
    James Moffett, Respondent, v. Rose Jaffe, Appellant.
    Second Department,
    April 23, 1909.
    Pleading —suit to reform contract to sell lands — complaint not stating cause of action — mutual mistake—proper form of alleging act done through, agent.
    A complaint asking the reformation of a contract for the sale of lands by ratably reducing the consideration on the ground that by a mutual mistake of fact the plot contained fewer acres than stated in the contract, fails to state a cause of action where it is not alleged that the sale was based on a price per acre, or that the defendant’s mistake as> to acreage induced her to fix the price, or that she meant to fix the total hy a sum per acre.
    Such intention on the part of the vendor is not shown by a mere allegation that she made a mistake as to the number of acres.
    Allegations of evidence tending to prove a fact are not equivalent to an allegation of that fact.
    A contract may be reformed only to express some material thing on which the parties agreed and meant to put in but left out, or by striking out or changing something they did not mean to express. An allegation - that the vendor’s agent stated that the lands contained a certain number of acres is not an allegation that his principal so stated.
    Although an act is done through an agent, it should be alleged as done by the principal, leaving the method of doing it to the proof.
    Appeal by the defendant, Rose Jaffe, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of December, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint.
    The defendant demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.
    
      Morris Meyers, for the appellant.
    
      Nathan Ballin [Robert E. Moffett with him on the brief], for the respondent.
   Gaynor, J.:

Stripped of verbiage and made lean, the complaint is that the plaintiff and the defendant entered into a contract of sale of a tract of land by the latter to the former for $4,500 under a mutual mistake of fact, alleged to have been made by the defendant’s agents to the plaintiff, that it contained 28 acres, it containing in fact only 24.853 acres; and the prayer is for a reformation of the contract by stating the contract price as $4,025, arrived at by a proportionate reduction by the acre for the deficiency, and for specific performance of the reformed contract.

But there is no allegation that the land was offered for sale or sold at, or that the contract was based onj a stated price the acre by the defendant, but the contrary, i. e., that it was offered and sold as a whole; and the contract is for its sale as a whole at the price of $4,500. It may be that although the defendant supposed there were 28 acres, she would not have sold it for any less if she had known there were only 25 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 defendant’s mistake as to the acreage was what induced her to fix the price at $4,500 instead of at $4,025, or that she meant to fix the total by a certain sum per acre. There is no allegation that the defendant intended that the price should be fixed by or depend on the number of acres. This is not alleged by a mere allegation that she was mistaken as to the number of acres. The complaint alleges various matters of evidence, which might tend to prove the said fact, but that cannot supply the lack of an allegation of it. Mere allegations of evidence in a complaint are out of place and of no avail. The fact which has to be found on the evidence in order to support the action is the thing which is necessary to allege.

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 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. There is no allegation that such price was based by the defendant on a mistake in respect of the acreage, but only that there was a' mutual mistake in respect of the acreage, which might exist without there being any mutual mistake as to the price. A conjecture that the defendant would have asked less or accepted less for the land if she had known it contained only 25 acres cannot eke out a lack of an allegation on which to base such a conclusion.

Eor is there any allegation that the defendant stated that there were 28 acres. The allegation that the real estate agents, her agents, who effected the sale, so stated, is not an allegation that she did. She may have stated the contrary to the plaintiff. The allegation should be that the defendant made the statement to be of any effect, leaving it to the evidence to show how she made it, or whether personally or through another (Kranz v. Lewis, 115 App. Div. 106; Harris v. Baltimore Machine & Elevator Co., 112 id. 389).

The judgment should be reversed and the demurrer sustained, with leave to plead over.

Hirschberg, P. J., Burr, High and Miller, JJ., concurred.

Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plead over on payment of costs.  