
    YATES et al. v. BUTTRELL.
    (Court of Civil Appeals of Texas.
    Nov. 17, 1910.
    Rehearing Denied Dec. 22, 1910.)
    1. Vendor and Purchaser (§ 158) — Contracts — Construction—Subsequent Deed.
    Plaintiff purchased real estate from defendant, the contract providing_ that plaintiff assumed and agreed to pay the lien on the land, “to the sum of $8,000,” but the deed subsequently executed containing covenants of general warranty provided that plaintiff as a part of the consideration assumed the final payment of a certain note for $8,000, executed, etc., which note was secured by a deed of trust on the land, and which had been assumed by defendant, etc. Held, that the parties did not treat the stipulation in the contract as a part of or as intended by them in any way to affect their agreement as evidenced by the deed; and hence, in the absence of any claim of fraud or mistake in the execution of the deed, plaintiff was bound thereunder to pay the note, including accrued interest thereon at the time of the transaction.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Gent. Dig. §§ 318-320; Dec. Dig. § 158.]
    2. Vendor and Purchaser (§ ,158) — Deficiency of Quantity — “More or Less.”
    Where a contract for the sale of land described it as containing 573 acres, a recital in the deed that the tracts contained 573.43 acres, “more or less,” did not prevent the vendee from thereafter showing that the vendors represented that the land had been frequently surveyed and within their knowledge contained 573.43 acres, that the vendee relied on the truth thereof, and that, in fact, the quantity was 39.43 acres short, in an action to recover a deduction from the purchase price at the rate per acre specified in the contract of sale.
    [Ed. Note. — Eor other cases, see Vendor and Purchaser, Cent. Dig. §§ 318-320; Dec. Dig. § 158
    
    Eor other definitions, see Words and Phrases, vol. 5, pp. 4582-4595.]
    3. Vendor and Purchaser (§ 341) — Deficiency in Quantity — Action—Evidence.
    Where a contract for the sale of land described it as containing 573 acres, and the deed described the tract as containing 573.43 acres, “more or less,” the contract of sale was admissible on an issue that a deficiency in quantity existed, for which plaintiff claimed the right to recover a proportional amount of the price.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. § 1013; Dec. Dig. § 341.]
    Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.
    Action by D. B. Buttrell against J. E. Yates and others. Judgment for plaintiff, and defendants appeal.
    Reversed and remanded.
    Orriek & Terrell, for appellants. A. J. Clendenen, for appellee.
    
      
       For other oases see same topic and section NUMBER, in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   WILLSON, C. J.

By a contract in writing dated December 17, 1907, appellants, J. F. Yates and Mike Ditto, in consideration of $25,000 to be paid by Buttrell & Sons, sold to said Buttrell & Sons a tract of land described as 573 acres, known as the S. C. Henderson .farm. In payment of the $25,000 Buttrell & Sons, by the terms of the contract, were to assume and pay as their own a debt secured by a lien on the land, for the payment of which Yates and Ditto had become liable, amounting, it was recited in the contract, to the sum of $8,000; were to convey to Yates and Ditto a house and lot valued at $6,000; and were to convey to them merchandise of the value of $11,000. By a deed containing covenants of general warranty, dated December 18, 1907, Yates and Ditto conveyed said land to appellee D. B. Buttrell, describing it as consisting of. two tracts — one as containing 523.43 acres, more or less, and the other as containing 50 acres, more or less, and the two tracts as containing together 573.43 acres, more or less. Each of the two tracts was further particularly described by its metes and bounds. The consideration for the conveyance, as same was recited in the deed, was the payment by appellee to Yates and Ditto of $17,-000, and “the assumption of final payment by the said D. B. Buttrell of one certain promissory note for the sum of $8,000, executed by C. T. Hodges and wife in favor of the Alliance Trust Company, Limited, on the 20th of April, 1906, which said note is secured by a deed of trust executed on said date by C. T. Hodges and wife in favor of Thos. D. Ross, trustee for the Alliance Trust Co., Limited, which above-described note was assumed by Mike Ditto and J. F. Yates on September 30, 1907; said deed of trust constituting a lien on the land herein conveyed.” In the deed was a recital that the vendor’s lien had been retained “until the above-described note, and all interest thereon, are fully paid according to its face, tenor and effect.” At the date of the deed, interest at the rate of 8 per cent, per annum from January 1, 1907, had been accruing on the $8,000 note, so that same then amounted, principal and interest, to about the sum of $8,616.60. After paying to the owner of the note $8,000 as the principal thereof and the excess above that sum due thereon as interest, appellee brought this suit to recover such excess of Yates and Ditto. He also sought a recovery on account of an alleged deficiency of 39.43 acres in the quantity of the land conveyed to him, and damages for fraud and deceit which he alleged Yates and Ditto had practiced upon him in representing to him that the land was not subject to overflow by waters of streams on which it was situated. In accordance with a verdict of a jury, a judgment was rendered in his favor against Yates and Ditto for the sum of $640, as the interest which had accrued on the $8.-000 note at the time the transaction between him and Yates and Ditto was concluded, and for the further sum of $1,000, on account of a difference the jury found to exist between the number of acres the deed purported to convey and the number it actually did convey.

Appellants insist that the judgment is erroneous in so far as it is for a recovery against them of the $640 paid by appellee as interest on the $8,000 note. We agree that the contention must be sustained. If the contract of sale should be looked to alone as evidencing the terms of the agreement between the parties, Buttrell & Sons became bound to pay only the sum of $8,000 charged against the land, and did not become bound to pay any sum in excess of that, which, as interest accrued thereon, had become also a charge against the land. If the contract of sale and the deed should be construed as one instrument, together evidencing the agreement, as the trial court seems to have regarded them, the intent of the parties would appear to be so doubtful as to present a question for the jury, and as to render other evidence than that furnished by the language of the instruments admissible for the purpose of showing such intent. But in determining the terms of the agreement, so far as appellee’s undertaking in regard to the indebtedness against the land was concerned, we do not think it was permissible to look to the contract of sale at all. The parties, by reference thereto in the deed, did not treat the stipulations in the contract of sale as a part of, or as intended by them in any way to affect their agreement as evidenced by the deed. Notwithstanding, by the contract of sale, appellee had bound himself to pay only $8,000 of the indebtedness against the land, he had a right afterwards to bind himself by an undertaking to pay other indebtedness against it. Whether he did so or not, in the absence of pleadings by him setting up fraud or mistake, should have been determined by a reference alone to the language of the deed, if same was unambiguous with respect to such undertaking. Eor the recital in the deed that he had assumed the payment of an indebtedness against the land as a part of the consideration for the conveyance thereof to him was a contractual one; and therefore was not subject to be varied or contradicted, as would have been a recital as to the payment of a cash consideration. Walter v. Dearing, 65 S. W. 380; Cage v. Perry, 38 S. W. 544. We think the language of the deed with respect to such undertaking by him was unambiguous; and therefore that it was the duty of the court to construe its meaning. It evidenced an undertaking on the part of appellee to pay not only the sum of $8,000 representing the principal of the note, but ■ in addition thereto to pay all interest which, by the terms of the note, had accrued on that sum. His undertaking was to pay the note. The. interest which, by the terms thereof, had accrued, was as much a part of the note as was the principal sum itself. This being, we think, the effect which should be given to the language of the deed, appellee, without alleging and proving either mistake or fraud as a ground for it, was not entitled to be heard to say that his undertaking was otherwise than to pay the note according to its face and tenor. As he did not allege that the stipulation in the deed, on account of either fraud or mistake, was stated otherwise than by the agreement between himself and the appellants it was to be, he was not entitled to relief on account thereof, and the court should have so instructed the jury.

Appellants further insist that the judgment rendered was erroneous, in so far as it was for a recovery against them on account of a deficiency found by the jury to exist between the number of acres specified in the deed as thereby conveyed and the number of acres actually thereby conveyed. The quantity specified in the deed as thereby conveyed was “573.43 acres, more or less.” Such language in a deed, in the absence of an allegation and proof of fraud or mistake entitling a party to show to the contrary, should be construed to mean that the parties respectively intended to risk “a gain or loss” in the quantity as stated. Rich v. Ferguson, 45 Tex. 396; Watson v. Cline, 42 S. W. 1038. In his petition appellee alleged that appellants represented to him that the two tracts described in the deed were adjacent to each other and together contained 573.43 acres; that same had been frequently surveyed and within their knowledge contained that quantity. He further alleged that he relied upon the truth of such representations and paid appellants for that quantity at the rate of $44.71 per acre, when in fact there were 39.43 acres less than 573.43 acres in the two tracts conveyed to him. These allegations, we think, were sufficient to entitle appellee to show, notwithstanding the use in the deed of .the words, “more or less,” in stating the quantity thereby conveyed, that the conveyance to him was of a less quantity of land than by the agreement between him and appellants was to be conveyed to him for the consideration paid by him. Franco-Texan Land Co. v. Simpson, 1 Tex. Civ. App. 600, 20 S. W. 953; Sibley v. Hayes, 96 Tex. 84, 70 S. W. 538; Hatch v. De la Garza, 7 Tex. 60. In view of the fact that the cause is to be remanded for a new trial, we will not discuss the testimony relied upon to support the allegations referred to, further than to say that we do not think the court erred- in submitting to the jury the issue made by the pleadings as to a deficiency in quantity of the land conveyed by the deed. We are of the opinion that the assignments attacking the judgment as erroneous in the particular specified in this paragraph should be overruled, as should also the assignment complaining of the action of the court in admitting as evidence in the case the contract of sale entered into between the parties. Said contract, we think, was admissible as evidence on the issue made by the pleadings as to a deficiency in quantity of the land afterwards conveyed by the deed.

The judgment is, re versed, and the cause is remanded for a new trial:  