
    William H. Sweet, Respondent, v. Martha J. Marsh and Mary E. Benedict, Appellants.
    Second Department,
    June 11, 1909.
    "Vendor and purchaser — contract to sell land — reformation—pleading — acreage —judgment to conform to pleadings.
    Where in a suit to reform a contract to sell land and for the specific performance of the contract as reformed, the complaint alleged that defendants were the owners in fee and possessed of a certain farm consisting of 200 acres, more or less, and more particularly described in a certain deed of record; 'that they made a contract to sell the farm with the buildings thereon to plaintiff, describing it as containing 200 acres, more or less"; that the farm contained only 132 acres, but did not allege that the defendants intended that the price should be fixed by or depend on the number of acres, or that there was any fraud in the transaction, a reformation of the contract is not justified.
    Parties go to court to try the issues made by the pleadings, and courts have no right to make new issues for them on the trial to their surprise or prejudice, or to found j udgments on grounds not in issue.
    A provision that the sale included “buildings and improvements” on the land indicates that there were other considerations in the minds of the parties besides the acreage.
    There might exist a mutual mistake as to.acreage without there being a mutual mistake as to price.
    Where it is shown that the description of the farm in the deed and the contract as 200 acres, more or less, referred for a more particular description to a prior deed, which gave the amount of land as 125 acres; that the plaintiff drew the contract and both defendants deny that they understood the contract to mention 200 acres, and its entire language indicates a sale in gross, a judgment reforming the contract will be reversed.
    Where land is described by metes and bounds and the description designates its quantity as so many acres, more or less, a sale in gross is indicated, even where the price named is an exact multiple of the number of acres named.
    Hirschberg, 3?. J., and Rich, J., dissented.
    Appeal by the defendants, Martha.J. Marsh and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of July, 1908, upon the decision of the court rendered after a trial at the Westchester Special Term.
    
      Henry Marshall, for the appellants.
    
      William L. Rumsey [Robert E. Farley with him on the brief], for the respondent.
   Woodward, J.:

This action was broúght for the reformation of a contract for the sale of a tract of farm land near the village of Mount Kiseo, Westchester county, and for the specific performance of the contract as reformed. The complaint, in so far as it is material to the question here under consideration, alleges that the defendants were the owners in fee and possessed of All that certain farm, consisting of two hundred (200) acres, more or less, located in the Town of North Castle, County of Westchester and State of New York, the Same being more particularly described in deed dated the 27th day of May, 1889, from Simeon S. Carpenter, Alonzo E. Carpenter and Jothám Carpenter, executors of the last will and testament of Aaron F. Carpenter, to Martha J. Marsh and Mary E. Benedict, and recorded in the Westchester County Register’s office on the 27th day of May, 1889, in Liber 1168 of Deeds, page 64; ” that on' the 16th day of December, 1905, the defendants entered into an agreement with this plaintiff for the sale of the above-described real property, a copy of which agreement is annexed to the complaint and made a ¡Dart thereof; that since making the said agreement the plaintiff has discovered that there is a deficiency in the acreage of the premises' described therein, and that the same are not of the dimensions specified in said agreement, to wit, that instead of embracing a tract of land of 200 acres said premises contain only about 152 acres of land; that the plaintiff has always been ready and willing, and is'still ready and willing, to fulfill his part of the contract; that he appeared at the proper time and place prepared to fulfill, and that the defendants did not put in an appearance, and were unable to perform the agreement, in that they were not prepared to give a deed for more than 152 acres. After alleging damages caused by the'purchase money lying idle and unproductive, the searching of title, etc., the complaint demands judgment that “ a fair, -reasonable and just deduction from the purchase money of said contract, ‘ Exhibit A,’ be made on account of said deficiency in acreage* - * * * and that on payment of the said residue of said purchase money, less said deductions, the defendants be decreed specifically to perform said agreement,” and that if they are unable or unwilling, to perform the contract that the plaintiff have damages, etc.

There is no allegation that the land was offered for sale or sold, at, or that the contract was based on, a stated, price per acre by the defendants; on the contrary, the agreement, which is made a part of the complaint, provides that the “ parties of the first part' [the defendants] agree to sell and convey, and the party of the second part agrees to purchase, all that lot or parcel of land in the County of Westchester and State of Mew York, with the buildings and improvements thereon, described as follows:” (Here follows the same description, by reference to the deed, as is contained in the body of the complaint.) The instrument, then excepts from the contract a certain buryinglground, with' a right of way, the dimensions of which are hot given, and continues: “ The price is thirteen thousand five • hundred dollars ($13,500), payable as follows : ” (Here the terms are set out.) It may be,, as said by Mr. Justice Gtayho'r in a very similar case (Moffett v. Jaffe, 132 App. Div. 7), that although the defendants supposed there were 200 acres, they would not have sold it for any less if they had known there were only 152 acres, and this is not negatived by any allegation of the complaint, although it is the one essential thing. There is no allegation that the defendants’ mistake as to the acreage was what induced them to fix the price at $13,500 instead of a lower figure, or that they intended to fix the total by a certain sum per acre, and the provision of the contract, including the “ buildings and improvements theyeon,” clearly indicates that there were other considerations than the acreage in the minds of the parties in entering into the same. There is no allegation that the defendants intended that the price should be fixed by or depend on the.number of acres. This would, not be alleged by a mere allegation that they were mistaken as to the' number of acres, if this allegation may be spelled out of the complaint, and the rule still prevails that the judgment to be rendered by any court must be secundum allegata et probata ; and this rule cannot be departed from without inextricable confusion and uncertainty and mischief in the administration of justice. Parties go to court, to try the issues made by pleadings, and courts have no right impromptu to make new issues for them on the trial, to their surprise or prejudice, or found judgments on grounds not put in issue and distinctly and fairly litigated.- (Wright v. Delafield, 25 N. Y. 266, 270; Brightson v. Claflin Co., 180 id. 76, 81, and authorities there cited.)

There is no allegation of fraud in the complaint, and in the absence of fraud a contract may only be reformed to express some material thing which the parties agreed upon and meant to put in but left out, or by striking out or changing something which they did not mean to express. There is no allegation in this complaint of anything being left out which was agreed upon, or put in that was not agreed upon. The parties indisputably put in the contract the price which they intended should be paid for the land with the buildings and improvements thereon. There is no allegation that such price was based by the defendants on a mistake in respect of the acreage, but only that there was a mutual mistake in respect to the number of acres, which might exist without there being any mutual mistake as to the price. A conjecture that the defendants would have asked less or accepted less for the land if they had known it contained only 152 acres, cannot eke out a lack of an allegation on which to base such a conclusion. (Moffett v. Jaffe,. supra.)

On the merits the defendants admitted that they were the owners of the premises described; that they entered into the contract; denied the allegations of mutual mistake contained in the amendment to the complaint permitted at the trial, and the evidence shows that the plaintiff, or one with whom he was associated, drew the contract and submitted it to the defendants for signature, and that he read the same to them, though whether all of it was read or not does not appear clear from the evidence, and the defendants both denied upon the trial that they understood that the contract mentioned 200 acres, or that they had ever told any one that the farm contained 200 acres, and the deed which is referred to in the contract as “ more particularly ” describing the premises, does not pretend to contain any such amount. It is to be observed that the contract calls for all that certain farm consisting of two hundred (200) acres, more or less, * * * the same being more particularly described in deed dated the 27th day of May, 1889,” and while it is ho doubt true that these words “more or less” are usually inserted for the purpose of taking care of incidental variations, where the contract refers to a deed of record for a more particular description it may properly be referred to that instrument for the acreage. “ Particularly ”■ is defined by Webster “ in a particular manner ■; expressly; with a specific reference or interest; in particular; distinctly.” That is, “ more particularly described ” is more exactly described, and so we find in the deed referred to that it conveys “ All that certain farm of land, situate in North Castle * * * bounded westerly by the highway that leads from Bed-ford to White Plains; southerly in part by land formerly of Henry Bundle, now of Benjamin Sniffen, and in part by land formerly of Gideon Palmer and now of - Millereasterly by land of Jeremiah Green in part, arid in part by Henry Smith’s land, and northerly in part by land of Charles F. Butler formerly, now of Frederick C. Bead, and in part by land late of Jotham Carpenter, now of the said Aaron F. Carpenter and formerly of Solomon Bundle, containing about one hundred and-twenty-five acres of land. Being the same premises which were conveyed to Aaron F. Carpenter by John W. Mills, referee, by deed dated the 2d day of April, 1870, and recorded in the Westchester County Begister’s office. * * * The premises above conveyed, 6 containing, about one hundred and twenty-five acres,’ it is hereby understood conveys all the farm of land owned and occupied by the said Aaron F. Carpenter, dec’d, in said Town of 'North Castle at the time of his death, be the same more or less.” There is no claim that the contract does not provide for the conveyance of all the land of which the defendants were the owners in fee at the time the contract was made and which is embraced in the above description and where the land is described by metes and bounds, and designates its quantity as so many acres, more or less, a sale in gross is indicated, even where the price named is an exact multiple of the nu-mb'er of acres named. (20 Am. & Eng. Ency. of Law [2d ed.]," 875, and authorities cited in notes.) Here the entire language of the contract indicates a sale in gross; there was no negotiation by the acre, as in Paine v. Upton (87 N. Y, 327); the plaintiff sought a conveyance of “ all that lot or parcel of land * * * with the buildings and improvements thereon/’ which was owned by the defendants, and which they had taken under the executor’s deed referred to in the contract and in the complaint, and the incidéntal mention of 200 acres, where the contract itself refers to the deed for a more particular description, and the more particular description only calls for 125 acres more or less, and it is conceded that the defendants are prepared to convey 152 acres, is not the controlling feature of the contract. The contract, fairly construed, merely calls for the conveyance of the property owned by the defendants under the executor’s deed to.which reference is made, and there is nothing in the "pleadings or in the evidence which indicates that the defendants have not been willing to convey these very premises upon the payment of the agreed price. The plaintiff was not buying 200 acres of land; he was buying the particular property which he pointed out in the contract which he asked the defendants to execute; he asked for the conveyance of 200 acres more or less, as described in a particular deed, and the defendants agreed to convey to him all the property they owned under such deed for $13,500, and there is nothing -in the case to indicate that they would have parted with the “ certain farm” for a less price, and neither the complaint nor the evidence justifies a reformation of the contract, for there is nothing in it to be reformed. The contract is the .contract which the parties agreed upon and executed, and the so-called reformation attempts,to make a new contract for them; to make the acreage — which was not the primary consideration or the subject of negotiation — control the more particulav 'description by metes and bounds contained in the deed to which reference is made.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

Burr and Miller, JJ., concurred;. Hirschberg-, P. J.,,dissented; Bien, J., voted to. affirm on the- opinion of. the court at Special 'Term. ’

Judgment reversed and new trial granted, costs to abide, the final award of costs. ...  