Griffin, supra, note 2; Slade's Case, Coke (Eng.) 92 (1603).

'Ames, History of Assumpsit, 2 Har. L. Rev. 16.