Tyson v. Hardesty

Bartol, C. J., delivered the opinion of the court. The controversy in this case grows out of a claim made by the appellee, for an abatement in the price of a farm purchased by him from Jesse Tyson and James W. Tyson, executors and devisees in trust, under the will of Isaac Tyson, Jr.; on account of an alleged deficiency in the quantity of land. The sale was made by James W. Tyson, and was evidenced by a contract in writing, dated on the [5th day of September, 1864, and signed by him and the appellee. It is in its terms an agreement “to sell the Wilna Farm, Harford County, Md., to Richard S. Hardesty, for the sum of eleven thousand dollars, 171 acres more or less.” It was afterwards ascertained by an actual survey made in April or May, 1866, by Mr. Dawson, an accurate surveyor, *that the land contained 147 acres 17 perches.

Mr. Dawson, the surveyor, was employed by the appellee, the vendors refusing to take part in the survey or to be bound by it. ³⁰⁹ There is a slight difference between the quantity as ascertained by Mr. Dawson, and that which had been ascertained by Mr. Mahool, another surveyor, who had measured the land and made a plat of it in the spring of 1864. According to Mahool’s survey there were 150 acres 2 roods and 46 perches. The Superior Court, by its decree, appears to have allowed an abatement in the purchase money, upon the basis of Mr. Dawson’s survey, which the appellants have argued was error, even if the appellee be entitled to an abatement; because Dawson’s survey was not binding upon the apppellants, and is contradicted by that of Mahool. We shall not stop to discuss the question as to the precise quantity of land actually contained in the farm.

Assuming that according to the proof, there were from twenty to twenty-three acres less than the quantity mentioned in the contract, we shall proceed to consider. whether, upon the facts and circumstances of the case as disclosed by the record, the appellee is entitled to any abatement for such deficiency. We agree with the judge of the Superior Court, in overruling the appellants’.exceptions to the parol testimony offered by the appellee, for the reasons stated in his opinion; and upon the authority of Joice v. Taylor, 6 G. & J. 54 ; Kent v. Carcaud, 17 Md. 297 ; Mason v. Crosby, 1 Woodbury & Minot, 342, 353, 354. And in disposing of the question before us, shall consider that testimony as properly in the record. There is great and irreconcilable conflict in the testimony of the witnesses, with regard to the acts and declarations of the parties át the time of the sale.

On the side of the appellee, the proof is that the purchase was made relying upon the positive representation that the farm contained 171 acres, and on the part of the appellants the evidence is just as positive that “ the property was sold regardless of the quantity of *land, that the purchaser, or his son who was present, seemed to know the property as well or better than the vendor, and the exact quantity of land was not made a point of in the negotiation.” If the decision of the case depended entirely upon that testimony, we should feel very great embarrassment in