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Corbin on Contracts

Copyright 2007, Matthew Bender & Company, Inc., a member of the LexisNexis Group.

PART I FORMATION OF CONTRACTS

TOPIC A OFFER AND ACCEPTANCE

Supp. To CHAPTER 4 INDEFINITENESS AND MISTAKE IN EXPRESSION

1-4 Corbin on Contracts Supp. to § 4.13

Supp. to § 4.13 Mutual Assent-''Meeting of the Minds''

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(A) The following cases cite this section or its predecessor, § 107:

(1) Stewart v. Professional Computer Centers, Inc., 148 F.3d 937 (8th Cir. 1998) . Stewart sued Professional for sex and age discrimination. Professional made Stewart an offer that upon acceptance judgment would be entered ''against Defendant in the amount of FOUR THOUSAND FIVE HUNDRED AND No/100 DOLLARS ($4,500.00) as provided in Rule 68.'' Stewart asked Professional to clarify what was included in the offer. Professional provided a fuller statement, that ''judgment be entered on any or all counts against Defendant in a total amount not to exceed FOUR THOUSAND FIVE HUNDRED AND No/100 DOLLARS ($4,500.00) as provided in Rule 68.'' Stewart's complaint asked for the ''costs and expenses of this action, including reasonable attorney's fees.'' Stewart accepted Professional's clarified offer, and on the same day notified it that she would be seeking attorney fees. She then moved for attorney fees. A magistrate judge granted the motion.

Professional appealed on the ground that its lump sum offer was intended to cover everything sought in the complaint. Professional argued that its offer was clear and that if Stewart had not understood that its offer included fees, there was no meeting of the minds to create a binding agreement. The Eighth Circuit found that Stewart interpreted the offer to permit her to seek fees in addition to the offer of judgment. Hence, the court held, no mutual assent was shown to the same terms, and no valid offer and acceptance under Rule 68.

But why should Stewart not be held to her acceptance of Professional's offer? She asked for clarification of the initial offer and got it. The clarification could not have been clearer: the offer covered ''any or all counts against'' Professional, and Stewart's counts clearly included fees. If Stewart was unsure about this, she could have asked for further clarification. A reasonable person in Stewart's position would have understood that Professional's offer included attorney fees. A perfect case for the objective theory of contracts.

(2) Frank v. 84 Components Co., 2002 U.S. Dist. LEXIS 11218 (S.D. Ind. June 18, 2002) . Frank's first employment contract with the defendant contained an arbitration clause. Her employment was terminated in May but she was rehired in August at which time she did not execute another employment agreement containing an arbitration clause. In December, she was again terminated and brought an action alleging a violation of Title VII of the Civil Rights Act. The defendant moved to stay the judicial proceeding on the footing that Frank was bound by the arbitration agreement she had signed at the time of her first employment with the defendant. Though Frank had not signed another arbitration agreement during her second employment, the defendant presented an affidavit of its human resources director stating that it was the intention of the company that the original application applied to all subsequent periods of employment by the applicant and that this intention was reflected in its policy of not requiring an employee to sign a new application upon rehire if the periods of employment were less than two years apart.

Corbin was cited in support of the principle that, in ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter. There was no evidence that the defendant communicated its subjective intention to the plaintiff. A factually similar case from the Seventh Circuit, Matterhorn, Inc. v. NCR Corp., 763 F.2d 866 (7th Cir. 1985) , reached the same result though it was based upon an examination of the parties' prior course of dealing, from which the court was unable to infer that the parties had intended the arbitration clause in their initial contract to govern disputes arising out of the alleged attempt to supersede that contract. The district court denied the motion to stay pending arbitration.

(3) Acinapura v. Natalizia, 2003 R.I. Super. LEXIS 98 (R.I. Super. Ct. July 30, 2003) . Where the parties' agreement for the purchase and sale of a controlling interest in the plaintiff's publications failed to manifest assent to essential terms, the court cited Corbin in holding that the absence of objective manifestations of mutual assent precluded the finding that a contract was formed.

This case is also discussed at §§ 4.1 and 4.7.

(4) 02 Micro International, Ltd., et al. v. Monolithic Power Systems, Inc., 467 F.3d 1355, 2006 U.S. App. LEXIS 28256 (Fed. Cir. 2006) . The plaintiffs motion to amend their patent infringement contentions was denied by the district court on the footing that the plaintiffs' three month delay constituted a lack of diligence. On appeal, the plaintiffs argued that ongoing negotiations for a stipulation to joint amendments of infringement and invalidity contentions justified their delay. The Court of Appeals reasoned that if there had been an enforceable agreement between the parties, this likely would have satisfied the diligence requirements. However, citing Corbin, the Court of Appeals found that the letters between the parties reflected offers and counter-offers, and that these letters did not constitute ''a meeting of the minds'' required for an enforceable agreement. Thus, the Court of Appeals held that the district court did not err in concluding that the mere existence of good faith negotiations over a possible stipulation was insufficient to excuse plaintiffs' delay.

(5) Nortek, Inc., et al. v. Liberty Mutual Insurance Company, 65 Mass. App. Ct. 764, 843 N.E. 2d 706 (Mass. 2006) . The underlying dispute concerned the plaintiffs' obligations to pay retrospective premiums on certain insurance polices issued by the defendant. The case progressed toward trial, and the plaintiffs filed an offer of judgment under the Massachusetts Rules of Civil Procedure, offering to allow judgment to be entered in favor of defendant in the amount of $530,847 in full satisfaction of the defendant's counterclaims. Thereafter, the defendant filed its notice of acceptance of the offer of judgment and requested entry of judgment in accordance with it. The defendant then moved for summary judgment against plaintiff Nortek on the grounds that its claims were barred by the statue of limitations, which was granted. Nortek moved unsuccessfully to withdraw its offer of judgment and, after final judgment was entered, moved unsuccessfully for relief from the judgment. On appeal, the court noted that no Massachusetts case had considered whether an offeror may seek to rescind or withdraw an offer of judgment after it has been accepted. However, the court explained that ''[i]n general, principals of contract law apply to determine the terms and effect of offers of judgment under Rule 68 [the pertinent rule].'' Quoting Corbin, the court further explained that '' '[u]nder basic contract law principles, for an offer and acceptance to create a binding agreement there must be an objective manifestation of mutual assent.' '' The plaintiffs contended that their offer of judgment which was accepted without qualification or condition did not create a binding agreement for judgment because they intended it to resolve only certain premium claims which were beyond the subject of defendant's counterclaims, and it was the result of a partial agreement reached in settlement negotiations with the defendant. The court explained, however, that ''the most significant difficulty with the plaintiffs' contention was [that the offer of judgment did] not say any such thing or contain any ambiguity concerning its scope and purpose as would allow consideration of extrinsic evidence in construing its terms... . It is the language the plaintiffs used in their offer, and not their undisclosed subjective intent, that determines its meaning.'' Thus, the order denying plaintiffs' post judgment motion for relief was affirmed.

(B) The following cases are noteworthy:

(1) Colfax Envelope Corp. v. Local No. 458-3M, 20 F.3d 750, 145 L.R.R.M. 2974 (7th Cir. 1994) . Judge Posner describes the issue this way:

This appeal in a suit over a collective bargaining agreement presents a fundamental issue of contract law, that of drawing the line between an ambiguous contract, requiring interpretation, and a contract that, because it cannot be said to represent the agreement of the parties at all, cannot be interpreted, can only be rescinded and the parties left to go their own ways.

20 F.3d at 751 . Maybe so.

Colfax made envelopes, and printed some in its own shop. The seventeen employees who did the printing were represented by Local No. 458-3M. Colfax never bothered to participate in negotiations for a collective bargaining agreement between the union and the employers' group, the Chicago Lithographers Association, since it had so few printing employees. Instead, the union sent Colfax summaries of changes to the old agreements. If Colfax told the union that it was content with the changes, the union sent it a copy of the new agreement, which Colfax signed and returned. If Colfax was not content, it was free to do its own bargaining with the union.

In 1991 the union changed the way it dealt with Colfax. It sent a summary of the changes in the new agreement, and a letter asking Colfax to indicate whether it agreed to the terms in the summary. (Judge Posner notes that neither party made much of the union's change in practice in the ensuing litigation; maybe they should have.) Colfax's president and majority shareholder, Charles Patten, signed the letter, signifying acceptance of the terms in the summary. One term, which Patten understood one way and the union another, caused all the trouble.

In a section on manning requirements, the union's summary listed ''4C 60'' Press-3 Men'' and ''5C 78'' Press-4 Men.'' ''4C 60'' Press'' refers to a four-color press printing sheets 60 inches wide, and ''5C 78'' Press'' to a five-color press printing sheets 78 inches wide. The marks on the summary thus indicated that four-color presses printing sheets 60 inches wide would henceforth be manned by three men, and five-color presses printing sheets 78 inches wide by four men.

Before 1991, the collective bargaining agreement had fixed the minimum manning requirements as three men for four-color presses printing sheets 45 to 50 inches wide and four men for four-color presses printing sheets wider than 50 inches. Five-color presses printing sheets more than 55 inches wide had required five men according to the old agreement, but only four men if only four colors were printed.

Colfax had 78 inch presses, which up until 1991 it had to man with five men, except on the rare occasions when it printed only four colors, when it had to man its presses with only four men. This was the situation when the union's summary came in the door.

Patten thought that the marks in the section on manning requirements meant that Colfax now had to use only four men instead of five when it printed five colors, and only three men instead of four when it printed four colors. In other words, Patten interpreted ''4C 60'' Press-3 Men'' as applying to all presses printing sheets more than 60 inches wide, so long as they printed only four colors. Patten had reason to hold this interpretation, since union members who claimed to be familiar with the new agreement told Colfax that it would really like the changes.

But the union meant otherwise. ''4C 60'' Press-3 Men,'' they said, applied only to presses printing sheets up to 60 inches wide, not more than 60 inches, as Patten had assumed. Nonetheless, the union sent an actual agreement to Colfax that contained a typo, confirming Patten's understanding of the marks in the summary. They then sent Colfax a corrected copy of the agreement, setting forth the union's understanding of the marks: four-color presses between 45 and 60 inches required three men, but four-color presses over 60 inches required four men. Patten wouldn't sign. The union said he had to.

Colfax sued under § 301 of the Taft-Hartley Act for a declaration that it has no collective bargaining contract with the union because the parties never agreed on an essential term, the manning requirements for Colfax's presses. The union counterclaimed for enforcement of the arbitration provision of the collective bargaining agreement.

The district judge granted summary judgment to compel arbitration on the ground that the summary was unambiguous. The 60'' designation, she said, unambiguously refers to 60 inches, not to a range above or below 60 inches, and the arbitration clause unambiguously commits Colfax to arbitration of any dispute about the meaning of any disputed terms.

The Seventh Circuit affirmed, with a caveat. Judge Posner pointed out that the district judge's conclusion, that the disputed term unambiguously refers to 60 inches, not more not less, was not the position of either party to the litigation, certainly not Colfax's (that the disputed term refers to a range above 60 inches), nor the union's (that the designation indicates a range below). In any case, the district judge's conclusion, Judge Posner said, does not bind the arbitrator:

His is the responsibility, subject to the excruciatingly limited right of judicial review of arbitral decisions, to interpret the agreement. It will therefore be open to Colfax to argue to the arbitrator that, under a proper interpretation of the contract, there really was no meeting of the minds over the manning requirements and therefore that the contract should be rescinded after all. The only essential point at this stage of the litigation is that whether or not there was (as we believe, without meaning to bind the arbitrator) such a meeting of minds, there was sufficient mutual understanding to create an enforceable contract to submit the issue to arbitration.

20 F.3d at 755 .

Judge Posner's conclusion is striking: the arbitrator could find that there ''really was no meeting of the minds over the manning requirements and therefore that the contract should be rescinded,'' even though the district judge had referred the matter to the arbitrator only because she found that there had been a meeting of the minds. He reached it from two quite different directions.

Judge Posner started first from what he described as the ''strained'' premise that a ''meeting of the minds'' is required for a binding contract. Most contract disputes, he said, arise because the parties did not foresee and provide for a contingency that has now materialized. Yet courts treat such disputes as ones over contractual meaning, not as grounds for rescission. ''So a literal meeting of the minds is not required for an enforceable contract, which is fortunate, since courts are not renowned as mind readers.'' 20 F.3d at 752 .

Judge Posner then lucidly summarized the real doctrines signified by ''meeting of the minds.'' A contract ought to be terminable when there is ''no sensible basis for choosing between conflicting understandings'' of the contract's language (quoting Oswald v. Allen, 417 F.2d 43, 45 (2d Cir. 1969) ). If neither party is to blame for the misunderstanding, there is no nonarbitrary basis for deciding which understanding to enforce. The clearest cases for rescission, Judge Posner went on to say, are the ones in which an offer is garbled in transmission. This case, he said, is superficially similar. But the difference lies in a further doctrine:

... Colfax, unlike the hapless promisors in the cases we have cited, should have realized that the contract was unclear... . Colfax, if reasonable, could not have doubted from reading the summary that interpretations of the kind that the union and the district judge later placed upon it would be entirely plausible. Colfax had a right to hope that its interpretation would prevail but it had no right to accept the offer constituted by the summary on the premise that either its interpretation was correct or it could walk away from the contract. ''Heads I win, tails you lose,'' is not the spirit that animates the principle that latent ambiguity is a ground for rescission of a contract... . [Colfax] threw the dice, and lost, and that is the end of the case.

20 F.3d at 753-54 . Since the parties have a contract and the contract includes a valid arbitration provision, the court must order arbitration. Q.E.D.

Not quite. Judge Posner knew, of course, that this first direction does not take him to the goal of arming the arbitrator with a full panoply of remedies, including the remedy of rescission. Indeed, that direction arrives at the opposite goal, as Judge McDade pointed out in his concurrence. Hence, Judge Posner approached the goal from a second direction. ''Even if,'' he continued,

... there was no ''meeting of the minds'' (in the artificial sense in which the law of contracts uses the term) on the manning requirements in the 1991 agreement, there was a meeting of the minds on the mode of arbitrating disputes between the parties arising from any collective bargaining contract ... that Colfax signed... . A different view would in many cases deprive the arbitrator of an important contract remedy-rescission.

20 F.3d at 755 . And this Judge Posner would not do.

In his concurrence, Judge McDade agreed with Judge Posner that the dispute between Colfax and the union ought to be submitted to arbitration, but disagreed that the arbitrator should be free to order rescission. ''The majority,'' he argued, ''cannot have it both ways.''

There either was a ''meeting of the minds'' and a contract formed, or there was not a ''meeting of the minds'' and therefore no contract between the parties. This court having decided the former, it is beyond the purview of the arbitrator's function to decide the existence of a contract-her function is to apply and interpret the contract.

Judge Cudahy, concurring as well, trenchantly characterized (and rejected) Judge McDade's position:

... [T]he court decides only whether a contract exists. Interpreting the contract is the arbitrator's task. If no meeting of the minds literally means no contract, the arbitrator would not be at liberty ... to find there has been no meeting of the minds. If there were no meeting of the minds, Judge McDade argues, there would be no contract for it to arbitrate. The arbitrator-whose job is only to interpret-would have interpreted himself out of a job. Judge Posner avoids that catch-22 by seeing the doctrine [meeting of the minds] as metaphor. I am ultimately persuaded that this view is more suitable, and therefore agree with Judge Posner that the arbitrator could still find there to be no meeting of the minds, and therefore allow rescission and restitution.

20 F.3d at 757 . By ''metaphor'' Judge Cudahy means that,

where a court declares that there is no meeting of the minds, it is not really saying that there is no contractual relation between the parties, but simply declaring that it cannot discern a nonarbitrary way to decide whose interpretation is best. It therefore will not enforce either version, but will instead allow remedies of rescission and restitution, and send the parties their separate ways.

20 F.3d at 756 .

Colfax is a hard case, harder even than it seems. Suppose there had been no arbitration provision. The district judge's decision that there had been a meeting of the minds between the parties (which the Seventh Circuit clearly would affirm) would have stuck. Once the case goes to an arbitrator, however, rescission all of a sudden springs back to life. Why should the presence of an arbitration provision change the legal status of a district judge's decision?

Also, the majority treats the provisions of the contract as effectively severable (not their language). Was there a severability clause? The court doesn't say. May courts pick and choose among provisions of a contract-this one reflects a meeting of the minds, that one does not-when parties to the contract have not included a severability clause? Even if they had included a severability clause, if one party says, ''Look, I just don't think we had a contract,'' should even that clause be enforced? These questions are implicit in Judge McDade's concurrence.

Had the majority been somewhat more frank, they could have made a stronger case. Short of fraud, they could have said, once an employer signs up with a union (which is exactly what Patten did when he signed and returned the summary), it must take any dispute it has with the union to arbitration. Federal court simply isn't the place to resolve disputes over collective bargaining agreements.

Stepping back from the fray for a moment, we can see that, in situations like Colfax, contract doctrine does the job of jurisdictional allocation. That's fine, and contract doctrine gets the job done. The danger is that the special demands of jurisdictional allocation will reflect back on contract doctrine, confusing it in the future for its own peculiar tasks. That would be unfortunate.

Back to Judge Posner's characterization of the issue, quoted at the beginning of this note. Judge Posner might well have characterized the issue this way instead:

This appeal in a suit over a collective bargaining agreement presents a fundamental issue of management-union relations, that of drawing the line between a collective bargaining agreement that is so ambiguous that a court should not remit the parties to arbitration, and one that is sufficiently unambiguous that an arbitrator may clarify such ambiguities as may exist through interpretation.

(2) International Paper Co. v. Suwyn, 966 F. Supp. 246 (S.D.N.Y. 1997) (applying New York law). A noncompete provision restricted an employee's right to work for a ''major paper company'' but the meanings assigned to the phrase by the parties were different and were both reasonable. The employee understood it to mean the employer's largest paper competitors while the employer understood it to mean all companies in the paper and forest products industry generally. This reasonable difference in the attached meanings of a key provision of the agreement meant that no enforceable agreement had been reached. This case is also noted in § 4.10.

(3) Boise Cascade Corp. v. Reliance Nat'l Indem. Co., 129 F. Supp. 2d 41 (D. Me. 2001) . This case was a breach of contract dispute in which the plaintiff alleged that it should have been named as an additional insured on the defendant's policy and indemnified in an underlying personal injury litigation. The court found that the defendant's price quotation was not an offer, but instead an invitation to offer or the initiation of negotiation. The court reasoned that under some circumstances an estimate can serve as an offer and can thus create in the recipient the power of acceptance, but that in order to treat an estimate as an offer, the language of the estimate, as well as the context of the estimate in the negotiations between the parties, must be so definite as to constitute a clear meeting of the minds. Whether a price quote may be considered an offer in any given case is a question of fact dependent on the nature of the particular acts or conduct and the attendant circumstances.

On the issue of whether the counter-claim plaintiff's standard terms, which were included in the price quotation, became part of the contract, and citing this section of Corbin, the court held that there must be a finding of mutual assent, the modern day equivalent of the ''meeting of the minds.'' To be effective, mutual assent must be based upon an objective manifestation of intent, not subjective expressions. The court concluded that by a representative's signature, the counter-claim plaintiff expressed its intention to be bound by the plaintiff's standard terms. Thus, the court held that the plaintiff's standard terms governed the contract, resulting in the plaintiff becoming an additional insured under the counter-claim plaintiff's policy with the defendant. Accordingly, once the contract providing for the plaintiff to be named as an additional insured was executed, the defendant had a duty to insure the plaintiff.

(4) Turner Marine Fleeting, Inc. v. Quality Fab & Mech., Inc., 2002 U.S. Dist. LEXIS 24258 (E.D. La. Dec. 12, 2002) . An employee of Turner (d/b/a Pelican) was injured on a Pelican vessel. Pelican entered into a settlement with the employee which included an assignment of the employee's rights against Quality Fab and ZF industries, who were potentially liable. Pelican entered settlement negotiations with Quality and ZF which produced three letters on which Pelican relied in asserting that a contract of settlement had been reached. The plaintiff sought summary judgment that a contract had been concluded and the defendants sought summary judgment that no contract had been formed. The court held that whether the parties intended to form a contract is generally a question of fact. Where, however, written documents are purported to embody the contract, whether a contract was formed is primarily a question of law for the court to decide. The court found no unconditional agreement to the terms of the settlement in the first letter. The second letter indicated that the parties were moving toward a settlement, but certain aspects remained outstanding, and the third letter similarly indicated that the negotiations had not be finalized. Referring to the Restatement (Second) of Contracts, § 27, the court concluded that a contract is formed only if the parties have explicitly agreed that certain provisions will be included in the contract and no others. The court denied the plaintiff's motion for summary judgment while granting the defendant's motion that no contract had yet been formed.

Supplement to Notes in Main Volume

2. Fla.- State v. Family Bank of Hallandale, 623 So. 2d 474 (Fla. 1993) , appeal after remand, 667 So. 2d 257 (Fla. App.) . A bank that took possession of state-issued warrants from a third party since bankrupted asserted that the state had waived sovereign immunity in connection with its claim for prejudgment interest on the warrants. Held: although the State was the maker of the instrument, there was no contract between the State and the bank because there was no mutual assent and therefore no meeting of the minds.

Ill.- Berntson v. Cheney, 815 F. Supp. 1145 (N.D. Ill. 1993) (plaintiff agreed to settle lawsuit with government for $1,500 but was unaware that the government had agreed to pay only $1,000 of that amount and her own attorney was going to pay the other $500; held: no valid contract).

Ohio- Kotyk v. Rebovich, 87 Ohio App. 3d 116, 621 N.E.2d 897 (1993) . Former altar boy alleging he was sodomized by parish pastor signed agreement with the church diocese requiring the diocese to remove the priest from pastorship and to ensure the priest received counseling regarding the alleged incidents. The diocese removed the priest as pastor but later reinstated him and the former altar boy sued the diocese and the priest, later entering into a settlement with the diocese. In the lawsuit against the priest, held: the diocese and the church were bound by the agreement but not the priest because he had not agreed to the contract and therefore there was no meeting of the minds between the priest and the former altar boy.

3. N.H.- Fleet Bank, NH v. Christy's Table, Inc., 141 N.H. 285, 681 A.2d 646 (1996) (signature of parents of a co-adventurer in a corporate borrowing on a guarantee dated the same date as the loan held liable despite their denial that they knowingly signed it and their efforts-quite thin indeed-to support that denial).

Volpe v. Medical College of Ohio, 2005 Ohio Misc. LEXIS 519 . The plaintiff, a cardiovascular surgical assistant, was a ''contingent'' employee of the defendant with no set work schedule and without any health care benefits. He was originally hired to work every third weekend per month to relieve full time employees who alternated weekend duties. When a licensed physician assistant (Ludlow) was called to military service, the plaintiff agreed to work the full-time hours that Ludlow had worked. The plaintiff was desirous of a written contract and requested one from an administrator who provide a document captioned, ''Temporary Increase in Work Schedule'' which stated that the plaintiff would work the hours that Ludlow had worked and ''you will perform the duties as outlined in your present job as a cardiovascular surgical assistant.'' The employment would commence as soon as Ludlow left and would cease upon his return ''which potentially could be up to a two-year commitment.'' The plaintiff's ''contingent'' status would remain at the same rate of pay. While the plaintiff continued to perform under the direct supervision of the surgeon under whom he had previously worked, the defendant discovered that as a cardiovascular surgical assistant, he was not qualified to perform pre-operative and post-operative functions that Ludlow, as a physician assistant'' could perform outside the direct supervision of a physician. The hospital also discovered that only three states certified the kind of training the plaintiff had received and Ohio was not among them. The hospital terminated the plaintiff's services and the plaintiff brought this action for breach of contract. The plaintiff claimed that, upon receiving the document from the administrator, the administrator stated, ''This is a contract.'' The administrator denied making this statement. The plaintiff allegedly sought a written statement from the hospital for the purpose of proving his employment in the purchase of a house. The court found that the plaintiff's testimony in this regard was disingenuous and, in any event, the plaintiff should have sought a more appropriate person than a hospital administrator to provide evidence of a contract. The court held that no contract existed between the parties because there was no meeting of the minds or mutual assent.

The court's analysis concerning mutual assent is singular. Assuming the plaintiff's motivation in seeking written evidence of his agreement differed from his explanation of that motivation, the issue as to whether he had an enforceable contract remained. The relevant issue is whether the parties had, in fact, mutually assented to the terms of an agreement. The written evidence of the agreement expressly stated that the plaintiff would continue to perform his duties as a cardiovascular surgical assistant. While the court mentioned that the defendant had urged a mutual mistake analysis, the court avoided that analysis. The facts, however, clearly suggest that both parties labored under a basic belief not in accord with the facts, a mutual mistake, which had a material effect on the agreed exchange since the plaintiff could not legally pursue pre-operative and post-operative functions absent the supervision of a physician. Both parties mistakenly assumed that the plaintiff was qualified to perform the duties that Ludlow had performed. The facts, therefore, suggest that there was no lack of mutual assent, but the agreement was voidable because of mutual mistake.

Wash.- Yakima County Fire Protection District v. City of Yakima, 122 Wash. 2d 371, 858 P.2d 245 (1993) (''Where a party has signed a contract without reading it that party cannot successfully argue that mutual assent was lacking as long as the party was not deprived of the opportunity to read the contract, the contract was 'plain and unambiguous', the party was capable of understanding the contract, and no fraud, deceit or coercion occurred.'')