
    JOHN STAMPER vs. JOHN D. HAWKINS.
    It is ail established rule of a Court of Equity to grant relief iu cases of a mis* take in matters of fact, when the mistaken fact constitutes a material ingredient in the contract of the parties. But, to authorise this interference, the mistake must be made out entirely satisfactory.
    Where, upon a contract for the sale of land by the acre, it was agreed that it should be referred to a particular surveyor to ascertain the number of acre?, and the surveyor made the survey, but it was impossible to make a plot from his field notes, so as to ascertain the number of acres; Held, that, on the ground of this mistake of the surveyor, either party was entitled to demand a re-survey.
    Cause removed from the Court of Equity of Granville County, at the Spring Term 1849.
    The defendant contracted, in writing, to sell to the plaintiff a tract of land, supposed to contain one thousand acres, at the. price of six dollars per acre* It. was agreed between the parties, that Lewis Reavis should survey the land and ascertain the number of acres. In this agreement, the defendant contracts to deliver to .the plaintifF, within one week, a good and sufficient title in fee simple to “the one thousand acres, (or less, if the whole of the land does not amount to that quantity)”
    The land was surveyed by Reavis, but he delayed making his estimate so long, that the defendant, to enable himself to perform his part of the contract, by delivering a conveyance within the time specified, procured the field notes of the surveyor, plotted the land, and made an estimate of the number of acres. By bis calculation, the tract contained 982 acres and 11-16. On the day appointed for closing the contract, they met; when the defendant apprised the plaintifF, that, in consequence of the delay of Reavis, he had.made the estimates from his field notes, and proffered to convey the land to him, and required payment for the number of acres according to his estimate, at $G per acre. The plaintiff declined accepting the conveyance or making payment, until the estimate should be made by Reavis or some other practical surveyor. The parties then entered into a new agreement, which is as follows: “Articles of agreement between John D. Hawkins and James Stamper. The said John D. Hawkins has this day sold and convej'ed to the said James Stamper, a tract of land in the County of Gran-ville, &c., containing 982 11-16 acres, at the rate of six dollars per acre ; which land has been surveyed by Lewis Reavis ; and it is mutually agreed between the parties aforesaid, that the field notes of the said Lewis Reavis, or a true copy of them, shall be furnished to a competent and accurate surveyor and plotter ; and, if upon a statement made out by such surveyor, the number of acres shall fall short of the quantity in the said deed of John D. Hawkins, then the said Hawkins shall refund to the said Stamper the value of such deficiency, at the rate of six dollars per acre,” &c. This agreement bears dat.e the 27th day of January, 1843. The field notes of Lewis Reavis were put into the hands of Benjamin Summer and Thomas B. Littlejohn by the plaintiff, both of whom were skilful surveyors and accurate plotters, in whom both parties had full confidence, with directions “to plot the said tract of land from the said field notes, and to as* certain and make out a statement of the quantity and number of acres, therein contained.” Upon executing this new agreement, the plaintiff paid the defendant the price agreed on — to wit: six dollars an acre, supposing the estimate of the defendant to be correct. The bill charges, that Mr. Littlejohn and Mr. Sumner each reported, from some error in the field notes, it was impossible to make out a plot or to determine from them, with any accuracy, the quantity or number of acres in the said tract: That this fact was made known to the defendant, with a request, that he would have the land resurveyed, which was declined. The plaintiff then em* ployed Edward Bullock, the County surveyor, to survey the land and ascertain the number of acres, which he ac« cordingly did, and found the number of acres to be 932 acres and 32 poles, less by fifty acres, than what the defendant had been paid for. The bill further charges, that the field notes of Lewis Reavis were mislaid by Mr. Littlejohn and not found by him, until a short time before the filing of the bill. The prayer of the bill is, that the land, if necessary, may be re-surveyed, and the defendant decreed to refund to the plaintiff so much, as it shall appear he has overpaid, with interest, <$*c.
    The answer admits the contracts, as set forth in the bill; and the defendant avers, that fro.m the field notes of Lewis Reavis an accurate plot could be made of the land, sold by the plaintiff, and the number of acres truly ascertained, and that the calculation made by him from them was correct: That in entering into the agree* ment of the 27th of January 1843, it was the understanding, as expressed therein, that in ascertaining the number of acres the calculation should be made from the field notes of Lewis Reavis. He further avers, that the land belonged to Mr. Jones, for whom he -was surety to a large amount, and had been conveyed in trust to pay the debts of the said Jones — those, for which he was bound with others : That, at the Trustee’s sale, he purchased the land in question and immediately thereafter sold it to the plaintiff; and paid the money, received from him, over to the Trustee, and had with him a final settlement; and that this payment was made by him, after waiting some considerable time to enable the plaintiff to have the number of acres in the tract accurately ascertained ; and that the plaintiff ought not to be permitted, after lying by so long, to sustain his claim.
    
      Lanier, for the plaintiff.
    
      Badger, and T. B. Venable, for the defendant.
   Nash, J.

The mistake of the defendant in this case, in refusing to have the land in controversy resurveyed, rest§, apparently, upon an opinion formed by him, that, as the agreement of the 27th of January 1843 required the number of acres, contained in the tract, to be ascertained from the field notes of Lewis Reavis, the parties were bound by them, so that neither was at liberty to depart from them. It is certainly correct, as a general rule, that, where the parties to a contract have reduced its terms to writing, the whole sense of the parties is presumed to be contained in the written instrument, and a departure from it is not allowable. But it is one of the established rules of a Court of Equity to grant relief in cases of a mistake of matters of fact, when the mistaken fact constitutes a material ingredient in the contract of the parties. But, to authorise this interference, the mistake must be made out by proofs entirely satisfactory. Story’s Eq. sec. 151-2-3. In the case before us, the land was sold for so much per acre, and in order to ascertain what the plaintiff had to pay and the defendant to receive, it was essential to have the tract surveyed. Neither party knew, at that time, what it did contain. Lewis Reavis, in whose capacity as a surveyor each had confidence, wass elected, his survey was made, and, upon his delay to make a plot to estimate the quantity of acres, the defendant procured his field notes and made the calculation himself. The plaintiff declined being governed by the defendant’s calculation, and there was no obligation upon him to receive it as correct. After some difficulty, the new agreement of the 27th of January, 1843, was made, and in this it was stipulated, that the field notes of Mr. Reavis should be put into the hands “of a competent and accurate surveyor and plotter,” and from them an estimate should be made. The mistake, upon which relief is to be granted, is, that the field notes of Reavis were supposed to be such, as from them an accurate estimate might be made. It is fair to presume, that, at the time this agreement was entered into, each party believed such to be the fact, and it is clear the plaintiff so thought. The fact, however, turns out not to be so. Both Mr. Littlejohn and Mr. Sumner, the parties selected for their skill and competence, testify, that no approach to accuracy could be made in plotting and estimating the quantity of acres, from the field notes of Reavis ; that the last line could n,ot be made to close the plot. To the same effect is the testimony of Mr. Bullock, the County Surveyor. According to this testimony, then, the agreement of the 27th of January could not be literally carried out — the parties were mutually mistaken in so believing. The substance of the agreement was the accurate ascertainment of the number of acres contained in the tract, and for the purchase of which, the plaintiff had contracted. The survey, ihade by Reavis, was of no value; aud it was absolutely necessary that another should be made. The proposition, made by the plaintiff, to have the land re surveyed, was a proper one, and the only one, by which the contract could be carried into execution ; and it is to be regretted, that it was not acceded to.

The defendant’s allegation, that he had settled with the Trustee, from' who» he purchased, upon an estimation based upon Reavis’ survey ; and that the plaintiff, after waiting the time he has, before filing his bill, ought not to be permitted to call in question its accuracy, cannot avail him. Pie paid the money to the Trustee on his own responsibility, upon an estimate made by himself, tbe accuracy of which he knew was. questioned. The defendant had no, concern or interest in his contract with the Trustee', or with his payment of the money to him ; and to him the defendant must look, if he has paid him more than he was bound to do.

The plaintiff is entitled to the relief he seeks, upon the footing of the mistake in Reavis’ survey. But the Court will n.ot proceed definitely to determine, upon the evidence, the deficiency in the tract of land, as the defendant requires a re-survey ; which is granted according to the eourse of the Court..

Per Curiam.

Decree accordingly.  