47 N.Y.S. 857 | N.Y. App. Div. | 1897
Where a contract has been entered into between parties under a natural mistake as to an essential fact, the court has power to grant such relief as the circumstances require. And cases have been frequent where, in a contract for the sale of land, the
“At that time I had a talk with Mr. King as to the price per acre and the quantity of land. We talked in a general way. We figured the land. The price he wanted then came to a little over $65 an acre. Then he had offered the farm for $21,000.”
In connection with that he spoke of the price being about $65 per acre. Again, he says that:
“We had submitted an offer of $20,000 to Mr. King. Mr. King sent word that he wanted to see me. I could not leave, and got Mr. Kerr to come out. He told Mr. Kerr she wouldn’t take $20,000 for the farm, but she would take $21,000. I told Mr. King if she would put in a thousand dollars worth of personal property I would take the farm.' Mr. King, Mr. Kerr, and myself went back to Catskill. We talked the matter over that night, and the next morning I went down, and saw Mr. King, and told him we had decided to take the place at $21,000, including personal property, which I think Mrs. Griffin inventoried at $350, making the price of the land $20,650.”
“ ‘Well, it has come out better than. I had an idea. I always supposed there was a little over three hundred acres, but I didn’t know there was as much land as this. They ought to get more money for the place.’ And then I think he took a pencil and figured on a slip of paper, and said, ‘This is only a little over $75 an acre.’ They were asking $25,000 for the farm. I said to him soon after, ‘Mr. King, if you were asking only $65 an acre, instead of $75, I think perhaps Sprague would buy It.’ ”
Subsequently, he says, King said to Mm:
“ ‘Lying, as it does, along the river here, with the location that it has got, the place to live and the value as a farm, that ought to bring $30,000. It-ought not to be sold less than that.’ I told him Sprague couldn’t and wouldn’t give any such price as that for it, in any event. He said we weren’t talking money enough. He didn’t think Mrs. Griffin and the heirs would consent to sell at any such figure as I was talking about. The only figures I had said, was. If he would say $65 an acre, I though perhaps Sprague would buy.”
Subsequently he says: "
“I said to him, ‘Mr. King,' I have made up my mind to submit an offer of $20,000 in behalf of Mr. Sprague for that property.’ He thought a minute, and said, ‘Might better have taken you up at $65 an acre.’ I said I didn’t understand I had offered $65 an acre, but I did say, ‘If you were talking $65 an acre,—if you were talking only that,—I would think we might get to a bargain.’ He said: ‘You hadn’t ought to think of offering less than $65 an acre.’ Sixty-five dollars an acre came to more than $20,000, and I answered him in this way: ‘Kow, I considered $65 an acre In malting the proposition, but the way I got at it is this: there is enough waste—poor and waste1—land in the farm, which has no value, which, if stricken out, would bring the price down to at least $20,000;’ and he replied that was a queer way to figure, and he said there were so many other acres that were worth a good many more than that, he didn’t think I ought to figure in that way. Then I said to him it didn’t make any difference anyway, because I did not think that Sprague would undertake to pay over $20,000 in any event” •
It seems to me very apparent from this that they were considering the farm as a whole, and not negotiating at a fixed price per acre. Subsequently, the same witness says that, upon again seeing Mr. King, Mr. King said “that Mrs. Griffin and the heirs had considered the matter, and they had made up their minds that they would sell the place for $21,000, but they would not sell it for $20,000.” ( After-wards the witness Kerr saw the- defendant at Mr. King’s house, and he says:
“We chatted a few minutes. She expressed herself,—I can’t quite give the words, but as being pleased to think that we had found 326 acres of land,— and she said there that She had never known much about the amount of land in the farm, but was glad there was that much, -and was pleased to think we had found it, and thought we would be pleased with the place, and so on.”
I have gone somewhat at length into tMs testimony, and have set forth everything in the evidence that seems to me relates to the question as to whether this farm was purchased by the acreage, or whether it was sold as a whole, irrespective of the exact number of acres. There are some repetitions of the same evidence by the same witnesses, but nothing I tMnk, in addition, bearing upon that question;, and it seems to me apparent that the purchase price was not deter
“Prior to the fall of 1885, I did not have an idea that I purchased or negotiated for this piece of land west of the ditch,—not of that particular piece of land. I supposed I had 320 acres inside of these lines.”
Assuming, then, that there was a mutual mistake as to the quantity of land bought and sold, that mistake was not the essential fact upon which the contract turned. The defendant was selling for a gross sum the homestead, irrespective of the number of acres it contained. This presents an entirely different case from those I have referred to, where the land was sold by the acre, and where the real agreement was to sell land at a given price per acre, the price per acre being the point where the minds of the parties met, the number of acres simply measuring the total amount of the payment, and where the court, by deducting from the total purchase price the number of acres by which the tract conveyed fell short multiplied by the purchase price per acre, has simply enforced the essential features of the contract between the parties, and permitted the recovery back of an overpayment. When land is sold by the acre, or where it is wild, uncultivated land, all of the same average value, such a remedy affords substantial justice; but it seems evident it ought not to be applied in a case like this, where the land is partly cultivated and partly uncultivated, some poor and waste land, some well wooded and good, with a number of buildings upon it, apparently in good condition. In such a case, simply dividing the purchase price by the total number of acres each party supposed the farm to contain, without taking into consideration the value of the buildings and improvements, and multiplying the result by the number of acres the farm fell short of what, it was supposed to contain, seems very clear to me as not the proper way of either determining the value per acre of the land in question, and thus the amount of the overpayment, or of fixing the amount of damages suffered by the plaintiff, if we treat it as an action for the recovery of damages.
But there is another aspect of the case that should be considered. When there has been an innocent mutual mistake of an essential fact, whereby the minds of the parties have never met, then, if the contract is as yet executor)', it. need not be carried out; if executed, it may be rescinded. But it cannot be partly rescinded and partly enforced at the option of one party. That is to make a new contract,
There are a number of other questions in the case that I have not thought necessary to consider,—among others, whether a judgment against the defendant individually is proper; whether, by the terms of the description in the deed, the plaintiff is entitled to any more land than is contained within the boundaries as defined by the lands of other persons named therein; whether the plaintiff is not concluded by the payment of the purchase-money mortgage; and also that a party desiring to correct or be relieved from a contract entered into under a mutual mistake of facts should move promptly upon discovering the mistake. Thomas v. Bartow, 48 N. Y. 193. That the plaintiff did not do. The importance of prompt action is illustrated in this case by the fact that the defendant has long since distributed the proceeds of the sale of the farm, and that her agent who conducted the negotiations on her behalf, and who would have been an important witnesses, died before the commencement of the action. Nine years elapsed between the discovery of the mistake and' the commencement of the action, and the facts had become dimmed, and the case cold and stale. It is true that the defendant became a resident of another state the year after the sale, but, with the exception of one year, she had been a yearly visitor to this state, spending several weeks each year within a few miles of the farm in question. She was at no time beyond the reach of the law in some forum, and each year was for weeks within reach of the process of this court.
I think, therefore, the judgment should be reversed, and a new trial granted, with costs to abide the event. All concur.