115 Ark. 297 | Ark. | 1914
(after stating the facts),
This principle of law was recognized by this court in the case of Yeates v. Pryor, 11 Ark. 58.
In the case before us the evidence shows that Mr. Taliaferro represented to Mrs. Boyd that the property around the hotel comprised one and one-half or two acres, and also stated that all the property within the fences around the hotel belonged to him and was included in the exchange of lands. It afterward developed that an irregular piece of land on the north side of the house, sixty-two feet in width on the front end and comprising one-seventh of an acre, did not 'belong to the hotel and was not described in the deed.
It is true that Mr. Tolson testified that when Taliaferro, with a wave of his.hand, said that all the land within the fences belonged to the hotel, they could not see the fences on the north side of the house; but, inasmuch as they had already seen that portion of the property he understood that in making that representation he referred to ¡all the property within the enclosure.
Mrs. Boyd testified that she believed these representations to be true when she executed the contract for the exchange of lands, and that if she had not believed it to be true she would not have executed the contract. ■
In the case of Yeates v. Pryor, supra, the court said that where a deficit of the quantity of land was so small and unimportant as not to materially affect the interests of the parties a specific execution of the contract would be granted; but that there could be no doubt that the deficit in the quantity sold may be of such a nature and extent as to relieve the defendant from specific performance of the contract.
Under these facts, as stated in the record, we are of the opinion that Mrs. Boyd was justified in relying upon the representations as to the quantity of land to be deeded to her and that she did rely upon the representations made by the plaintiff; and, that on that account, the property being city lots, the variation was a material one.
The decree will be affirmed.