
    LITCHFIELD COUNTY,
    AUGUST TERM, A. D. 1775.
    Mott v. Hurd.
    A promise to pay or discount for what a tract of land shall fall short of the quantity in the deed, not within the Statute against Frauds and Perjuries.
    Action of assumpsit, declaring — That in April, A. D. 1772, the defendant sold to the plaintiff sixty-eight acres of land for £200; that at the time of said bargain and sale it was agreed by the plaintiff and defendant, that if said tract of land exceeded sixty-eight acres, the plaintiff would pay in proportion for the excess, and if it fell short of that quantity, the defendant would deduct in the saíne proportion from said sum of £200; that in consideration of the agreement aforesaid, the defendant assumed and promised to deduct from said sum of £200 in proportion to what it should fall short; that thereupon the defendant gave a deed of said land to the plaintiff and the plaintiff executed his note to the defendant for £200; and that said tract of land falls short sixteen acres of sixty-eight acres, whereby the defendant became liable to pay for said deficiency by deducting it from said £200, which he refuses to do, etc. The defendant plead in bar, the Statute against Frauds and Perjuries, and that said promise was not reduced to writing, etc. Demurrer.
    Judgment — That the plea is insufficient.
    The case of Gillet v. Burr, determined at the adjourned Superior Court, at Hartford, December A. D. 1773 was cited, which was an action of assumpsit, declaring, that in consideration the plaintiff would give the defendant a deed of a certain tract of land, and call it fifty acres, more or less, and take his note for the same at fifty-fire shillings per acre, and would also agree, that if said land upon being measured should fall short of that quantity, the plaintiff would discount it upon said note at the same rate per acre; the defendant agreed and promised to pay the plaintiff in the same proportion for whatever said land should exceed fifty acres; that accordingly the plaintiff gave a deed of said land to the defendant and took his note ..as aforesaid; and that said land upon an accurate mensuration was found to exceed fifty acres, seventeen acres and a half, amounting to £48 2s. which the defendant has never paid although he has been notified thereof and the same been often requested, etc.
    Plea — Nonassumpsit. Issue to the jury — and verdict for the plaintiff to recover.
   In tliis case there was no written note or memorandum of tlie agreement and promise. A motion in arrest was made, 1st, That tlie parol agreement was absorbed by tlie giving of tlie deed; 2d, No time is set or person appointed, when, and by whom said land should be measured; 3d, That a special notice and request was necessary to entitle the plaintiff to an action, which is not laid in the declaration to have been given or made.

The court determined the motion to be insufficient and the plaintiff had judgment.  