delivered the opinion of the court.
The .only question here before this court is what is the true measure of compensation for the deficiency in quantity of the land. The circuit court adopted the following method of ascertaining the compensation to be paid for the loss : ■
“ This is ascertained by estimating the value of the buildings on the premises at the date of the contract, and subtracting this value from the $5,000, contract price, and then estimating the price per acre, supposing the tract to contain two hundred and forty acres, based upon the balance of the contract price after deducting the value of the buildings. The real loss will be the product of the number of acres deficient, into this average price for the land;” and declares that this mode is warranted by Hoback v. Kilgore, 26 Gratt., and Watson v. Hoy, 28 Gratt.
In the last named case the judge who delivered the opinion of the court says:
“ Being of opinion, for the reasons stated, that the appellant was entitled to a proper abatement of the balance of the purchase money owing by him for the deficiency of thirty-four and one-half acres in the quantity of land bought by him, and consequently that the court below erred in dismissing his petition, it only remains to consider what should be allowed him by way
The essential difference between this rule and the rule laid down by tbe circuit court is obvious. The circuit court in this cause makes the exception the rule. In this case the circuit court says : “ The relief, however, ought not to be the average price per acre. This is the exact measure of damages when land alone is sold. But when land with very valuable buildings are sold, and there is a mere deficiency in quantity of land, but all the buildings are secured, it would be an absurd measure of damages.”
And tbe circuit court then proceeds to decree upon an estimate of the buildings upon this tract of land, at $2,211, when the entire tract of one hundred and sixty-five acres was estimated at a price which brought it below that sum. The estimate of the buildings, as filed in this cause, is an illustration of the wisdom of the rule heretofore maintained by this court, and a warning against the new departure taken up by tbe circuit court.
This court in Watson v. Hoy, supra, was of opinion that in that case there were particular circumstances requiring a departure from the rule, on account of bridge privileges and fisheries of great value, and the exceptional character of the elegant mansion at Chatham. But what and where are the exceptional and particular circumstances in this case? A wooden farm-house, with the usual out-buildings and fences, seem to present the most ordinary case which could be stated, and the
When the parties contract for the payment of a gross sum for a tract or parcel of land upon an estimate of a given quantity, which influences the price agreed to be paid, there is no mistake in the terms of the contract, nor in the application of those terms to the subject; but the mistake is in an important element of the contract, which, if correctly understood at the time, would in all probability have prevented the contract from being made, or have varied its terms. That such cases require relief in equity is well established.
The proper relief is to set aside the contract, or to give a just compensation, such as will place the parties in the same relative situation in which they would probably have .placed themselves if the true state of the fact had been known when they made their agreement.
Upon the question of compensation the substantial distinction is between a sale that is a contract of hazard and one that is not._ A sale in gross, when applied to the thing sold, means a sale by the tract, without regard to quantity, and is in that sense a contract of hazard. Russell v. Keeran, 8 Leigh, 19.
In that sense, however, the distinction sometimes taken, between a sale in gross and a sale by the acre is too narrow, inasmuch as though a sale in gross, thus understood, is a contract of hazard, a sale by the acre may be so too.
A sale by the acre, at a given sum per acre, carries out the intention of the parties, whether they are correct or mistaken in their estimate of the quantity; whereas a sale in gross effectuates their intention only when they are correct as to quantity. The true ground of relief is as to the mistake of the parties.
The question of compensation usually arises, not in sales by the acre, but in sales for a gross sum. The first enquiry is, did the parties make a mistake in their estimate of the quantity which influenced the price; and then whether, notwithstanding the mistake, they have waived their right to compensation by a contract of hazard. The estimate of the quantity should, as a general rule, always be taken to have influenced the price. In the case before us the quantity is not stated in the deed, but the quantity appears to have been throughout’ all the negotiations from first to last matter of discussion, consideration and contract on both sides. For the reasons stated above, I think the circuit court erred in the mode adopted in ascertaining the measure of damages.
This is a case of deficiency in quantity within the boundaries of the tract conveyed. In such a case the general rule of compensation is, according to the average value of the whole tract, and there are. no peculiar circumstances in this case requiring a departure from that rule. The sale was based upon an estimate of $20 per acre for the whole tract of land, and the deficiency was seventy-five acres. The true abatement is the amount obtained by multiplying these, two numbers together, to-wit, $1,500, which should be credited on the principal sum still owing by the appellant as of the date when it bears interest. I am for reversing the decree of the court below and
The decree is as follows:
This day came here the parties, by their counsel, and the court having maturely considered the transcript of the record of the decree aforesaid and the arguments of counsel, is of. opinion, for reasons stated in writing and filed with the record, that the appellant is entitled to compensation for the deficiency, ascertained to be seventy-five acres, in the farm purchased by him from the appellee’s decedent, and that such compensation should be allowed him by way of abatement in the balance of the purchase money due by him for said farm. And the court is further of opinion, that such compensation should he according to the average value per acre of the whole tract under the contract of ■purchase—to-wit., twenty dollars per acre for seventy-five acres, which appears to be the deficiency as aforesaid. And the court being further of the o,pinion, that the decree aforesaid of the said circuit court is wholly erroneous, it is therefore decreed and ordered that the said decree be reversed and annulled, and that the appellant recover against the appellees his costs by him expended in the prosecution of his appeal aforesaid here, and that in satisfaction of this decree for costs he be allowed to retain the amount of said costs, and receive credit therefor on the balance of the purchase money owing by him as aforesaid.
And this cause is remanded to the said circuit court of Washington for further proceedings to be had therein, in conformity with the opinion and the directions herein contained.
Which is ordered to be certified to the said circuit court of Washington.
Decebe eeveesed.