Kent v. Carcaud

Tuck, J., delivered the opinion of this court. The principles governing cases of this kind are well settled, though the courts many times find difficulty in applying them. Here there is no pretence of fraud, concealment or wilful misrepresentation; it is a case of mutual mistake on the part of the trustees and purchasers, all the parties to the sale believing that the land contained much more than was after-wards found to be correct. The question for decision is, what, if any, abatement the court, as vendor, ought to make;, from the sum agreed to be paid by the appellees?

If we look to the written agreement alone, there is clearly" no ground for any deduction. According to its meaning, the appellees agreed to pay a sum certain, in gross, for one half a farm, by name, without mention of the quantity, or reference to a plat, or any stipulation on the part of the vendors. The thing bargained for was a particular farm for so much money. But it is alleged that the appellees made the purchase under the belief that the farm contained 716 acres, produced by the representation of the trustees, and the exhibition of a plat to that effect.

If this be so, equity will not hold them to the payment of the amount agreed to be paid, because the exhibition of a plat is equivalent to an averment ^{299 01} the number of acres, and it may be shown that a written contract was entered info in consequence of a misrepresentation by the other party, though innocently made. Marbury vs. Stonestreet, l Md. Rep., 147. Joice & Wife vs. Taylor, 6 G. & J., 58. In the notices of sale for July 1853, and July 1854, the trustee “supposed the farm to contain about 500 acres,” but when the sale to Gantt was reported they had learned that it contained 716 acres, of which Kent was entitled to one half.

Soon after this we find them treating with the appel ■ lees — Gantt having been discharged from his contract — which treaty resulted in the agreement of the 4th of Sept. 1855. There is no proof that Mrs. Kent had any thing to do with the treaty, orthat she showed a plat of the land, but the answer and the agreement of counsel establish that there was a plat as stated in the petition, and that the trustees and vendees acted under the belief that the farm contained the quantity indicated by the plat, and we have no doubt that the purchase was made in reliance upon that for the number of acres, and that the trustees were of the same opinion, and so represented at the time of the treaty. They said in their report of August 1855, that they were informed that the land contained 716 acres, and it was their duty, in any subsequent negotiation, so to represent, if they believed the information reliable. It is alleged in the answer of the trustees that the appellees agreed to take one half the farm for 350 acres, more or less, and the appellants claim the benefit of this averment as showing that the appellees