Sec 190

By the Roman law, an error as to quantity only pro tanto invalidates. In unilateral contracts, the contract, when two sums conflict, is held good for the lowest sum. If, for instance, one party offers 50, and the other accepts 30, the contract binds for only 30.2-In cases of bilateral contracts a more complex rule is applied. When the error is as to the price, no contract is effected when less is promised than is demanded, since here there was no union of wills.3 But where more, under mistake, is promised than was offered, then the contract is good for the lesser sum, since as to that sum there was reallyan agreement of minds.4 When the error relates to the thing, then there is to be a distinction between a particular thing whose quantity is designated, and the designated quantity by itself. Fifty acres of land, for instance, are sold at so much an acre, when, in fact, fifty acres cannot be given, the owner not possessing so many. Here the vendee, if the contract is not rescinded, may recover the difference in value.5 And Error as to quantity or price only pro tanto invalidates.

How. 149 ; Day v. Pool, 52 N. Y. 416 ; Freeman p. Knecht, 78 Penn. St. 141; to which may be added Scranton v. Trading Co., 37 Conn. 130 ; Voorhees v. Earl, 2 Hill, 288; Vanleer v. Earle, 26 Penn. St. 277. In Freeman v. Knecht, ut supra (a horse case), it was held that, if there was fraud, the vendee might rescind.

1 Leake, 2d ed. 176, 318. That a promise is to be construed in the sense in which the promisor knew it was taken by the promisee, see infra, sec 657.

2 L. 1, sec 4, 5 D. de verb. ob. 45, 1.

3 See Greene v. Bateman, 2 Wood. & M. 362.

4 Infra, sec 601, 898; L. 52, D. locate (19, 2) ; Brown on Sales, sec 223 ; Story on Cont. sec 540; Hart v. Mills, 15 M. & W. 85 ; Henkel v. Pape, L. R. 6 Ex.

7 ; New York Tel. Co. v. Dryburgh, 35 Penn. St. 298.

5 See infra, sec 898 et seq.; Tarbell v. Bowman, 103 Mass. 341; Wilson v. Randall, 67 N. Y. 338; Melick v. Dayton, 34 N. J. Eq. 245. Parker, J., Melick v. Dayton, 34 N. J. Eq. 249, says:-.

"If a vendor fraudulently represents the number of acres to be greater than the actual number conveyed, and thereby induces the vendee to give more for the tract than he otherwise would, the vendee is entitled to an abatement.

"Abatement will also be made where there is a gross mistake. Gross mistake is where the difference between the actual and the estimated quantity of land represented is so great as to clearly warrant the conclusion that the parties when a party sells a particular farm, saying that it contains fifty acres, the contract is good for the farm, and the deficiency in quantity, if the price was adjusted to the quantity, must be accounted for by reduction of price.1 When a particular measure is promised, the error can only take place in the delivery. The actual amount contracted for must be delivered, or the contract will not be properly fulfilled; and if an excess is delivered, the excess must be returned.2 In our own practice, when a conveyance by mistake fails to include a part of the property bargained for, a bill for its reformation will be maintained.3 But when a thing is sold in the mass, and the statement as to quantity is a mere conjectural opinion, then there can be no recovery of damages for the deficiency.4 Hence, a contract for the sale of land, even though it contains a general estimate of the amount of acres in gross, will not be rescinded because the area actually passing is a little less than what the contract describes, the difference being slight and would not have contracted had they known the truth.

"The least certain and least material parts of a description must give way to the more certain and material, and the mention of a number of acres after a certain description of the subject by metes and bounds, monuments or possession, is but matter of description, and not of the essence of the contract, and the purchaser takes the risk of quantity, where there is no fraud nor gross mistake.

" If the description calls for so many acres, ' more or less,' and the quantity falls short or overruns a little, no compensation is to be given either party, where there is not proof of fraud.

" Mere enumeration of quantity of land at the end of a particular description of premises by courses, distances, boundaries, and monuments, is matter of description only, and is subject to the controlling parts of the description, and if the purchaser has the distinct thing for which he contracted, the court will not interfere, if there be a deficiency in the contents not grossly large, unless there be proof of deception by the vendor. See Clark v. Carpenter, 4 C. E. Gr. 328; Couse v. Boyles, 3 Gr. Ch. 212 ; Weart v. Rose, 1 C. E. Gr. 290; Andrews v. Rue, 5 Ur. 402; 4 Kent's Com. 466 ; 1 Story's Eq. Jur. sec 141; Mann v. Pearson, 2 Johns. 37 ; 3 Wash. on Real Prop. (3d ed.), *630."

1 Koch, op. cit. 139, citing L. 120, D. de verb. ob. (45, 1).

2 Ibid.

3 Bispham's Eq. sec 190; Rand v. Webber, 64 Me. 191 : Johnson v. Johnson, 8 Baxt. 261. See on the several questions in the text Kelly v. Solari, 9 M. & W. 54; Haven v. Foster, 9 Pick. 129 ; Watts v. Cummins, 59 Penn. St. 84; and cases cited infra, sec 898 et seq.

4 McLay v. Perry, 44 L. T. N. S. 152, cited infra, sec 215, cf. infra, sec 902. See McKenzie v. Hesketh, L. R. 7 Ch. D. 675, cited infra, sec 900. As to liability for conjectural opinion see infra, sec 260.

unimportant;1 though it is otherwise, as we have seen, when quantity is essential to the fitness of the thing sold for the object of purchase.2-When the description of an estate sold by auction, by mistake contained a much greater area than was intended by the vendor, who was guilty of no negligence, it was held that specific performance would not be compelled as to the excess thus included by mistake;3 and in such case the vendee must submit to take the lesser amount or to have the contract annulled.4-As will be hereafter more fully seen, the words "about," and "more or less," indicate that the parties are not bound by the precise figures stated in measurement or valuation.5-Where a wrong price is inserted in a lumping offer for purchase or sale, specific performance will be refused,6 when there is a material mistake in this respect, there being no contract, since the minds of the parties did not agree as to one and the same thing.7-But in respect to both quantity and price, it must appear that the party mistaking was not negligent in falling into the mistake.1 Otherwise there is, if not an estoppel, an independent liability for negligence.2

1 Infra, sec 902; Stebbins v. Eddy, 4 Mason, 414; Noble v. Googins, 99 Mass. 231; Mann v. Pearson, 2 Johns. 37; Morris Canal v. Emmett, 9 Paige, 168 ; Smith v. Evans, 6 Binn. 102 ; see Johnson v. Johnson, 3 Bos. & P. 170; Ladd v. Pleasants, 39 Tex. 415 ; Story's Eq. Jur. 12th ed. sec 144.

2 Supra, sec 187 ; 1 Story's Eq. Jur. sec 144; Farrar v. Nightingale, 2 Esp. 639; Levy v. Green, 8 E. & B. 575 ; 1 E. & E. 969 ; Milligan v. Cooke, 16 Ves. 1; Clowes v. Higginson, 1 Ves. & B. 524; Price v. North, 2 Y. & C. 620; Hart v. Mills, 5 M. & G. 85 ; Okill v. Whittaker, 2 Phillips, 338 ; Denny v. Hancock, L. R. 6 Ch. 1; Arnold v. Arnold, L. R. 14 Ch. D. 270; Irick v. Fulton, 3 Grat. 193.

3 Calverly v. Williams, 1 Ves. Jun. 210 ; see Alvanley v. Kinnaird, 2 Mac. &G. 1.

4 Harris v. Pepperell, L. R. 5 Eq. 1. "The converse case occurred in Bloomer v. Spittle, L. R. 13 Eq. 427, where a reservation was introduced by mistake." Pollock, 3d ed. 445 ; and see McKenzie v. Hesketh, L. R. 7 Ch. D. 675 ; Coles v. Browne, 10 Paige, 526. "A contract of sale of an estate may be void by reason of a mistake of both parties as to the acreage, to the extent of rendering the contract in effect substantially different to that intended." Leake, 2d ed. 341, citing Turquand v. Rhoads, 37 L. J. C. 830 ; Price v. North, 2 Y. & C. 620; Aberaman Works v. Wickens, L. R. 4 Ch. 101. When a vendor by mistake sells in a specified lot a larger number of acres than the lot was estimated at the time to contain, and when the price is adjusted at so much per acre, he can recover from the vendee the deficit of price. Jenks v. Fritz, 7 W. & S. 201; Fly v. Brooks, 64 Ind. 50.

5 Infra, sec 902.

6 Leake, 2d ed. 316; Webster v. Cecil, 30 Beav. 62; Wycombe R. R. v. Donnington Hospital, L. R. 1 Ch. 268.

7 Pollock, 3d ed. 449, citing L. 52 D. (19, 2).