
    James Paul, Respondent, v. Allie D. Swears, Appellant.
    Third Department,
    May 4, 1910.
    Vendor and purchaser — equity—farm — false statement as to acreage — sale in bulk—no waiver of fraud—material variance.
    A suit for specific performance may be maintained by the vendor of land to compel payment of the purchase price.
    A vendor who, with knowledge of the fact that his farm contains not to exceed forty acres, knowingly signs a contract of sale stating that it contains forty-eight acres, more or less, and, intending that the purchaser shall rely thereon, fails to disclose the misstatement is guilty of fraud.
    That the sale was in gross and not by the acre does not deprive the purchaser of his fight to relief.
    Where.it appears that the purchaser desired to purchase a farm of from fifty to one hundred acres, and that it was only with difficulty tliat he was persuaded to agree to buy the plaintiff’s farm, the plaintiff cannot maintain that the dis- ' crepancy in the quantity of land, was unimportant.
    Although the purchaser retains possession after knowledge of the fraud, he does not thereby waive his right to damages.
    "Appeal by the defendant, Allie D. Swears, from a judgment of the County Court of. Warren county in favor- of the plaintiff, entered in the office of the clerk of said county on the 13th day of October, 1909, upon the decision of the court rendered after a trial before the court without a jury.
    
      H. A. Howard and James H. Bain, "for the appellant.
    
      Edward M. Angelí and Robert Imrie, for the respondent.
   Cochrane, J.:

This is an-action by a vendor in an executory contract for the sale of. real estate to require specific perf ormarice thereof by his grantee The contract was made June 23, 1908. By its terms the plaintiff agreed to sell to the defendant a farm “ consisting of 48 acres, more or less,” for the sum of $5,500, to be paid when the plaintiff should furnish a warranty deed and a search of the property showing that the same was free and clear of incumbrance. The contract also included substantially all the personal property on the farm. The defendant paid $450 on account of the purchase price and went into possession of the farm July 1, 1908, and has since retained such possession. Plaintiff on July 20,1908, tendered a deed and certified search of the farm and demanded payment of the balance of the purchase price thereof,.which defendant refused to pay unless a reduction was made therefrom because of a shortage of eight acres in the quantity of land conveyed. By the judgment appealed from plaintiff has recovered the balance of the unpaid purchase price of the farm, amounting to $5,050, less a deduction for a small part of said personal property which the plaintiff failed to deliver, there being under tlie terms of the contract of sale no other specific performance which defendant could make than the payment, of the purchase price. Such an action is maintainable in equity. (26 Am. & Eng. Ency. of Law [2d ed.], 106.)

The answer alleges fraud on the part of the plaintiff in representing that the farm contained forty-tight acres when in fact it contained only forty acres. The learned county judge has found as a fact that no such fraud was perpetrated. This finding is challenged by the defendant.

The defendant applied to a firm of real estate agents for.the purchase of a farm containing from fifty to one hundred acres. They offered him the farm in question and represented that it contained forty-eight acres. Their information was obtained from a former owner who, without their knowledge, in the year 1906 had sold the farm toXplaintiff. On discovering that plaintiff was the owner they placed, themselves in communication with him, and he offered to sell the farm with the stock and implements thereon for $6,500. Defendant went over the property on two or three occasions and made a careful examination thereof. He was introduced to the plaintiff by one of the real estate agents and after some negotiations and considerable difficulty in reaching an agreement as to the price, which' agreement was finally effectuated only by the agent promising plaintiff that he would reduce his commissions from $300 to $150, the contract in question was executed. The agent liad previously informed the defendant that the farm contained practically fifty acres, and the latter had no information to the contrary, and bought the property relying on such statement and on the terms of the contract that the farm contained forty-eight acres, more or less.. A surveyor called by the defendant as a witness at the trial testified that thé farm contained about thirty-eight acres and there was no evidence to the contrary.

When plaintiff bought the farm in 1906 he procured a certified search thereof' showing that it contained forty acres, which search, with the subsequent additions necessary to bring it down to the time'of the transaction in question, was the same search which he tendered to the defendant in fulfillment of his contract. Plaintiff also testified that he bought the farm for forty acres; ” .that he read the contract wherein he.agreed to deliver to the defendant forty-eight acres, more or less, and that he “ did not tell defendant there wasn’t forty-eight acres of that property there.”

It thus appears that with knowledge that the farm did not contain more than forty acres plaintiff sold it to the defendant representing that it contained forty-eight acres. Ordinary business fairness required that. plaintiff should state accurately in his contract the size of his farm as he understood it. The statement in the contract that it contained forty-eight acres was false and was known to the plaintiff to be false, and, willing that the defendant should rely thereon and be deceived thereby, he permitted the latter to rest under such misunderstanding when.it was his plain duty both, in law and ethics to correct the statement which he knew to be false and prejudicial to defendant. In my opinion the facts constitute a ease of fraud, and the finding of the County Court to the contrary was not only against the weight of évidence but is against the admitted facts. It is of no consequence whether or not the plaintiff is responsible for the misstatement of the • real estate agents. He is responsible for his own misconduct in selling forty-eight acres when he was aware that he had no right to represent more than forty acres in the contract which he signed.

The fact that the sale of this farm may have been in bulk and not with reference to the exact acreage does. not affect this question. If there had been no fraud in this transaction perhaps the defendant would have no grievance on the theory that he purchased the farm as an entirety and without reference to the exact number of acres which it contained. But the authorities holding that proposition do not sanction a fraud or render a vendee immune from relief when he has been made a victim thereof, even though the sale was in gross rather than by the acre. This was expressly held in Thomas v. Beebe (25 N. Y. 244), the head note reading as follows : “ When the fraudulent representations relate to the quantity of the land, it is immaterial whether the sale is in gross or by the acre.” The case of Sprague v. Griffin (22 App. Div. 223), relied on by plaintiff, observes this clear distinction.by the following statement in the opinion : “ Representations by the vendor of a tract of land in regard to the quantity, where the sale is for a gross sum, do not in the absence of fraud bind the vendor to make compensation for any deficiency in the quantity. (Johnson v. Taber, 10 N. Y. 319.)”

But it is said that the discrepancy in the quantity of land was neither essential nor important. This farm Was composed entirely of tillable lands, homogeneous in respect to quality. Clearly, forty acres does not possess the same value as forty-eight acres of the same kind of land. If evidence to that effect is necessary, such, evidence was introduced at the trial. . Defendant- was seeking a farm of from fifty to one hundred acres. He supposed he was purchasing about fifty acres, when in fact he was receiving less than forty acres. It was only after strenuous efforts that the minds of the parties met as to the purchase price. It cannot be said that the difference in acreage did not influence the defendant in making this contract. Plaintiff is in no position to urge that argument after having willfully withheld from the defendant correct" information as to the acreage. The only rational explanation of his conduct is that in his opinion if he told the truth he might lose the sale, and his argument now that his deception was immaterial is at war with his conduct in practicing such deception. The same argument might have been used in Thomas v. Beebe (supra), where the discrepancy in acreage was not as great as here in proportion to the land involved.

It is further contended that the defendant, by remaining in possession of the farm after knowledge of the fraud, has- placed it out of liis power to resist this action. He lias undoubtedly deprived ’¡limself of the right to .rescind the contract, but. a defrauded vendee' may ratify the contract and recover liis damages because of the fraud- oi counterclaim the same' against the purchase price. The defendant has been deprived of the Tight to either of these latter remedies because of -the error of the.court below in finding that there was an absence of fraud.

It is. said that the contract was prepared for plaintiff by his agent, and. that the plaintiff in signing it did not realize the consequences of liis. act. We. are glad to adopt this-view of the case, because,. while it does not relieve plaintiff of the-legal effect of his. act, it exonerates liim from the charge of intentional wrongdoing.

The-judgment should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event:

All concurred.

Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.  