Corrough v. Hamill

ELLISON, J. — Plaintiff bought a tract of land of defendant lying in Nodaway county. After obtaining defendant’s warranty deed thereto plaintiff discovered a shortage in the number of acres which he thought were in the tract and which defendant told him it contained. Plaintiff thereupon brought this action for the price or value of the land he alleges he paid for and ■did not get. On trial in the circuit court the jury returned a verdict for plaintiff in the sum of $1,000, which, upon defendant’s motion, the court set aside on the ground that the petition did not state a cause of action, and plaintiff appealed from that order. The petition alleges that plaintiff bought the land of defendant and took from him a contract of sale wherein the land was described merely as defendant’s “farm in sections 10,15 and 16; Tp. 62, E. 25, Nodaway Co. (being all the land in said sections owned by said Hamill and known as the Talbott and Terhune farms) at the price and sum of $62.50 per acre.” The petition sets out a full copy of the contract and then proceeds to state that defendant afterwards executed to him his general warranty deed “whereby in consideration of $51,875” he conveyed the farm to plaintiff by proper [56] specific description, which, description closed with the words, “all in township 63, range 35, and containing 830 acres, and being all the land-owned by Peter Hamill in the above-named sections.” It is then stated in the petition that defendant by snch deed warranted the title to the premises. It is further stated that, “owing to the irregular boundary of said lands it was difficult to ascertain the quantity of land embraced in said description, that he (plaintiff) was a stranger and unacquainted with the land; that he purchased same by the acre and agreed to pay and did pay in full for 830 acres of land at $62.50 per aere.” That defendant stated there were that number of acres before the delivery of the deed, which statement plaintiff believed and relied upon. The petition further stated: “Plaintiff says the statements of defendant as to the number of acres-conveyed by said deed were false and fraudulent; that he was deceived thereby and paid to defendant the sum of two thousand dollars in excess of what was due under a mistake of fact induced and caused by the false statements of defendant that he knew the number of acres conveyed by said deed, upon which statement plaintiff relied.” There is. no allegation in the petition that the deed was fraudulently obtained nor that anything was omitted therefrom by fraud, accident or mistake. The deed therefore must be presumed to contain the final contract of the parties and to measure defendant’s liability. [Davidson v. Manson, 146 Mo. 608, 619, 620.] So accepting the deed we find that it does not contain a contract, covenant or warranty that the tract contained 830 acres. The deed merely recited that it did contain that number of acres and this amounted to a mere representation — the opinion of the grantor. [Hobein v. Frick, 69 Mo. App. 263; Wood v. Murphy, 47 Mo. App. 539.] The case stated in the petition and tried by the court is wholly unlike that of McGhee v. Bell, 170 Mo. 121. [57] We are of the opinion that the petition, as it stands, fails to state a cause of action and the judgment is affirmed. All concur.