
    Martin et al. v. Peddy.
   3?ish, P. J.

1. In a sale of timber growing upon land, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. See Civil Code, § 3542. This is true although both parties have an equal opportunity to judge for themselves as to the number of acres, and act in good faith.

2. If a sale of growing timber be at a stipulated price per acre, a given portion of the purchase-money to be paid in advance, the balance when half the number of acres — to be determined by a survey — shall be cut by the venadee, and upon such a survey it is ascertained that the actual number of acres sold, at the agreed price, aggregates a sum less than the amount paid in advance, the vendee may recover such difference from the vendor.

3. In such a case the provisions of the Civil Code, §§ 3974, 3983, and 3984, as to when relief will be granted in equity for a mistake of fact,- are not applicable.

4. In a contract of sale of .growing timber for sawmill purposes, the words “one certain lot of yellow pipe timber for sawmill purposes ” mean timber suitable for sawmill purposes.

Submitted July 16,

Decided August 12, 1904.

Assumpsit. Before Judge Parker. Johnson superior* court. December 7, 1903.

U. I. Stephens, for plaintiffs in error. J. L. Kent, contra.

5. That the judge, on the trial of a ease, declines ‘to permit counsel to read, a decision of the Supreme Court, which, in the opinion of the judge, is not applicable to the facts of the case on trial, is not cause for a new trial. Nor is it error for the judge to state, in the presence of the jury, that a given decision is not applicable to the case on trial.

Judgment affirmed.

All the Justices concur, except Evans, J., disqualified.  