
    *Watkins, &c. v. Elliott & al.
    March Term, 1877,
    Richmond.
    Absent, Anderson, J.
    Mistake — Correction.—A case in which a mistake of one of the parties to an agreement for the adjustment of a matter of account, clearly proved, was corrected; and the account was adjusted according to what the agreement was intended to be.
    This was a suit in equity in the circuit court of Charlotte county, instituted in 1861, by William J. Watkins, suing for the benefit of his trustees, against Allen W. Elliott and Charles C. Henderson’s administrator, to have an account between them settled. It appears that Watkins had made a contract with Henderson, by which Henderson sold to Watkins the timber on a certain part of Henderson’s land, which Watkins expected to saw up for_ certain purposes. The contract, at Watkins insisted, and as it was in fact, was that he was to pay a certain price per thousand feet for the timber he sawed; and according to this view of the contract, Watkins owed him for the timber he had taken from the land, $277.78.
    Some time in 1860, Watkins sold his saw mill and fixtures to Henderson & Elliott for $1,200; and it was removed to the land of Henderson. Very soon after this Henderson became very ill, and in order to have a settlement of the transactions between him and Watkins, Richard V. Gaines, one of the trustees in the deed Ojf Watkins conveying his property for the benefit *of his creditors, entered into a written contract with Allen W. Elliott, acting for himself and Henderson, by which it was agreed that Watkins, instead of paying for the timber at a stipulated price, should be charged at eight dollars an acre of the land on which he was to cut timber, it being supposed there was about fifty acres in the parcel of land; but in fact according to the boundaries of it given by Elliott, and inserted in the agreement, there were one hundred and twenty acres; 'these boundaries including about seventy acres lying inside of a fence enclosing Henderson’s field. The facts in relation to this agreement are stated i'n the opinion of the court.
    In the progress of the suit there was an order for an account; and the commissioner returned his report in which he charged Henderson’s estate with $1,200, the price of the mill, and some other small items, and credited him with the timber at the price per thousand originally agreed upon between Watkins and Henderson, and thus making his estate debtor to Watkins $965.69. To this report the defendant excepted: 1st, To .the small items charged, as being without proof; and 2nd, Because the commissioner had not allowed Henderson’s estate a credit for one hundred and twenty acres of timber at eight dollars per acre, to wit: $960.
    The cause came on to be heard on the 2nd of October 1872, when the court sustained the exceptions of the defendant to the commissioner’s report, and having a statement made showing the debt of the plaintiff reformed according to the opinion of the court, made a decree in favor of the plaintiff for $240, with interest from the 20th of December 1860. And thereupon Watkins’ trustees applied to one of the judges of this court for an appeal; which was allowed.
    
      */. R. Watkins, for the appellants.
    
      W. W. Henry, for the appellees.
   Moncure, P.,

delivered the opinion of the court.

The court is of opinion that the contract, which is the subject of controversj' in this case, being the exhibit marked “B” in the proceedings mentioned, was made under a mutual mistake of the parties, or else under a mistake of one of the parties, to wit: of Richard V. Gaines, acting for himself and his' co-trustee, Thomas Watkins, and for William J. Watkins, the grantor in the deed of trust for the benefit of his creditors, and by means of a fraud committed by the other party, to wit: by Allen W. Elliott, acting for himself and for Charles H. Henderson; and'that instead of rendering a decree in favor of the said trustees for the sum of $240, with interest from the 20th of December 1860, that being the price, $1,200, of the saw mill on that day sold by the said William J. Watkins to the said Henderson & Elliott, after deducting therefrom nine hundred and sixty dollars as the price of timber cut by said Wiliam J. Watkins from the land of said Henderson, the said price of the timber being ascertained by estimating the quantity of the land on which the timber was cut at 120 acres, that being the area of the whole plat marked “exhibit C” in the proceedings mentioned, and by charging for the said timber at the rate of eight dollars per acre of the said quantity of land, the circuit court ought to have rendered a decree in favor of the said trustees for the sum of $800, with interest from the 20th of December 1860, that being the said price of the said saw mill, after deducting therefrom four hundred dollars as the price *of the said timber, ascertained by estimating the quantity of the land on which the timber was cut at fifty acres, that being about the area of that portion of the said plat which is designated by the letters “A, B, C, D,” and by charging for the said timber at the said rate of eight dollars per acre of the said quantity of fifty acres.

It appears from'the evidence in the record that William J. Watkins purchased the timber of Henderson by the foot, instead of by the acre of the ground from which it was cut, and in fact owed but $279.78 for the said timber. The trustee, Richard V. Gaines, had been informed and believed that the amount due therefor was $377, and was willing to allow that sum as a credit in his attempt to settle the matter with Elliott; but Elliott refused to settle, unless the credit for the timber was ascertained by multiplying the number of acres of the land from which it was cut by eight dollars per acre. He estimated the quantity of the land at fifty acres, and said that'it would not at farthest exceed fifty-five or sixty acres. Gaines had been informed by William J. Watkins that he had stepped off the land, and that the quantity was about fifty acres; and he, and the other parties having the same interest with him, desiring very much to settle the matter' before the death of Henderson, the only solvent one of the two partners, Henderson & Elliott, and who was then in extreme illness, and expected soon to die, he consented to settle the matter with Elliott, by allowing credit for the timber at the rate of eight dollars per acre of the said land, described in the said contract, as “estimated at fifty acres, be the same more or less.” For the purpose of effecting a settlement of the matter in the lifetime of Henderson, Gaines was willing to give up one or two hundred dollars *of the debt, that being the difference between the amount of the credit to which Henderson was really entitled on account of the timber aforesaid, estimated by the foot and the amount of the credit to which he would be entitled on account of said timber, estimated by the quantity of fifty acres-of land at eight dollars per acre. Accordingly contract B was entered into; but in order to secure to Henderson, if he got well, the right to settle the matter by paying the difference between $1,200, the price of the mill, and $377, the supposed amount really due for the timber, a condition to that effect was added to the contract. After the contract was made, and before the land was surveyed, Elliott said to Morton, the administrator of Henderson, that he thought there was upwards of one hundred acres in the bounds of the said land set out in the said contract. The survey was made in April 1861, when it was ascertained that the quantity of land contained within the said bounds was one hundred and twenty acres, making the amount of the credit claimed, if estimated by the acre, nine hundred and sixty dollars, instead of four hundred dollars. Had the quantity been a few acres more, that is, one hundred and fifty, instead of one hundred and twenty acres, the amount of the credit calculated by the acre would have been precisely equal to the price of the mill. Such a result as that could never have been in the contemplation of the parties. It certainly was not in the contemplation of Gaines; and it could not honestly have been in the contemplation of Elliott. Gaines was prepared for a result of the survey, which would show the quantity to be a few acres more or less than fifty, such a difference as is authorized by the expression “more or less.” Evidently the piece of land which was contemplated by William J. Watkins *as the piece for the quantity of which he was to be charged at the price of eight dollars per acre, if that mode of ascertaining the amount of the credit should be adopted, was the piece contained within the boundaries A, B, C, D, on the plat, which piece contains about fifty acres, and is separated from the residue of the land in the plat by the fence on the line C, D. That is the piece which bad no doubt been stepped off by William J. Watkins, who thus ascertained that it contained about fifty acres, and he so informed Mr. Gaines, who supposed it was the same land included in the boundaries designated in the contract. All the timber which had been cut bv William J. Watkins from the land of Henderson, with the exception of a few trees only, haü been.cut on that piece of land, and on that side of the said fence which protected the crop of the said Henderson. There was really very little timber on the land included in the said plat, and on that side of the fence next to the crop; and it could never have been intended by said Watkins, or even by Henderson, that the former should be charged for any timber on that side of the fence except by the foot. Gaines never saw the land until some time after the contract was made, and seems to have lived at a distance from it. Elliott lived only two-and-a-half miles from it, and knew all about it. It was understood by the parties, when they made the said contract, that on the next day they would ride over the land; but on the next day Elliott excused himself from taking the ride, because he had no horse, and it being a very cold day, with snow on the ground, Gaines did not ride over the land.

Under these circumstances we think there can be no doubt about the justice of the case. The utmost extent of any credit which Henderson & Elliott can *juslly claim on account of the timber is four hundred dollars. That is greater than the true amount; but it is what Gaines agreed to pay by the settlement aforesaid, and it is therefore the amount of the credit which, and which alone, ought, in justice, to have been allowed.

We also think that the claim of the appellants is not only well founded in justice, but is also fully sustained by authority; and that they are entitled to relief on the ground of mistake on the part of one of them, Gaines, acting for himself and the rest, if not of fraud also on the part of Elliott.

If there was fraud on the part of Elliott, there can, of course, be no doubt of the right of the appellants to relief.

We think there can be little if any doubt of their right to relief on the ground of mistake. There are many authorities on this subject, which we deem it unnecessary to review. In 1st Story’s Eq. Jur., Library edition, § 141, it is said that “if the mistake he in the quantity of the land sold, as four acres instead of eight, this is sufficient to justify a court of equity in rescinding the contract, it being proved that the deficiency was material in the object of the purchase; and this would be so, although the land was described as being eight acres, “more or less" —these words being confined to a reasonable allowance for small errors in surveys, and for variations in instruments.”

See also Quesnel v. Woodlief, 6 Call 218; Blessing’s adm’rs v. Beatty, 1 Rob. R. 287; and other cases cited by the counsel for the appellants; also Belknap v. Sealey, 14 New York 143. „ . .

„ . The court is therefore of opinion, that so much of the decree appealed from as is in conflict with the foregoing opinion is erroneous, and ought to he reversed *and annulled, and the residue thereof affirmed; which is decreed accordingly.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the circuit court erred in not rendering a decree in favor of the trustees of William J. Watkins’ creditors for the sum of $800, with interest from the 30th day of December 1860, that being the true balance due on account of the price of the saw mill in the proceedings mentioned, instead of $340 with interest from that day, for which latter sum and interest, as such balance, the decree appealed from was actually rendered.

Therefore it is decreed and ordered that so much of the said decree appealed from as is in conflict with the foregoing opinion, and as is therein declared to be erroneous, be reversed and annulled, and the residue thereof affirmed; and that the appellee, George W. Booker, late sheriff of Prince Edward county, and as such administrator of C. H. Henderson, deceased, oul of the assets of said decedent in his hands to be administered, and A. W. Elliott, out of his own estate, do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here.

And this court, proceeding to render such decree as ought to have been rendered by the said circuit court, in lieu of so much of the decree appealed from as is reversed as aforesaid, it is further decreed and ordered that the defendant’s second exception to the commissioner’s report be overruled, and their third exception to said report be sustained; and that the said George W. Booker, late sheriff and administrator as aforesaid, out of the assets of the said C. H. Henderson. *in the hands of said Booker, to be administered, and the said A. W. Elliott, out of his own estate, do pay to R. V. Gaines and Thomas Watkins, trustees of William J. Watkins’ creditors, the sum of eight hundred dollars, with interest thereon from the 30th day of December 1860 till payment.

Which is ordered to be certified to the said circuit court of the county of Charlotte.

Decree reversed.  