The distinctions of the law are founded on experience, not on logic. It therefore does not make the dealings of men dependent on a mathematical accuracy. Whatever is promised, a man has a right to be paid for, if it is not given; but it does not follow that the absence of some insignificant detail will authorize him to throw up the contract, still less that it will prevent the formation of a contract, which is the matter now under consideration. The repugnant terms must both be very important,--so important that the court thinks that, if either is omitted, the contract would be different in substance from that which the words of the parties seemed to express. A term which refers directly to an identification by the senses has always this degree of importance. If a promise is made to sell this cow, or this mackerel, to this man, whatever else may be stricken from the contract, it can never be enforced except touching this object and by this man. If this barrel of salt is fraudulently sold for a barrel of mackerel, the buyer may perhaps elect to take this barrel of salt if he chooses, but he cannot elect to take another barrel of mackerel. If the seller is introduced by the name B, and the buyer supposes him to be another person of the same name, and under that impression delivers his written promise to buy of B, the B to whom the writing is delivered is the contractee, if any one is, and, notwithstanding what has been said of the use of proper names, I should suppose [313] a contract would be made. /1/ For it is further to be said that, so far as by one of the terms of a contract the thing promised or the promisee is identified by sight and hearing, that term so far preponderates over all others that it is very rare for the failure of any other element of description to prevent the making of a contract. /2/ The most obvious of seeming exceptions is where the object not in fact so identified, but only its covering or wrapper. Of course the performance of a promise may be made conditional on all the terms stipulated from the other side being complied with, but conditions attaching to performance can never come into consideration until a contract has been made, and so far the question has been touching the existence of a contract in the first instance.