Newton v. Tolles

Carpenter, J. There was a mutual mistake in the quantity of •land. The defendant understood she was selling’, and the plaintiff that be was buying, a farm of two hundred acres. It in fact contains only one hundred and thirty-five acres. The defendant, believing that the farm contained two hundred acres; informed the plaintiff that it did contain that number. The plaintiff relied on her statement. Under the influence of the error common to both parties the transaction was consummated. The mistake was one of fact, in a material point affecting the value of the property. Boynton v. Hazelboom, 14 Allen 107, 108. Its prejudicial consequences to the plaintiff are the same as if the defendant’s statement had been designedly fraudulent. Spurr v. Benedict, 99 Mass. 463, 467. The deficiency is so great that it would “ naturally raise the presumption of fraud, imposition, or mistake in the very essence of the contract ” if the mistake were not affirmatively found. Stebbins v. Eddy, 4 Mason 414, 420. A material mistake in the quantity does not, in its effect upon the equitable rights of the parties, differ from a like mistake in the character, situation, or title of the bar-gained property. It is equivalent to a mistake in the existence of a materia] part of the subject of the contract. The case is as if, before the contract was executed and without the knowledge of either party, a parcel containing sixty-five acres of the two hundred contracted for had sunk in the sea. Allen v. Hammond, 11 Pet. 63, 71, 72; Hitchcock v. Giddings, 4 Price 135; Sto. Eq. Jur., ss. 141, 142. The error is as injurious to the plaintiff as if two hundred acres were comprised in the stated boundaries and the defendant had no title to a parcel of sixty-five acres, or as if she had title to only one hundred and thirty-five two-hundredths of the whole in common with a stranger. Hooper v. Smart, L. R. 18 Eq. 683. The defendant could not sustain a bill to compel a specific performance of the contract by the plaintiff, because it would be inequitable. Pickering v. Pickering, 38 N. H. 400, 407, 408; Eastman v. Plumer, 46 N. H. 464, 479. The party against whom a contract, made under a mutual mistake of material fac-ts, will not be specifically enforced, is in general entitled to rescind. Pom. Spec. Perf., s. 250. If there are exceptions to the rule, this case does not fall within them. It is inequitable that the defendant, by reason of her negligent and erroneous, though not fraudulent, representation, should make a profit of the sum at which the parties valued sixty-five acres of land, and that the plaintiff without fault on his part should lose that sum. Equity will prevent such a result by rescinding the contract or decreeing a specific performance with compensation in behalf of the injured party, at his election, and by refusing specific performance on the application of the other *139 party. Hill v. Buckley, 17 Ves. 394; Price v. North, 2 Y. & C. Ex. 620; Dalby v. Pullen, 3 Sim. 29; Leslie v. Tompson, 9 Hare 268; Barnes v. Wood, L. R. 8 Eq. 424; Whittemore v. Whittemore, L. R. 8 Eq. 603; Aberaman Ironworks v. Wickens, L. R. 4 Ch. 101; Denny v. Hancock, L. R. 6 Ch. 1; Torrance v. Bolton, L. R. 8 Ch. 118; In re Turner, 13 Ch. Div. 130; Belknap v. Sealey, 14 N. Y. 143; Paine v. Upton, 87 N. Y. 327; Couse v. Boyles, 4 N. J. Eq. 212; Thomas v. Perry, Pet. C. C. 49; Daniel v. Mitchell, 1 Story 172; Doggett v. Emerson, 8 Story 700 ; Smith v. Babcock, 2 Wood. & M. 246; Quesnel v. Woodlief, 2 Hen. & M. 173; Lawrence v. Staigg, 8 R. I. 256; Noble v. Googins, 99 Mass. 231. Neither of the parties understood that the contract to convey “ about ” two hundred acres was performed by conveying one hundred and thirty-five acres. Wilson v. Randall, 67 N. Y. 338, 341, 342, and cases above cited. No laches can be imputed to the plaintiff. He had a right to rely on the defendant’s statement of the quantity. He could not discover the mistake by examining the external boundaries. Paine v. Upton, 87 N. Y. 327, 337. When, by the defendant’s tender of a deed and demand of payment, he ascertained that she would not voluntarily correct the mistake, he immediately filed his bill. The personal property formed no substantial part of the consideration. It is not named in the body of the bond, but is mentioned apparently as an afterthought on the margin. Upon the rescission of a sale of farm lands by a vendee in possession, there must, in most cases, necessarily be an accounting in order to restore the parties to the situation they occupied prior to the contract. Upon such an accounting all the property, the possession of which passed from the defendant to the plaintiff, or its full equivalent, together with the income derived from it, may be fully restored to her. It is no objection to a rescission in a case of this character that such articles as are necessarily consumed in the proper and ordinary management of a farm cannot be restored in specie. It does not appear that the plaintiff, after his discovery of the mistake, took any action by which ho intended to affirm the contract (Montgomery v. Pickering, 116 Mass. 227), or that he did anything with the property not reasonably necessary for its preservation, or which equity would not require to be done. The plaintiff is to be relieved upon such terms as justice to both parties requires. Wiswall v. Harriman, 62 N. H. 671, 672; 2 Sto. Eq. Jur., s. 707. The offered evidence of value was immaterial, and was properly excluded. In the suit at law there must be judgment for the defendant. The details of the decree will be settled at the trial term. Decree for the plaintiff. Allen, J., did not sit: the others concurred.