On Motion for Rehearing.
It is insisted that the conclusion reached ty us that appellant had no right to complain because of the falsity of the recital in his guaranty of the payment by Crites of the second of the two Siebold $500 notes that the first one had been paid was erroneous and in conflict with the conclusion reached by other courts in a number of eases cited in the motion, presenting, appellant contends, a similar state of facts. Of the cases so cited GBlaney v. Rogers, 174 Mass. 277, 54 N. E. 561, seems to be most relied upon as being directly in point on its facts. There a recovery, it seems, was sought against a surety on a bond prepared by the plaintiffs’ attorneys for a breach of an undertaking on the part of the principal that certain buildings recited to be in process of construction upon certain lots “should be finished in good and workmanlike manner.” The plaintiffs at the time the bond was prepared by their attorneys and the surety at the time it executed the bond, relying upon the recital, supposed buildings were being erected upon the lots, -but as a matter of fact there were no buildings in process of construction upon same. The court held that the surety was not bound by the recital in the bond, and therefore was not liable, because the recital “was induced by a mutual mistake of fact without any (fault or negligence on the part of the” surety. It will be noted that the mistake of the parties in that case was with reference to an essential element of their contract; that is, its subject-matter, to wit, buildings they supposed to be in process of erection on the lots. It is well settled that, except in cases where the uncertainty of the existence of the thing is the essence of the agreement, a mutual mistake' of the parties as to the existence of the subject-matter of their contract will invalidate it. 20 A. & E. Ency. Law, 813; 1 Page on 'Contracts, §§ 60, 71. Here the mistake was not with reference to an essential element of .the contract of guaranty, but was with reference to a "matter collateral to it. The note appellant undertook to guarantee that Crites would pay was in existence and was a valid and subsisting charge against the lot, as the parties supposed it to be. The matter about which they w^re mistaken was as to the payment of the other $500 note — a thing collateral to the one they contracted about. It is well settled that in such a case the mistake does not invalidate the contract. “Whatever may be thought,” says Mr. Page, “of the propriety from a' moral standpoint of holding a person to a contract into which he entered under a mistake as to a collateral material fact, the law is confronted with the necessity of adopting a rule which will make it possible to enforce contracts at all. Accordingly the rule adopted by the great weight of authority is that mere mistake in the inducement is not operative, and that a contract induced by reason thereof is perfectly enforceable and valid. A mistake of this sort is an error for which the law furnishes no relief.” 1 Page on Contracts, § 155.
The motion is overruled.