
    [Sunbury,
    June 28, 1826.]
    FREDERICK against CAMPBELL.
    
      IN ERROR.
    In an action on a bond given for the price of a tract of land, which bj' articles of agreement the plaintiff had contracted to sell to the defendant, and was said to contain two hundred and twenty-five acres, and for which a deed was after-wards executed, conveying the tract by metes and bounds, and calling it two hundred and twenty-five acres, but it turned out to be deficient in quantity, the defendant may prove, that, at the execution of the articles of agreement, the plaintiff asserted that the tract would be found to contain two hundred and twenty-five acres, and called on the bystanders to witness that he would make his assertion good.
    If to the proposition, that parties are bound by their own construction of a contract at the time it is finally executed, the court answer, that the proposition is generally true, but that fraud is alleged, and, if found by the jury, the written evi- ' deuce in relation to the contract is not conclusive, it is not error.
    
      Nicholas Frederick, the plaintiff in error,
    brought this action of debt in the Court of Common Pleas of Mifflin county, against John Campbell, the defendant in error, upon a bond given by the ‘latter to the former, dated the 2d of April, 1812, conditioned- for the payment of two hundred pounds on the l’st of April, 1817, The consideration of this bond was part of the purchase monéy of a tract of land, which Frederick, by an article of agreement, bearing date the 28th of November, 1811, had contracted to sell to Campbell, for the sura of one thousand six hundred pounds, and which was stated in the article to contain two hundred and twenty-ñve áeres and allowance. In pursuance of this agreement, a deed by Frederick and wife to Campbell was executed on the 2d of April, 1812, which described the tract by metes and bounds, and as containing two hundred and twenty-five acres, and allowance of six per cent, for roads, be the same more or less. On a survey being made, it turned out that the whole tract contained but two hundred and five acres and fifty-five perches.
    In the course of the trial the defendant offered to prove, by the testimony of a witness, that at the execution of the article of agreement, Frederick said there were two hundred and twenty-five acres in the tract; that he engaged to get it surveyed; that he obligated himself verbally that there was .that quantity, and called on the witness to attest his declaration. To this evidence the counsel for the plaintiff objected. The court, admitted the evidence, and an exception was taken.to their opinion.'
    The witness proved the facts offered in evidence, and added that he thought, though he would not speak with certainty on the subject, that at the execution of the deed, as well as at the execution of the article of agreement, a survey of the tract was spoken of.
    After the charge to the jury had been delivered, the counsel for the plaintiff propounded to the court, for their opinion, several propositions, and excepted to the opinion given upon the third proposition.
    This proposition was as follows; “In the absence- of all fraud, the parties, are bound by their own construction, which they put upon their own contract, at the time it was finally executed; as was done in this case, by executing and accepting the deed, bonds, and mortgage.”
    The answer of the Court was in these words: “These points are proposed, with singular want of point. They are all abstract propositions, applicable to this case, if there were nothing before the' jury but the writings. This cause does not depend on the writings alone, but on them and the parol evidence. • The above proposition is generally true; but fraud is aliegéd here, in more than one respect, and, if found by the jury, then the deed and bonds and mortgage, are not conclusive.”
    
      Blythe and Hale, for the plaintiff in error,
    contended, that there was error in admitting parol evidence of what passed at the execution of the articles of agreement, in pursuance of which the plaintiff afterwards gave a deed for the land to the defendant. This they considered as contrary to the opinion of the Supreme Court, when this cause was before .them, and the judgment reversed, at June Term, 1825. Judge DuncaN, in delivering the opinion of the court, then said, he would confine the parol evidence to the time of the execution of the deed of conveyance and the bonds. The deed being the Consummation of the agreement,’the previous arti-,eles were merged in the conveyance. Crotzer v. Russel, Executor, 9 & Rawle, 78. Share v. Anderson's Executors, 7 Aerg. & Rawle, 43. 10 Johns. 297.
    2. The court erred in leaving it to the jury to decide, according to the agreement of the parties appearing by the writings and the parol evidence, although there might be no fraud in the plaintiff.
    
      Potter, for the defendant in error.
    Parol evidence of what passed at the execution of the articles of agreement, was given at a former trial of this cause and exception taken, and the judgment was not. reversed on that exception. The evidence was proper to show that the plaintiff had always asserted, that there were twenty acres more than there actually were, in consequence of which the defendant-accepted a deed and gave his bonds for the price of twenty acres more than he obtained. The case of Share v. Anderson is not to the point. There was, in that case, no allegation of fraud; but, in the case under consideration, the fraud'of the plaintiff was the ground on which the defendant relied. The misrepresentation of the plaintiff, who knew the real quantity, was a fraud; and evidence of this misrepresentation, previous both to'the execution of the, articles of agreement and the deed of conveyance, was therefore admissible.
    
      
       See 13 Serg. &. Rawle, 136.
    
   The opinion of the court was delivered by

GibsoN, J.

The plaintiff relies on two points, — that the court, erred in admitting evidence of what passed at the execution of the articles, and in their direction on the third point, proposed at the trial.

It is said that no antecedent proposition ought to have been admitted to vary or explain the conveyance which whs ihe final accomplishment of the intention of the, parties; and it cannot be denied that if the evidence had been offered for that purpose, it would have been incompetent. But the consideration of the bond on which suit is brought, is the price of a tract of land which turns out to be deficient in quantity; and it is alleged that the defendant was drawn into the purchase by a misrepresentation of that material fact. He was admittéd to prove, that at the execution of the articles, (and, as the witness thinks, at the execution of the conveyance,) the plaintiff asserted that the tract would be found to contain two hundred and twenty-five acres, and called on the bystanders to bear witness that he would make his assertion good. It is immaterial that he may not have known this to be false: if he affirmed what he did not know to be true, he'was guilty of a fraud, which is a distinct head of equitable relief. The tendency of the assertion-was’to prevent the defendant from having the quantity ascertained by a survey, which he might otherwise have done; and if he in fact reposed on the representation of the plaintiff, it is obvious that he has suffered an injury which ought to be compensated by a deduction from his bond. But how is a party to show that a deception has been practised in the beginning of a transaction, and the delusion kept up through the whole course of it, but by showing the circumstances in the order in which they occurred? On principles of reason, the competency of the evidence is plain, and it is beside sustained by the decision of this court in Stubbs v. King, recently decided at Lancaster.

The objection to the charge — that the jury, were left to decide according- to the contract, as it should appear by the writings and parol evidence, though they should be of opinion that, no fraud was proved — is founded on an assumption of-what is not true in fact. The counsel prayed the court to charge, that, in the absence of fraud, the parties would be bound by the construction which they gave the contract when it was consummated; and the jury were directed that the proposition, although true in the abstract, was inapplicable to the state of the case as it appeared on the evidence, fraud being alleged in more respects than one. In truth, the defence was put exclusively on the existence of fraud, without which it was not pretended that, it could be made out. A party is not entitled to the direction of the court, on any point that does not necessarily arise out of a state of facts which the evidence may produce. But here the plaintiff actually had an expression of the court’s opinion in favour of bis abstract position; and it was therefore indispensable to instruct the jury, that it was irrelevant to any facts that might result from the evidence; and in this also there was no errors

Judgment affirmed. 
      
      
        Ante, page 206.
     