Cardinal v. Hadley

158 Mass. 352 | Mass. | 1893

Barker, J.

1. The exceptions to the admission of oral evidence, and to the refusal to rule that the plaintiff could not show by such evidence that the price of the land was to depend upon the number of square feet in its area, must be overruled. It was long since declared by this court to be well settled, that both the statement of consideration in a deed and the recital of its payment may be varied and controlled by parol evidence. Gale v. Coburn, 18 Pick. 397, 401. Clapp v. Tirrell, 20 Pick. 247, 250. See also Wallis v. Wallis, 4 Mass. 135; Wilkinson v. Scott, 17 Mass. 249, 257; Preble v. Baldwin, 6 Cush. 549, 553 ; Paige v. Sherman, 6 Gray, 511, 513 ; Miller v. Goodwin, 8 Gray, 542; Egan v. Bowker, 5 Allen, 449; Pickman v. Trinity Church, 123 Mass. 1, 8.

2. The plaintiff did not waive his right by accepting the deed. He bought land by the square foot, and in fixing the sum to be paid the area was not estimated, but was computed, and a mistake against him was made in the computation. In ignorance of the mistake, he paid the sum so computed, and after discovering the mistake brought his action to recover the amount overpaid by reason of the mistake.

The case is easily distinguished from those upon which the defendant relies to show a waiver of the right of action by accepting the deed. In Williams v. Hathaway, 19 Pick. 387, the land was sold by the estimated area. Pickman v. Trinity Church, ubi supra, cited by the defendant, is a plain authority against him. In that case the mistake was not one of computation, but arose from a misapprehension as to the title of a strip of land covered by a wall. Lewis v. Jewell, 151 Mass. 345, was an action for false representations of quantity in a sale of carpets, and has no bearing on the present case, turning only on the question as to whether the purchaser used due diligence in relying on the representations of the seller. The ease also differs from that of Noble v. Googins, 99 Mass. 231, because there the price was an entire sum, in fixing which no regard was had to the area, while in the case at bar the quantity of land was made an essential element of the bargain. The case at bar is analogous to the cases of Paige v. Sherman, 6 Gray, 511, Tarbell v. Bowman, 103 Mass. 341, and Pickman v. Trinity Church, ubi supra, in each of which the price depended upon the area, and was erroneously fixed and paid under a mistake of fact. Because the agreement here was not for an entire sum, and the quantity of land was an essential element of the bargain, and fixed the price to be paid, the plaintiff did not waive his right to recover the money paid by mistake by accepting a deed which was silent as to the quantity of land, although the description was by monuments, and also by measurements stated to be “ more or less.” The deed shows clearly enough that no other land was intended than the lot within the monuments, but has no tendency to show that the parties agreed that its area was as computed by them when fixing the sum to be paid for the land. It has no bearing on the present issue.

3. The payment of the note after the discovery of the mistake is no bar to the action. It was originally received as cash, and its amount is not stated. There is nothing to show that it would not have been given if there had been no mistake. The defendant has not been harmed by its payment, and the plaintiff was not compelled to expose himself to a suit by attempting to set off against it his present cause of action.

Exceptions overruled.