
    Richard J. Lyons, Plaintiff, v. Lewis S. Barnum et al., Defendants.
    (Supreme Court, Putnam Special Term,
    October, 1908.)
    Vendor and purchaser — Adjustment of rights after conveyance or rescission of contract — Remedy on mistake or fraud as to quantity.
    The vendee in a contract for the purchase of a farm described as containing 100 acres of land, more or less, and which was represented by the vendor as not varying from that area by more than three acres, after having taken a conveyance thereof and given back a purchase-money mortgage, and having thereafter ascertained that the area of the farm was only 66 or 67 acres, is entitled to have credited on the mortgage an amount representing the value of the difference between the actual quantity of land and that which the farm was represented to contain, on the ground of mistake, without reference to any question of fraud.
    Action to obtain credit on bond and mortgage for deficiency in quantity of land under contract of sale.
    Lenahan & Dowley, for plaintiff.
    Frederick S. Barnum, for defendants.
   Tompkins, J.

In May, 1907, the plaintiff purchased from the defendants through their agent, Budd, a farm in Putnam county, for which he agreed to pay the sum of $21,000, upon the representations of the defendants and their selling agent that the farm contained 100 acres. The contract and deed described the farm as containing 100 acres of land, “be the same more or less;” and it appears that, at the time of the reading and execution of the contract, plaintiff asked what the words “ more or less ” meant, and was informed by the agent in the defendants’ presence that they meant a variation of not more than 3 acres either way from the 100 stipulated to be sold. After the sale, and upon surveys being made, it was found that there were 66.207 acres, as shown by plaintiff’s surveyor, and 67.84 acres according to the defendants’ survey; it being agreed that the farm is about one-third short of the 100 acres represented by the defendants and mentioned in the contract and deed. At the time of the consummation of the sale, plaintiff gave a purchase-money mortgage to the defendants for $15,000, $5,000 of which has since been paid, leaving the sum of $10,000 due to the defendants on the mortgage, and from which plaintiff, by this action, seeks to have deducted the sum of $7,096.53, being the value of the deficient land, at the rate paid by the plaintiff for the 100 acres.

The defendants deny the charge of fraud, and insist that they always understood that the farm contained about 100 acres, and there is nothing to the contrary except the fact that they had occupied the premises for eighteen years and were familiar with its boundaries; but, in any event, whether there was fraud or not, there was at least a material mistake, as -a result of which the plaintiff innocently got 66 acres of land, when he paid for and supposed he was getting 100 acres; and that mistake entitles the plaintiff to relief. He is entitled to have credited on the mortgage un amount representing the value of the land that he is short, and the purchase price is the standard for ascertaining such value. But, in order to fix the value of the deficient land at the time of the sale, we must deduct from the purchase price the reasonable value of the farm buildings at that time.

The defendants’ witnesses fixed the value of the buildings at the time of the sale at the sum of $12,458.10. The plaintiff’s witness, Waite, estimated the cost of reproducing the buildings at the present time at $8,000, and then testified that the cost of labor and materials is forty per cent, more now than thirty or forty years ago, and makes no deduction for the depreciation. The main buildings are forty or more years old; and, allowing for depreciation, I think that the sum of $6,000 is a fair amount to deduct from the purchase price for the value of the buildings.

The plaintiff paid $21,000 for the whole premises, supposed to be 100 acres. Deducting from that amount the sum of $6,000 for the buildings leaves $15,000 as the value of the land, or $150 per acre. The plaintiff is short thirty-three and a half acres and is, therefore, entitled to a credit of $5,025 on the purchase-money mortgage.

Ordered accordingly.  