P contracted to sell corn to D but the corn deteriorated and was sold before the date of the sale and D refused to pay. P sued for the money, claiming that D had really bought the rights from the shipping documents so that any loss to the corn would be the risk of D, not P. HL found for D, saying that (1) the document was for the sale of the corn itself and (2) the risk of mistake as to the existence of the document would go with the seller and (3) the non-existence of the corn meant that there was no consideration.
Lord Cairns: Where there is nothing to be sold, D cannot be compelled to pay for the thing that doesn’t exist. Smith: This doesn’t say whether he means there is no contract or whether the contract does exist but that P has not performed.
