149 Minn. 177 | Minn. | 1921
On October 25, 1917, defendant, Cordelia Warrick, and her husband, Isaac Warrick, contracted to sell to plaintiff 'an irregular tract of land in Nobles county. This action was brought to compel specific performance of the agreement. Prom a judgment for plaintiff, defendants appeal.
There is evidence that, prior to the making of the contract sued on, the Warricks placed the land in the hands of John Mitchell, a land man of Worthington, for sale, and told him the tract contained 209 acres. Mitchell -Went to plaintiff and negotiated a sale at $140 an acre, and told him the farm contained 209 acres, and drew a written contract of sale stipulating for a sale at $140 an acre or $29,260. Mitchell and plaintiff went together to procure the signatures of the Warricks to this contract, 'but the Warricks wanted more money. They demanded $29,-800. Plaintiff testified that he sat down with them and figured the price per acre on a basis of 209 acres at $142.58 per acre, and then told them he would accept the -offer. He then prepared a contract of sale which described the property according to government subdivisions and as “containing in all, two hundred and nine (209) acres.” The price named in the contract was $29,800, the sum of $1,000 to be paid on execution of the contract, $8,800 March 1, 1918, $20,000 on or before March 1, 1928, with interest at 5% per cent per annum.
Thereafter, two matters of controversy arose. Plaintiff had the land surveyed and claimed the acreage was only 203.17. There were mortgages upon the land aggregating above $8,000 to one Patterson, due March 1, 1921, and the mortgagee would not accept the money and release the mortgages.
The court found “that .the price of the said land was computed upon the basis of 209 acres and that the price per acre so computed was $142.58.” Defendants challenge the part of this finding that the farm was sold “on an acreage basis, or for any particular price per acre.” They contend that this finding is “absolutely without foundation in the evidence” and that “this being so, the whole fabric of plaintiff’s case falls.” There may be some question whether this contract can be considered technically a sale at the .price of $142.58 per acre, but in our opinion this is by no means decisive of the case. The contract does in express terms stipulate that the tract sold is described as “containing in all two hundred and nine (209) acres,” and the tract in fact falls short by 5.83 acres.
We understand the rule to be that, where the tract sold is described as of a given quantity, that quantity is a material term of the contract, and, if it is in fact deficient in quantity, the court may, at the option of the purchaser, decree a conveyance, and allow the purchaser pecuniary compensation or abatement of price proportioned to the amount of the deficiency. Pomeroy, Contracts, Specific Performance, §§ 434-435, 438; Warvelle, Vendors, § 749; Melin v. Woolley, 103 Minn. 498, 115 N. W. 654, 946, 22 L.R.A. (N.S.) 595; Tobin v. Larkin, 183 Mass. 389, 67 N. E. 340; Garrett v. Goff, 61 W. Va. 221, 56 S. E. 351; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176; Seegar v. Smith, 78 Ga. 616, 3 S. E. 613; Murphy v. Hohne, 73 Fla. 803, 74 South. 973, L.R.A. 1917F, 594. This appeals to us as a just rule and we adopt it and hold that it is applicable, Whether the land is sold by -the acre or for a lump sum.
Judgment affirmed.