Duffy v. . Phipps

Glare, O. J. Tbe defendant’s contract to sell tbe plaintiff “about 204 acres of land, known as tbe Buffalo farm, and adjoining tbe lands of Cicero Moore, C. D. Benbow, Thomas Pemberton, and others, at $100 per acre” was a sale by tbe acre, and tbe plaintiff is entitled to a rebate, or a return, of tbe amount overpaid. Henofer v. Realty Co., 178 N. C., 584. Tbe defendant contends tbat tbe contract was merged in tbe deed, and therefore tbe complaint does not state a cause of action. Tbe deed representing tbat tbe acreage was 197 acres was tbe act of tbe defendant in assumed execution of tbe contract and tbe acceptance of it by the plaintiff does not estop him from showing a shortage in tbe acreage and from a recovery of tbe amount overpaid. McGee v. Craven, 106 N. C., 353; Brown v. Hobbs, 147 N. C., 77; Kendricks v. Ins. Co., 124 N. C., 318. Tbe deed was made in pursuance of tbe contract, and tbe estimate in tbe contract, “about 204 acres,” and tbe estimate in tbe deed, “197 acres,” and tbe estimate in tbe contract of $20,000 are all subsidiary to tbe contract of sale “at $100 per acre.” "Whenever tbe true acreage was ascertained, whether it was more than tbe above estimates or less, tbe amount of tbe purchase monby was to be ascertained by multiplying such acreage by $100. This is tbe basis' of tbe contract. If it bad turned out tbat tbe true acreage was more than this estimate, tbe plaintiff would have bad to pay tbe increased amount. It proving to be less, tbe defendant must refund tbe overpayment. Affirmed.