Kent v. Carcaud

Tuck, J., delivered the opinion of this court. The principles governing cases of this kind are well settled, though the courts many times find difficulty in applying them. Here there is no pretence of fraud, concealment or wilful misrepresentation; it is a case of mutual mistake on the part of the trustees and purchasers, all the parties to the sale believing that the land contained much more than was after-wards found to be correct. The question for decision is, what, if any, abatement the court, as vendor, ought to make;, from the sum agreed to be paid by the appellees? If we look to the written agreement alone, there is clearly" no ground for any deduction. According to its meaning, the appellees agreed to pay a sum certain, in gross, for one half a farm, by name, without mention of the quantity, or reference to a plat, or any stipulation on the part of the vendors. The thing bargained for was a particular farm for so much money. But it is alleged that the appellees made the purchase under the belief that the farm contained 716 acres, produced by the representation of the trustees, and the exhibition of a plat to that effect. If this be so, equity will not hold them to the payment of the amount agreed to be paid, because the exhibition of a plat is equivalent to an averment [299] *01 the number of acres, and it may be shown that a written contract was entered info in consequence of a misrepresentation by the other party, though innocently made. Marbury vs. Stonestreet, l Md. Rep., 147. Joice & Wife vs. Taylor, 6 G. & J., 58. In the notices of sale for July 1853, and July 1854, the trustee “supposed the farm to contain about 500 acres,” but when the sale to Gantt was reported they had learned that it contained 716 acres, of which Kent was entitled to one half. Soon after this we find them treating with the appel ■ lees — Gantt having been discharged from his contract — which treaty resulted in the agreement of the 4th of Sept. 1855. There is no proof that Mrs. Kent had any thing to do with the treaty, orthat she showed a plat of the land, but the answer and the agreement of counsel establish that there was a plat as stated in the petition, and that the trustees and vendees acted under the belief that the farm contained the quantity indicated by the plat, and we have no doubt that the purchase was made in reliance upon that for the number of acres, and that the trustees were of the same opinion, and so represented at the time of the treaty. They said in their report of August 1855, that they were informed that the land contained 716 acres, and it was their duty, in any subsequent negotiation, so to represent, if they believed the information reliable. It is alleged in the answer of the trustees that the appellees agreed to take one half the farm for 350 acres, more or less, and the appellants claim the benefit of this averment as showing that the appellees took the risk as to quantity. To allow this would be to introduce a qualification into the written agreement, by which the obligations of the parties would be materially changed. The appellees do not deny that they made the contract of September 1855, but they say that there was a representation made at the time upon which they acted; this was the ground of the relief sought, and the trustees were not authorised, in answering the petition, to set up a treaty or terms agreed upon before the written contract was [300] made, inconsistent with the legal import of the instrument, which must be considered as having merged all previous negotiations resting in parol. Here the written agreement of the 4th of September, is the contract of purchase, and the allegation by the trustees of any contrary stipulation cannot be received. If there was proof that these words, “more or less,” were agreed upon in the treaty, and had been omitted from the written contract, the defence would stand upon a different .principle. Jones vs. Hardesty, 10 G. & J., 404. Worthington vs. Bullitt, 6 Md. Rep., 172, and 3 Md. Ch. Dec., 99. 1 Johns. Ch. Rep., 273. 4 Md. Rep., 36, West vs. Flannagan. But this view does not apply to that part of the answer which is responsive to the allegation in the. petition as to the representation of the number of acres. The petitioners must have relief, if at all, according to the case made by their petition, and they can succeed only so far as it may be admitted or proved. Here they allege that there was an averment, or what was equivalent, that the land contained 716 acres, and that they made the purchase, in consequence, of one half of that quantity. This statement it was the duty of the trustees to answer, and their answer, unless disproved, binds the petitioners. They say that they sold half the farm assuming it to be 350 acres, and that the appellees agreed to take it for that quantity. There is nothing to rebut this view of the case, and we think it is sustained by other circumstances apart from the answer. Jones vs. Belt, 2 Gill, 106. Glenn vs. Grover, 3 Md. Rep., 212. Our conclusion is, that the deduction should have been allowed in the proportion of 350 acres to the actual quantity, instead of 358 to that numWr of acres. In regard to the point, that the sale should be rescinded entirely, if the court interfere at all, we may remark that the general rule is, that the vendee shall have what the vendor can give, with an abatement out of the unpaid purchase money for so much as the quantity falls short of the representation, and we perceive nothing, in the record to except this case from the established doctrine. 1 Md. Rep., 147. [301] (Decided Oct. 3rd, 1861.) The cause will be remanded for further proceedings, in conformity with the views hero expressed, with costs ol the appeal to the appellants. Cause remanded, with costs of the appeal to the appellants.