19 A. 1092 | N.H. | 1889
There was a mutual mistake in the quantity of land. The defendant understood she was selling, and the plaintiff that he was buying a farm of two hundred acres. It in fact contains only one hundred and thirty-five acres. The defendant believing that the farm contained two hundred acres informed the plaintiff that it did contain that number. The plaintiff relied on her statement. Under the influence of the error common to both parties the transaction was consummated. The mistake was one of fact in a material point affecting the value of the property. Boynton v. Hazelboom, 14 Allen 107, 108. Its prejudicial consequences to the plaintiff are the same as if the defendants statement had been designedly fraudulent. Spurr v. Benedict,
No laches can be imputed to the plaintiff. He had a right to rely on the defendant's statement of the quantity. He could not discover the mistake by examining the external boundaries. Paine v. Upton,
The personal property formed no substantial part of the consideration. It is not named in the body of the bond, but is mentioned apparently as an afterthought on the margin. Upon the rescission of a sale of farm lands by a vendee in possession, there must, in most cases, necessarily be an accounting in order to restore the parties to the situation they occupied prior to the contract. Upon such an accounting all the property, the possession of which passed from the defendant to the plaintiff, or its full equivalent, together with the income derived from it, may be fully restored to her. It is no objection to a rescission in a case of this character that such articles as are necessarily consumed in the proper and ordinary management of a farm cannot be restored in specie. It does not appear that the plaintiff, after his discovery of the mistake, took any action by which he intended to affirm the contract (Montgomery v. Pickering,
Decree for the plaintiff.
ALLEN, J., did not sit: the others concurred. *140