
    Samuel Sheindelman and Isaac Parshelsky, Respondents, v. Minerva Colyer, Defendant, Impleaded with Ernestus Gulick, Appellant.
    Second Department,
    November 22, 1907.
    Beal property — contract to sell at price per acre — when binding on vendee — guaranty — liability on principal’s failure to convey.
    A contract for the sale of lands which are inclosed by visible bounds and are described as being about eighty acres, bounded by the lands of certain other owners, which does not name the total purchase price, but merely the price per acre, the acreage to be determined by a survey to be made at the joint expense of the parties, is binding upon the vendee although the tract is found to contain, ninety-five instead of eighty acres.
    
      Hence, when the assignee oí the vendee has made a contract to sell the lands when acquired, the performance of which contract is secured by the guaranty • of a third person, “except in case the original vendor’s contract shall not be fulfilled ” without fault of the assignee, the surety is liable on the failure of the assignee to take title and reconvey because of the greater acreage.
    Appeal by the defendant, Ernestus G-ulick, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 5th day of March, 1907, upon the decision of the court, rendered after a trial at the Kings County Trial Term, a jury having been waived.
    
      Manasseh Miller, for the appellant.
    
      Herman S. Bachrach, for the respondents.
   Hooker, J.:

On January 30,1906, Nicholas Clements as vendor agreed to sell to Florence C. Smith, the assignor of the defendant Colyer, and Smith agreed to buy a certain lot of .land with improvements thereon, which was described in the written contract as being on the southerly side of Hempstead turnpike west of Lynbrook road and being bounded on the East by land now or late of Kinsey, on the South by lands now or late of Kalb, and on the West by lands now or late of one Kiefer, and containing within said bounds about eighty acres and having at least nineteen hundred feet on Hemp-stead Turnpike. The said premises being now occupied by the original vendor.” The price was $1,000 per acre, and nowhere in the contract was the total purchase price mentioned, that evidently being left to computation when it should be determined how many acres were in the tract of land. It was also provided that The area of said farm shall be determined by a survey thereof to be made by Thomas Y. Smith, C. E., and the expense of said survey shall be borne equally by the parties hereto.” Later, and before the time set for the transfer, the vendee Smith assigned her rights under this contract to the defendant Colyer, who thereafter entered into an agreement with Lena Bubin, the plaintiffs’ assignor, to sell to her the same land, which in the agreement was similarly described; the price was stated to be $1,500 per acre, and nowhere ill the contract was the total purchase price mentioned, the reading of the contract leaving it apparent that the total purchase price could not be computed until the exact acreage should be determined. The contract likewise contained a statement that the area of the farm was to be determined by a survey by Thomas Y. Smith, C., E., and the expense thereof to be borne equally by the parties to the contract. To induce the vendee Rubin to enter into the contract the defendant Gulick executed and delivered to* her upon sufficient consideration a guaranty in which it was provided that the defendant Gulick does “ hereby guarantee the fulfillment of the within contract by Minerva Colyer, except in case the original vendor’s contract shall not be fulfilled with the said Minerva Colyer; provided, however, such failure shall not be brought about nor shall be through the fault of the said Minerva Colyer, the vendor under this contract.” The plaintiffs’ assignor deposited $5,000 with the defendant Colyer as part of the purchase price of the premises and on the day mentioned in the contract when the deed should be passed offered to perform, but title did not pass owing to the inability of the defendant Colyer to convey title, for she had not as yet obtained her deed from the original vendor Clements, the reason for which will appear later. This action is to recover from both defendants the sum of $5,000 so deposited, together with the expenses which the plaintiffs’ assignor incurred in examining the title. The trial resulted in a verdict for the. plaintiffs, and the defendant Gulick appeals.

The inspection of the contract of guaranty will disclose that the appellant was to be relieved of fulfillment on account of the fault of his principal, the defendant Colyer, and this brings us to an examination of the facts," that it may be determined whether the failure to close the title between Clements and Colyer, the vendee’s assignee, was through the fault of Clements 'or Colyer. Pursuant to the contract, a survey was actually made of the farm, and it was found that the acreage was between ninety-five and ninety-six, instead of “ about .eighty.” At the time mentioned in the contract for the delivery of the deed by Clements, he was prepared to execute, but defendant Colyer refused on the ground that under the contract she was not compelled to take title to and pay for nearly ninety-six acres. It was conceded that the survey was accurate, and that there were actually between ninety-five and ninety-six acres, in the farm, which, it will be remembered, was described in the contract as being bounded by the lands of three adjoining owners. The land which was the- subject of the contract was defined in extent, and was capable of actual visual determination; it is- apparent that no one was deceived in' respect. to the amount of the land which it was proposed to sell by the statement “ Containing within said bounds about eighty acres,” and we do not think that the insertion of this clause was- indicative of any intention of the parties that either party should be relieved of the obligations of the contract if the survey thereafter provided to be made should disclose a substantial variation either way. It is to be noted that there was no provision in the contract between- Clements and Smith that in any event the purchase price should be no more than a stated sum, nor that either party should be relieved of the contract if the survey showed more than a certain number of acres. The cases cited by the appellant deal with situations where it was provided in the contract that the purchaser should have a given amount of land or substantially such. That is by no means this case, for as we construe the contract between Clements and Smith it provided for the sale by Clements and the purchase by Smith of all of the land within the stated boundaries, and for a consideration of $1,000 per acre, the acreage .to be determined by the survey therein .provided for.

It is apparent, therefore, that under the facts as stipulated .upon the trial of this case, the failure in the fulfillment of the contract between Clements and Smith, the original vendor’s contract, was through the fault of the defendant Colyer; hence the appellant was not relieved of the terms of his guaranty, and the judgment in plaintiffs’ favor must be affirmed, with costs.

Woodwabd, Jems and Milleb, JJ., concurred; Hiesohbeeg, P. J., not voting. . •

Judgment affirmed, with costs.  