
    James S. Warden, Respondent, v. Nikola Tesla, Appellant.
    
      Contract for the sale of land—where the price is fixed by the acreage, it is determined by the actual, not the paper acreage — the admission of proof as to the paper acreage by one pa/rty entitles the other to give like proof.
    
    Where a contract provides that the sum of twenty-five dollars an acre shall be; paid for a tract of land described by metes and bounds, as “ containing four hundred and ten acres more or less,” the actual acreage and not the paper . acreage governs.
    Where, however, a party claiming under the contract is permitted to give evi- , dence of the paper acreage, a refusal to allow his adversary to give similar evidence is improper.
    ■ Appeal by the defendant, Nikola Tesla, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 9th day of May, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on. the 1st day of June, 1903, denying the' defendant’s motion for a new trial made upon the -minutes.
    
      Edwin B. Smith, for the appellant.
    ;William L. Marshall [Henry B. Johnson with him on the brief]^ for the respondent. -
   Hooker, J.:

This action arose out of an alleged breach of defendant’s contract to pay the plaintiff, as consideration for an option on certain real property, given by the latter, a sum equal to the annual interest at four per cent of the purchase price of the land in quarterly installments in advance. The purchase price is provided to be twenty-five' dollars per acre of a tract described by metes and bounds, its description concluding in these words : “ containing four hundred and ten acres more or less.” Upon the trial the plaintiff testified that he had “ computed the number of acres contained in. the metes and bounds contained in this agreement * * * as well as I could from the data I have.” To the question, “ How much is it ? ” the defendant entered the general objection that it ,was incompetent, immaterial and irrelevant, and the court observed .that it might be objectionable “oh the data which he has,” to which the witness volunteered, “Well, I have.” The plaintiff further testified in answer' to counsel’s questions, and without exception or further objection by the defendant, that it contained about 420 or 430 acres ; that the purchase, price of 410 acres at $25 per acre was $10,250, and that the interest on that sum at four per cent per annum for three months was $102.50. It appeared that the defendant had failed to pay six installments of $102.50, that sum being the amount of each installment, based upon the four per cent of the purchase price of 410 acres at $25 per acre. The defendant contends upon this appeal that, inasmuch as the agreement to, purchase was at a given amount per acre, it was incumbent upon the plaintiff to show how many acres were actually contained in the piéce described, and the purchase price be thus determined, that the percentage thereof, which was to be the consideration for the option,, might be computed therefrom; and he invokes the doctrine that where no sum is determined upon for the tract as a whole, but it is to be taken at so much an acre, the quantity of actual acreage on the surface of the ground must be correctly ascertained to fix the consideration to be paid. The rule is plainly applicable to the contract under consideration; the authorities to sustain the contention are so abundant and so firmly establish the rule that more than a citation of them would serve no useful purpose. (Wilson V. Randall, 67 N. Y. 338; Witbeck y. Waine, 16 id. 532; Murdock v. Gilchrist, 52 id. 242; Tarbell v. Bowman, 103 Mass. 341; Cardinal v. Hadley, 158 id. 352; Paine v. Upton, 87 N. Y. 327; Gallup v. Bernd, 132 id. 370.)

The measure of the defendant’s liability was determined, not by the number of paper acres, but by the actual acreage; while the ■description in the agreement seems to be full and complete it is based upon monuments and fixed bounds; the tract is bounded on one side by the lands of the late Dickerson, and a cardinal point in the description is the Woodville road; although the lines are stated to be of a given length in feet, a survey might easily- reveal that a strict measurement of the length of those lines would not accord with Dickerson’s lands or the road; hence, the actual acreage of the tract might be greater or less than 410.

The objection we have referred to is held by the plaintiff insufficient to raise this question, because of the absence of an exception, and this is true ; but the defendant did except to the overruling of his objection, stated to be on the ground that it is a demand for the payment of $102.50, which sum does not appear to be due, to the admission in evidence of a letter from the plaintiff’s agents to the defendant, demanding that sum as quarterly payment under the terms of the contract, and this exception was taken to a ruling of the learned trial court at variance with the correct principles of law applicable to the matter in issue, and thereby the question discussed is raised for our review. The erronéous theory upon which the judgment in plaintiff’s favor was based requires a -reversal.

The record presents additional evidence for the reversal of the judgment. The plaintiff was called as a witness and asked if he had computed the number of acres contained in'the metes and bounds ■as described in the agreement, and upon his affirmative answer was further asked questions to which he replied that the tract contained ¡something over 400, about 420 or 430 acres. No objection was ■entered.' The plaintiff was sufficiently skilled in mathematics correctly to make the computation from the data of the description of the property appearing in the contract. William S. Jones, the only witness called by the defendant, read the description and was then asked by defendant’s counsel: “ Now, have you made a computation of the quantity, of the number of acres, that would be included in those metes and bounds there mentioned ? ” The plaintiff objected, to the question, on the ground that it was incompetent, immaterial and irrelevant, but not on the ground that the witness was incompetent. It was excluded by the court, and the defendant excepted. Under the view I take of the true interpretation of this contract, by virtue of the authorities cited above, the question would have been incompetent and immaterial had it not been for the fact that the plaintiff himself invited and tendered an issue as to the number of paper acres as distinguished from the number of acres actually existing on the surface of the ground. One of the witnesses thought the number of acres appearing, based upon a computation of the metes and bounds -of the contract, was more than 410. It was surely competent for the defendant to show, if he could, and if such was the fact, that the acreage was less than that amount. It is fair to assume that such would have been the nature of the testimony of the witness Jones had he been allowed to answer. Because, at the initiative of the plaintiff, the case was tried upon the theory that the paper acreage should govern, he cannot complain of evidence on the part of the defendant to show less acreage than he himself claimed. Except for one or two phrases in the description slightly indefinite, such as “ southerly about three degrees west,” the problem of the computation was accurately solvable by any careful high school student who understood the principles of trigonometry and possessed tables in trigonometry. At any rate, plaintiff claimed to have made a calculation and gave his results, and should not have been allowed to prevent the defendant from attempting to show the ■contrary of what he had proved. The evidence was offered by the defendant for the purpose of traversing an essential point in plaintiff’s case, and its exclusion constituted reversible error.

Inasmuch as the question is likely to arise upon a retrial, it is proper to state that the defendant’s claim of misdescription of plaintiff’s capacity is, in the light of recent decisions, not well taken. (Hoffman House v. Foote, 172 N. Y. 348; Henricus v. Englert, 137 id. 488.)

The judgment should be reversed and a new trial ordered.

All concurred; Bartlett and Jenks, JJ., on last ground stated in the opinion.

Judgment and order of the County Court of Suffolk county reversed and a new trial ordered, costs to abide the event.  