missioners, and assignees of bankrupts, solicitors to commissions of bankruptcy, auctioneers, creditors whe have been consulted as to the mode of sale, counsel, or any persons who, by being employed or concerned in the affairs of another, have acquired a knowledge of the state of his property, are incapable of entering into any contract for the purchase of such property for themselves, except under certain restrictions and limitations"; (x) and a purchase made under such circumstances will be set aside, even after it has been completed, and a reconveyance will be directed. (y) A trustee or an agent for sale cannot, under ordinary circumstances, become himself the purchaser of the property confided to him to sell. (z) An attorney cannot buy an estate of his client, unless he deals with him "at arm's length," through the intervention of another solicitor, from whom no necessary information is withheld, and who properly discharges his duty; (a) or unless he shows to demonstration that no industry on his part could have got a better bargain; (6) nor can an arbitrator purchase from the parties to the reference, nor a guardian from his ward, nor a trustee from his cestui que trust, unless the surrounding circumstances prove beyond all doubt that the transaction was perfectly fair and advantageous for the client,

cestui que trust, or other parties affected by it. (c) And although an attorney or agent can show that he is entitled to purchase, yet if, instead of openly purchasing, he purchases in the name of a trustee or agent, without disclosing the fact, such purchase cannot stand. (d) If the agent does purchase, the agency is dissolved, he comes forth as a principal, and can claim no commission or remuneration as agent. (e)

314. Duress. Any agreement made under improper pressure is voidable. Thus, where B discounted bills to which he had forged his father's signature, and the holders of the forgeries, working on the fears of the father for his son's safety, but without holding out any direct threat, or making any distinct promise not to prosecute, obtained from the father equitable security for the amount of the bills, it was held that the security was void. (ƒ) If a man pays money or gives securities to redeem his goods from the custody of the law, that is not a case of duress; nor can he recover back his money, or defend himself from proceedings taken to enforce the securities which he has paid or given under legal compulsion. (g) If a person, having been constrained by duress to make a contract, afterwards voluntarily acts upon it, he thereby affirms its validity, and loses the right of avoiding it. (h)1

(c) Cane v. Lord Allen, 2 Dow, 289. Dawson v. Massey, 1 Ball & Beat. 219. Lord Hardwicke v. Vernon, 4 Ves. 411; 14 Id. 504. 2 Sugd. Vend.

200.

(d) Lewis v. Hillman, 3 H. L. C.630. (e) Salomons v. Pender, 34 L. J., Ex. 95, 3 H. & C. 639.

(f) Williams v. Bayley, L. R., I H. L. 200; 35 L. J., Ch. 717.

(g) Liverpool Marine Credit Co. v. Hunter, L. R., 3 Ch. 487; 37 L. J., Ch. 386.

(h) Ormes v. Beadel, 2 De G. F. & J. 333; 30 L. J., Ch. 1.

'Knapp v. Hyde, 60 Barb. 80; Adams v. Reeves, 68 N. C. 134; Nickodemas v. East Saginaw, 25 Mich. 456; Miller v. Miller, 68 Pa. St. 486. To render a contract void because of threats it must appear that they were of a character to excite the reasonable apprehensions of a person of ordinary courage

315. Mistake.-Where one of the parties intends to make a contract on one set of terms, and the other intends to make a contract on another set of terms, or, as it is sometimes expressed, if the parties are not ad idem, and the terms have not been reduced into writing, there is no contract, unless the circumstances. are such as to preclude one of the parties from deny ing that he has agreed to the terms of the other. (¿) And even if the terms of the contract have been reduced into writing, and there is a latent ambiguity, and the parol evidence adduced to explain it shows that the parties were not of one mind, there is no contract. Thus, if two persons enter into an apparent contract concerning a particular person or ship, and it turns out that there are two persons or ships to which the description in the contract equally applies, and that each of the parties, misled by the similarity, had a different person or ship in his mind, no contract

(i) Scott v. Littledale, 8 E. & B. 815; 27 L. J., Q. B. 201.

(Bailey v. Shanner, 26 Ark. 280.) Lawful imprisonment is no duress (Steinbaker v. Wilson, 1 Pa. Leg. Gazette R. 76). But unlawful or improper imprisonment (Phelps v. Machlag, 34 Tex. 371), or menace of unlawful imprisonment might be (Alexander v. Pierce, 10 N. H. 494; Eddy v. Herrin, 17 Me. 338). Duress through threats of imprisonment is no defense to an action on a promissory note (Knapp v. Hyde, 60 Barb. 80). Owners of goods will not invalidate a contract. A threat to withhold payment of a debt, or to refuse performance of a contract, or to do an injury which may be at once redressed by legal process, is not a duress per minas (Miller v. Miller, 68 Pa. St. 486). Wrongfully taking and keeping goods of a perishable nature (such as oysters), and refusing to surrender them except upon payment of a larger sum than was actually due to the holder, is not duress. Spaids v. Barrett, 57 Ill. 289. And also, Preston v. Boston, 12 Pick. 7; Boston & Sandwich Glass Co. v. Boston, 4 Met. 181. Also Fulham v. Down, 6 Esp. 26, n.; Hills v. Street, 5 Bing. 37; Snowden v. Davis, I Taunton, 359.

exists between them. (k) Where a contract has been entered into upon the faith of a state of things which does not exist, () or where the defendant has made a mistake to which the plaintiff has by his acts contributed, even unintentionally, the contract will be rescinded, (m) provided the court can replace the parties in their original condition, (n) or specific performance will not be enforced. (o)1 Where the terms of the written instrument do not correctly represent the mind of the parties, the court will rectify it, provided the mistake is one of fact, (p) and common to both parties. (q)2

2

(k) Raffles v. Wichelhaus, 2 H. & C. 906; 33 L. J., Ex. 160.

(1) Emmerson's Case, L. R., 1 Ch. 433; 36 L. J., Ch. 177.

(m) Torrence v. Bolton, L. R., 14 Eq. 124; 41 L. J., Ch. 643.

(n) Emmerson's Case, L. R., 1 Ch. 433; 36 L. J., Ch. 177.

(0) Baskcomb v. Beckwith, L. R., 8 Eq. 100; 38 L. J., Ch. 536.

(p) Powell v. Smith, L. R., 14 Eq. 85; 41 L. J., Ch. 734.

(9) Harris v. Peppernall L. R., 5 Eq. 1.

'As to mistake, see Underhill v. Van Cortlandt, 2 Johns Ch. 339; Boston Water Power Co. v. Gray, 6 Met. 131. So sureties might be discharged by a mistake of fact (Morgan's De Colyar on Guaranty, &c., p. 445). The rule in the supreme court of the United States, and in the state of New York, appears to be that acts committed under a mistake of fact may be relieved against, but that acts done under a mistake of law, will not be on that account set aside (Hunt v. Rousmanier's Heirs, 1 Pet. (U. S.) 1; S. C., 8 Wheat. 174; Hebborn v. Dunlop, 1 Id. 179, 195; Shotwell v. Murray, 1 Johns. Ch. 512; Lyon v. Richmond, 2 Id. 151; Storrs v. Barker, 6 Id. 166; Clark v. Dutcher, 9 Cow. 670). In Massachusetts the rule ap pears to be that, if a promise to pay money is made under a mistake of law, the promise cannot be enforcec, and if the money be actually paid thereunder, it may be recovered back. May v. Coffin, 4 Mass. 342; Warden v. Tucker, 7 Id. 452; Freeman v. Boynton, Id. 488; Haven v. Foster, 9 Pick. 112.

'See as to this, Gough v. Crane, 3 Md. Ch. Dec. 135; Philpott v. Elliott, 4 Id. 273; Hall v. Clagett, 2 Id. 151; Wood v. Patterson, 4 Id, 335; Northrop v. Graves, 19 Conn. 548; Culbreath v. Culbreath, 7 Ga. 64; McNaughton v. Patridge,

Where in the making of an agreement between two parties there has been a mutual mistake as to their rights occasioning an injury to one of them, the rule of equity is in favor of interfering to grant relief; and the court will not decline to do so merely because circumstances may have rendered it difficult to restore the parties exactly to their original condition and, although where the mistake arises from ignorance of a well-known rule of law, the court will not interfere, yet, where it arises upon a construction of a document of doubtful meaning, the doctrine of ignorantia juris neminem excusat will not apply, and the court will give relief. (r)1

Where the mistake is unilateral, and the party by whom it was made is the sufferer, relief will not be granted, unless there has been some undue influence, misrepresentation, surprise, or abuse of confidence. (s)

316. Failure of consideration.—When a contract is simply null and void, and not tainted with illegality, money paid by one of the contracting parties to the other may, in general, be recovered back on the ground of a failure of consideration. If a contract is made for the sale and purchase of railway scrip or

(2) Earl Beauchamp v. Winn, L. R., 6 H. L. 223, 224.

(s), Broughton v. Hutt, 3 De G. & J. 501. Bentley v. Mackay, 31 Beav.

143.

11 Ohio, 223; Ray v. Bank of Kentucky, 3 B. Mon. 510; Gratz v. Redd, 4 Id. 178; Northrop v. Graves, 19 Conn. 548; Bellows v. Stone, 14 N. H. 201; Coles v. Bowne, 10 Paige, 535; Hunt v. Rousmaniere, 1 Pet. 15; 8 Wheat. 211; Hepburn v. Dunlop, 10 Id. 179, 195; Shotwell v. Murray, 1 Johns. Ch. 512, 515; Lyon v. Richmond, 2 Id. 51; Storrs v. Barker, 6 Id. 169; Kenyon v. Welty, 20 Cal. 637; Millett v. Holt, 60 Me. 169; Worthington v. N. Y. Central R. R. Co., 6 Lans. 257; Vernon v. West School District, 38 Conn. 112; Lake v. Artisan's Bank, 3 Abb. N. Y. App. Dec. 10.