Garbanati v. Fassbinder

Mr. Justice Elliott delivered the opinion of the court. From the record before us it does not appear that any objection was made in the district .court to the sufficiency of the pleadings by demurrer or otherwise; nor is any such objection interposed in this court. The assignments of error relate to the evidence and instructions of the court. The bill of exceptions is evidently imperfect. It does not purport to contain all the evidence, either oral or documentary. Ho errors in relation to the admission or exclusion of testimony appear in the record. ' Heither the written contract to convey nor the deed of warranty states the length or breadth of the lots, nor the quantity of land they contain. The contract describes the lots with reference to a particular survey, stakes and platting; the deed describes them with reference to a particular map. Ho mere oral representation which may have been made at the time of executing either of the writings, as to [538] the size of the lots, unless of such a character as to amount to a fraud, was competent evidence to charge defendant with liability in the action, even if the lots actually conveyed did not contain the full amount of land orally represented ; and, in the absence of fraud, the purchaser, as well as the seller, was bound by the description referred to in the written contract, except as the same may have been changed by the subsequent agreement as alleged. 1 Greenl. Ev. § 275; 3 Washb. Real Prop. p. 401 et seq.; Cabot v. Christie, 42 Vt. 121; Canal Co. v. Emmett, 9 Paige, 168. By certain requests to instruct the jury the plaintiff sought to present the question whether defendant could prove the agreement averred in his answer in reference to taking a portion of plaintiff’s lots for the street by evidence not in writing. The answer does not and need not disclose whether the alleged agreement was in writing or by parol. It is unnecessary, therefore, to determine whether or not the statute of frauds is applicable to the alleged agreement in this case; for the statute furnishes a rule of evidence, not of pleading, and the record does not purport to contain all the evidence. Tucker v. Edwards, 7 Colo. 209. Plaintiff’s remaining requests to charge were either unnecessary, by reason of the matters contained in the charge as given, or were improper under the issues as framed. It is impossible to determine to what portion of the charge, as given, the assignments of error relate. From the whole charge, however, the case seems to have been fairly submitted to the jury upon the issues as framed by the parties. Among other matters, the trial court correctly charged the jury to the effect that the written contract must control as to the land agreed to be conveyed; and that, in case of a variance between the plat and the stakes, the latter must control, inasmuch as plaintiff had admitted that he examined the stakes before purchasing. The court further charged the jury, in substance, that if [539] they should find from the evidence that a portion of the premises included in the contract to convey was not included in the deed as executed, then plaintiff was entitled to damages for the loss of the premises not thus included in' the deed, unless they should also find from the evidence that he subsequently agreed with defendant or his agent to surrender a portion of said premises for the street which was afterwards laid out; but that, if plaintiff did subsequently agree to surrender such portion for tbe street, then he could not recover. As far as we can judge from the evidence in the record, there appears to he no reason for disturbing the verdict. The judgment of the district court is affirmed. Affirmed. Me. Justice Hayt, having presided at the trial in the court below, took no part in tbe consideration of this cause.