Stevens v. Giddings

Park, O. J. The controlling fact in this case is, that there was a material deficiency in the quantity of land sold. The plaintiff’s circular represented the lot to be one hundred feet in depth. The auctioneer proclaimed at the sale that the lot was of that depth. The lot was in fact but ninety-five and one half feet deep. That part of the finding important in this respect is as follows: “ The defendant had not measured the lot, and had no knowledge of its depth, but relied upon the statements of the auctioneer and of the circular, and he was influenced in his bid by the representations of the auctioneer. The depth of the lot was a material element in its value.” The importance of the deficiency of the land sold will appear when it is considered that it was sold with a dwelling-house which was seventy-seven feet in length. The sale of the other tracts of land rendered it necessary to change the location of the house, so that the length of the [513] house would be ou a line with the depth of the lot. Hence, when the house has been placed in its new position, there will be less than ten feet space left unoccupied at each end of the house. We think the finding of the court upon this subject is decisive of the case. The defendant was not bound to accept a lot in the circumstances of this case, which was but ninety-five and one-half feet in depth, for one of one hundred feet in depth, when the court has found that the depth of the lot was a material element in its value. But it is said that the defendant had the opportunity to measure the depth of the lot before purchasing, and that therefore the fault was his own. It would be altogether unusual for a purchaser to measure the depth of a lot after the seller by his circular had represented it to be of a certain depth, and his agent the auctioneer had positively asserted at the time of the sale that it was of that depth. It would be far more reasonable to hold the plaintiff bound by his acts and declarations under the circumstances, than to hold the defendant bound by his omission to make the measurement. We think the defendant had the right to rely on the representations of the plaintiff and on the declarations of the auctioneer. We do not advise a new trial. In this opinion the other judges concurred, except Loomis, J., who did not sit.