184 Iowa 1268 | Iowa | 1918
By his petition in this action, the plaintiff alleges that the land was sold to him as containing 500 acres, at the price of $100 per acre, or $50,000, but that, upon subsequent measurement and ascertainment, it was'found to contain but 479.89 acres, and no more; and because of the shortage of 20.11 acres, thus developed, he demands recovery in damages at the rate of $100 per acre, with interest. The answer consists principally of denials of the material allegations of the petition.
The evidence offered on the trial is very brief. In support of his claim, the'plaintiff identified and introduced the written contract between the parties, also the conveyance made in pursuance of such agreement, and called as a witness a surveyor, who testified that the portion of land described in the deed as being in Section 18, and containing 215 acres, more or less, contains, in fact, but 173.51 acres;
The jury submitted a special finding that the land conveyed to plaintiff was “short of the 500 acres designated in the contract” to the extent of 15 acres, and assessed damages in plaintiff’s favor for $1,635.75. Judgment was, entered accordingly.
*1275 “It is quite evident that it was in the contemplation of the parties at the time that the quantity of land sold was 135 acres; both the contract and deed call for that number of acres, and it is reasonable to suppose that, before the survey of Mr. Rhodes, they thought that very near, if not exactly, the amount of the land. * * * The plain and sensible rule, as it appears to me, is this: when land is sold as containing so many acres ‘more or less,’ if the quantity on actual survey and estimation either overrunning or falling short of the contents named be small, no compensation should be recovered by either party. The words ‘more or less’ must be intended to meet such result. But if the variance be considerable, the party sustaining the loss should be allowed for it.”
In the course of its discussion, the court further cites approvingly the case of Hill v. Buckley, 17 Vesey 393, 401, which announces the same doctrine, and holds that the rule is applicable although the land is not bought or sold professedly by the acre, “the presumption being that, in fixing the price, regard was had to the quantity.” With further reference to the cases, the chancellor adds:
“Nor do I think it a sufficient objection * * * that the contract has been executed. It is true, the cases cited refer to contracts remaining in fieri; but the principle is the same, whether the contract only be executed, or has been consummated by giving the deed.” . /
In Wilson v. Randall, 67 N. Y. 338, 341, it is expressly held that, in a controversy of this kind, resort may be had to- both contract and deed, upon the question whether the sale was in gross or by the acre. Indeed, the rule deducible from the great weight of authority is that the question whether the sale is in gross or otherwise does not depend solely upon the presence or absence of an expressly stated price per acre, in the written contract or subsequent deed; but, if the terms of these instruments be such as to make it
The case of Paine v. Upton, 87 N. Y. 327, is quite in point with the one before us, in several particulars. The land sold was a farm, made up of parcels separately described, and their contents specifically named. The agreed price was a lump sum, and a deed was made, describing the land as “220 acres of land, be the same more or less.” There proved to be a material deficiency. In holding that the purchaser was entitled to relief, the court says:
“In the absence of any finding of special facts and circumstances, the natural presumption is that, in a sale of agricultural land, the element of quantity enters into the transaction, and affects the consideration agreed to be paid.” Of the effect of the words “more or less,”-the court further says they “do not import a special engagement that the purchaser takes the risk of the 'quantity, and that, while their presence may render it more difficult to prove such a mistake as will justify the interference of equity, they are not equivalent to a stipulation that the mistake, when ascertained, shall not be a ground of relief. * * They are also intended to cover sriiall discrepancies between the actual quantity and that stated in the contract or deed, and no inference of mistake would arise from a small discrepancy merely. But where the difference is material, and the mistake is confessed, or satisfactorily proved, there would seem to be no violation of principle in granting relief.”
“ It has long been settled,’ says Cook, J., ‘that' the relative extent of the surplus or deficit cannot furnish per se an infallible criterion in each case for its determination, but that each case must be considered with reference not only to that, but its other peculiar circumstances. The conduct of the parties, the value, extent and quality of the land, the date of the contract, the price, and other nameless circumstances, are always important, and generally decisive.’ ” 2 Warvelle on Vendors (2d Ed.), Section 883.
The attempt of some courts to say what percentage of deficiency is generally allowable, under the words “more or less,” does not appeal to us as either a practicable or safe rule. In the case at bar, the parties were dealing with valuable property, on the apparent basis of $100 per acre; and, while it is true that a shortage of 15 acres is but 3 per cent of the number of acres mentioned’ in the contract, the corresponding proportion of the purchase price is $1,500, a sum which is certainly not to be disregarded as nominal, nor is it either absolutely or relatively so small that we can presume that, if plaintiff had been informed of it, he would not have entered into the contract, and paid the full stated price. . It
“In other words, the values designated in the agreement to be binding on the parties must appear to have been specified as such, and not as merely incidental to some other purpose not involving the intention of deciding the true worth.”
The opinion then adds that the criterion in determining whether there has been a sale or an exchange is whether there is a fixed price at which the things are to be exchanged. “If there is such fixed price, the transaction is a sale, but if there is not, the transaction is an exchange.”
Applying this test, we have no difficulty in holding that the transaction in this case was a salé, and not an exchange.
The judgment below is — Affirmed.