
    LEOPOLD vs. SCHNECK.
    A contract was executed for a lump sum for tbe timber on a certain tract of land, described by metes and bounds; held, tbe purchaser could not recover for a deficiency of land caused by a mutual mistake of tbe parties.
    No. 402 January Term, 1885. Error to Common Pleas of 'Schuylkill County.
    The facts of the case appear in the opinion, per
    Bechtel, J.
    Pule to show cause why judgment '■ of non-suit should not be set aside.
    The plaintiff instituted this suit to recover a part of the pur•chase money paid to the defendants as the consideration of a certain timber right. He claims he purchased said right by the acre and paid for more acres than the tract actually contains. After he closed his testimony the defendants asked for .judgment of non-suit, which the Court allowed, hence the above rule. The contract for the sale of the timber right is evidenced by a writing dated February 24th, 1882. This instrument contains nothing that is either doubtful, uncertain ■or ambiguous. It transfers the right to all timber upon “all ■that certain tract of land * * * * bounded and described according to a draft hereto attached;” and the draft is attached. It mentions a round sum ($1,587,) payable in three equal payments of $529 each, as the consideration; makes no mention of any price per acre, although 19 acres and 134 perches is named as the quantity contained in the tract. This ■consideration was fixed by multiplying the number of acres by $80, according to the testimony of ’Squire Hummel. The testimony offered shows that the surveyor made a mistake in his calculations of two acres and 86 perches. There is neither allegation nor proof of any fraud by either of the parties to this transaction, nor is there any evidence of any deceit practiced by the vendors to induce the vendee to enter into the contract of purchase. The plaintiff says that Schultz made the draft at Werner’s request, and that Werner purchased the timber right for him. Schultz, the surveyor, says, that Werner employed him to make the draft, and that he claimed to be a partner of Leopold; he also says that Leopold and Schneck each paid one-half the expenses of survey. From this testimony we are inclined to believe that Surveyor Schultz, who made this draft and calculated its contents, either represented these parties jointly, or he was the agent of Leopold. The purchase money specified in the contract has all been paid by the plaintiff, the last payment being made nine or more months before this suit was instituted. Can the plaintiff recover upon this showing? Jenks vs. Fritz, 7 W. & S., 201, would seem to sustain the plaintiff’s contention. But an examination of the facts shows that the vendee defended against the payment of the purchase money, and was not in the position of seeking to recover a deficiency as an original and independent ground of action. In Farmers’ Bank vs. Galbraith, 10 Barr, 490, the vendor’s surveyor made the draft upon which the quantity contained in the tract was written, the land was exposed to sale and this draft' exhibited to the purchaser; the purchase was by the acre, and the purchase money was paid, and suit was instituted by the vendee, to recover back for a deficiency; the error arose from an erroneous calculation of the surveyor. C. J. Gibson said “the execution of a conveyance is the consummation of a purchase; after which the parties have no recourse to each other except for imposition or fraud” * * * * “Mutual misapprehension is not a ground to recall a contract which is past and gone.” Jenks & Fritz was cited and relied upon by counsel in the argument of this case. “Where (say the Supreme Court) a contract is executed by deed and bond or other security taken for the unpaid purchase money, the rule is not to open a contract so far executed, to allow for deficiency of quantity, nor can there be a recovery for excessCoughenour’s Administrators vs. Stauft, 27 Smith, 195. In this case the Chief Justice cited and commented upon numerous authorities bearing upon this subject and among others approved of the Farmers’ Bank vs. Galbraith. See also opinion of Justice Sharswood in Kreiter vs. Bomberger, 1 Norris, 63.
    In the case before us the surveyor was as much the agent of the plaintiff as of the defendants, and the contract was as fully executed as it ever can be, for a period of nine or more months before this suit was instituted. Therefore, in the absence of fraud, we cannot understand upon what ground the plaintiff can recover. But he claims that he purchased personal property and that the rule differs when the subject of purchase is personalty. We cannot thus understa nd the authorities, but believe that the question is not whether the purchase is of realty or personalty, but whether the contract has been fully executed. We understand this to be the conclusion of Justice Lewis when in McCrea vs. Longstrethno Harris, 321, in which the subject of purchase was personalty, he said : “After the whole contract has been fully executed by the parties, the expression adopted by Yeates, J. in Steinhauer vs. Witman, 1 S. & R, 448, is peculiarly applicable, ‘the funeral has passed by, the dead cannot be resuscitated.’
    And, now, January 19th, 1885, rule discharged.
    Leopold then took a writ of error, complaining of the entry of the non-suit, and of the refusal of the Court to strike off the same.
    
      
      F. W. Bechtel and I J. Lichtenberg, Esqs., for plaintiff in error,
    argued that the parties intended the price should be $80 per acre, and there was a mistake by the surveyor whereby the whole sum was increased; and the mutual mistake of all parties should be corrected. They cited: Marriott vs. Hampton, 2 Smith’s Leading Cases, * 393; Ege vs. Koontz, 3 Pa., 119; Boas vs. Updegrove, 5 Pa., 516; George vs. Tallman, 5 Lansing, 392; Wheadon vs. Olds, 20 Wend, 174. The subject matter in this case is personalty, not real estate.
    
      W. F. Shepherd, Esq., for defendant in error,
    argued that the prior negotiations were merged in the executed agreement.
   The Supreme court affirmed the judgment of the Common Pleas on May 11th, 1885, in the following opinion:

Per Curiam.

There was no fraud in this case. It was a mutual mistake as to the number of acres. The conveyance was the consummation of the purchase. Mere mutual misapprehension is not sufficient ground to recall a contract which is fully executed. In the present case there cannot be a recovery by the plaintiff for a deficiency of quantity, nor could there have been by the defendants had there been an excess.

Judgment affirmed.  