a title in the plaintiff, and a full right to convey what he 1819. agreed to convey.

Philadelphia. 5. The Court is not bound to charge the jury on points. BELLAS suddenly proposed on the close of a trial, without opportunity of argument or reflection.

6. Want of consideration is not put in issue by the pleadings: the whole matter rested on the allegation of fraud. The sale of an article, does not imply a warranty by the vendor, of its usefulness or goodness, unless there be an express undertaking.

7. The question of the tender being in a practicable time, was proper to be left to the jury. It is a mixed question of

law and of fact.

8. As to the Court restricting the jury to two points, they charged on other points.

9. This admits of the same answer as to the 7th point.

The opinion of the Court was delivered by

GIBSON J. Some of the errors assigned in respect of the charge, involve principles exactly the same as some which arise on the bills of exceptions to evidence. Without examining these in detail, I shall consider the principles of law on which they depend; and in doing so, I shall inquire whether the contract was originally binding on Bellas, and whether if it were, Hays could support this suit, under all the circumstances of the case, and particularly under the present form of the declaration. I will then consider one or two exceptions that belong to no particular class.

To the original obligatory effect of the contract, it is objected, that it does not appear that Clark had authority; and even if he had, that he ought to have sealed the instrument, not in his own name, but as the attorney of Hays; without which the latter could not be bound, and consequently that neither is bound.

Every authority of this kind, must be by deed, that it may appear, whether the attorney had a valid commission, and whether it were duly pursued. Co. Lit. 48. b. There was no evidence of the existence of a letter of attorney to Clark, and what operation the want of it ought to have on the obligatory effect of the contract, was directly made a question for the opinion of the Court. On this ground then, it is plain, Hays was not bound by the contract; but I take it,

v.

HAYS.

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BELLAS

υ.

HAYS.

the articles were nevertheless admissible evidence on the isPhiladelphia. sue of non est factum; for being in any event the deed of Bellas, they went to support the issue on the part of the plaintiff, who, being bound to no particular order of proof, might, if he pleased, give the articles of agreement in evidence first, and offer the letter of attorney afterwards. The first bill of exceptions is, therefore, not sustained. Then as to the other ground; the article of agreement purports, on its face, to be made between Hays, the plaintiff, by his agent Clark, and the defendant; but it is signed and sealed by the two last only, and not by Hays. It is clear beyond dispute, this was not a good execution of the authority, if any existed. Comb's case, 9 Rep. 76. b, is express, that the act must be done in the name of the principal, and sealing being an essential part of the execution of a deed, the seal of the person giving the authority must be affixed. In 3 Vin. Ab. Authority, F. pl. 4, there is a case exactly like the present. The king authorised a certain surveyor to make leases, who executed the power by deeds, beginning as in the case before us, as if the principal were a party, and concluding, “in witness whereof the said surveyor hath put his seal :" and it was held, he ought to have put, not his own seal merely, but that of the king. But the counsel for the plaintiff, relies on evidence of acts of confirmation, by both parties treating these articles as obligatory on Hays. But can any confirmation short of putting his seal to it, make the writing the deed of Hays, so as to give Bellas a remedy at law on it as such? An imperfect specialty contract may be so ratified by parol, as to give an action of assumpsit; but here, mutuality of remedy on the same instrument is the essential matter. On both grounds then, I think Hays was not bound. It does not follow however, that in every case, neither will be bound if both are not: for covenant may be maintained on a deed poll. The true distinction appears to be taken in Northcott v. Underhill, 1 Ld. Raym. 388, where it is laid down, that relative covenants are void, whenever the matters to which they relate, and on which they depend, cannot by the deed take effect. It was the case of a mortgage, with a covenant in the same instrument to pay the money, and the deed for want of enrolment being insufficient to pass an estate in the land, it was argued the covenant was therefore void; but as it was separate and independent, it was held, it might well

1819.

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HAYS.

stand by itself. But in Fromentin v. Small, 2 Ld. Raym. 1418, the case was very like the present. The plaintiff was Philadelphia, the attorney of James Fromentin, and in his name, and as BELLAS his attorney, demised a house to the defendant, who covenanted to pay the rent. In an action of covenant, in which non payment of the rent was assigned as a breach, there was a demurrer; and it was admitted by counsel, and denied by nobody, that James Fromentin the principal, could not have maintained covenant on the lease, because he was no party to the deed; and it was adjudged by the Court, the action would not lie even in the name of the attorney, who was a party, because the lease being void, the covenant to pay the rent, was also void. Where however, the covenants are independent, either party may sue without regard to the validity of the covenants on the part of the other. Now in the case under consideration, payment of the purchase money was entirely dependant on the conveyance of the right; insomuch, that the latter was expressly made a condition precedent. By the articles, Hays was bound to nothing, and Bellas ought not to be bound or discharged as Hays might choose to consider him. As then the articles of agreement created no responsibility, and were altogether inoperative, the direction of the Court was, in this particular, wrong, and the judgment must be reversed.

The point just disposed of being decisive against the plaintiff's right, it would be unnecessary to pursue the inquiry further, were it not that an act of assembly renders it the duty of this Court, to pronounce an opinion on every point decided by the Court below. The defendant contends the contract was void on the ground of want of consideration also, because he gave evidence to affect the validity of the patent right contracted for, and also to shew the invention was not valuable. Of this the Judge took no further notice, than as it might be evidence of actual fraud, on which alone, he, as to this part of the cause, put the inquiry to the jury; and this he did without deciding on the validity of the respective patents. I do not consider the evidence so important on the ground of want of consideration as misconcep tion by the parties, of the existence of a fact: although I agree, that where the consideration is an equivalent for the obligation which the other party incurs, failure of it is a good ground for relief. But I choose to consider the case

1819. on the ground of mistake, which is perhaps not very difPhiladelphia. ferent from want of consideration. At first view there

BELLAS

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appears to be some contradiction in the cases on the subject. In several, mistake only, without suppression of the truth or suggestion of a falsehood, has been held insufficient to set aside the agreement, as in Can v. Can, 1 P. Wms. 723. So in Pullen v. Ready, 2 Atk. 587, Lord HARDWICKE says, "there is nothing more mischievous than for this Court to decree a forfeiture after an agreement, in which, if there is any mistake, it is the mistake of all the parties to the articles, and no one of them is more under an imposition than the others." It will be found, however, this doctrine is applicable only to cases where the right or thing, which is the subject of the contract, is evidently of itself doubtful, which is a circumstance always sufficient to support an agreement, if no unfair advantage be taken in other respects. In such case, the assent of the parties to treat on the subject as it then stood being complete and full, they proceed on an evident supposition, that the fact which is the cause of the agreement is doubtful, and each is understood to take on himself the risk of its turning out in a way favourable to him. On this principle, every wager and every contract of insurance depend; and without it there could be no such thing as a compromise of a doubtful right. Where a particular fact is known to be doubtful, or supposed to be so, if the party to be benefited neglect to secure himself by a covenant, he will be without remedy, if it turn out contrary to his expectations, for he will be considered as having paid his money for the benefit of a chance. It would seem to me, that whether the invention which is the subject of the plaintiff's patent were valuable or not, was in its nature doubtful, and that the defendant took the risk of that matter on himself; but the validity of the right, on the ground of originality of invention, is another matter of which I will speak hereafter. The cases of this kind, to be found in the books mostly relate to agreements, the intention of which was to settle family disputes, which is a favourite object with courts of chancery; yet even there it is held, the parties must be acquainted with their rights as far as they can be ascertained, or at least with the nature and extent of the information that can be obtained respecting them, which in the absence of fraud is going pretty far. Pusey v. Disbouverie, 3 P. Wms.

V.

HATS,

316. There is however another class of cases where an 1819. agreement entered into on an erroneous presumption by one Philadelphia. of the parties of the existence of a fact, is held to be as to BELLAS him of no force, for he gave his assent to the agreement, not absolutely, but on conditions which are not verified by the event: and it will be immaterial, whether all parties were equally ignorant or not; for if there was any concealment of a fact within the knowledge of the opposite party, that of itself constitutes fraud, which is a distinct ground of relief." Thus in Cocking v. Pratt, 1 Ves. 400, an intestate's widow and daughter entered into an agreement as to the personal estate: the daughter married and died: the husband brought a bill to be relieved against the agreement, on the ground of mistake on the part of his wife as to the value of her share. Sir John Strange, in the absence of the chancellor, observed, that whether there had been suppressio veri, was not clear on the evidence, but that there was another foundation to interpose, to wit, that it afterwards appeared the personal estate was greater than the daughter supposed, and that the husband would be permitted to come into chancery to take advantage of her want of knowledge. So in Lansdown v. Lansdown, Mosely, 364, where two brothers claiming an estate applied to a country schoolmaster, who, (as was to be expected,) ignorantly gave it in favour of the younger, because he had read in the clerks' remembrancer that lands cannot ascend, and thereupon the eldest having consented to divide the land, saying he would rather do so than go to law even if he had the right, and having created deeds of lease and release, these were decreed to be delivered up, although there was nothing like concealment, or exclusive knowledge of a fact or any thing else, imputable to any one. There are many other cases to the same purpose. Turner v. Turner, 2 Ch. Rep. 11. Bingham v. Bingham, 1 Ves. 126. Spencer, 1 Vern. 32, and Luxford's case there cited. If then the patent right of Bernard were invalid, there can be little doubt the defendant would not be bound by the contract; for it is out of all reason to suppose he purchased the right under any other notion than that of its being a valid one. Yet I confess I cannot see how, on the present state of the pleadings, he could take advantage of the defect; for, according to the decision of this Court in Jordan v. Cooper, 3 Serg. & Rawle, VOL. V.3 K