131 P. 1025 | Or. | 1913
delivered the opinion of the court.
The contention of the defendants is that at the time the option was given and the payments were made the land had been actually surveyed and the lines marked, and plaintiff by the exercise of reasonable diligence could have ascertained the area; that plaintiff and defendants were familiar with the method of securing surveyed and unsurveyed land with scrip, and were aware that sections 4 and 5 would either be in excess of 640 acres to each section, or that there would be a deficiency in the area; that plaintiff purchased at his hazard as to quantity. The contract of the Northern Pacific Railway Company provided that, in case of failure to obtain title to any portion of the land embraced in its contract, the sum of $10 per acre should be refunded, and that in the event of an excess in the acreage such amount per acre should be paid for the excess.
It is- unnecessary to consider wbat would have been the effect if there bad been a small deficiency in the amount of the land, or the other question referred to iu the case. It is clear that the land was what plaintiff desired to obtain, aud what the defendants intended to sell a certain right to. It was not the mere scrip or applications made for land which did not exist, as described in the option contract.
The decree of the lower court should therefore be affirmed; and it is so ordered. Affirmed.