Court case(1864) 2 H & C 906

The seller agreed to sell the buyer 125 bales of Surat cotton "to arrive ex Peerless from Bombay". Two ships named Peerless sailed from Bombay that season, one in October and one in December. The buyer meant the October ship; the seller tendered cotton from the December ship. The buyer refused to accept and the seller sued for the price.

The Court of Exchequer gave judgment for the defendant buyer. The description "ex Peerless" was latently ambiguous, and parol evidence showed that the parties had meant different ships. As there was no consensus on the identity of the subject matter, there was no contract at all: the minds of the parties had never met on the same thing in the same sense.