
    Keenan v. Bird et al.
    
    
      (Supreme Court, General Term,, Second Department.
    
    May 11, 1891.)
    Kescission of Contracts—Mutual Mistake.
    Plaintiff purchased land from defendant for agricultural purposes by a contract which described it as adjoining certain other lands, and containing about “ 60 acres, more or less, ” and referred to the sheriff’s deed of the land, under which defendant claimed, which contained the same description and recital-as to quantity. Defendant said that the land contained about 67 acres. After the execution of the contract plaintiff had the land surveyed, and found that it contained 48% acres. Held, that plaintiff would be relieved from his purchase on the ground of mutual mistake as to quantity, there being no evidence of fraud on the part of defendant.
    Appeal from special term, Westchester county.
    Action by Henry P. Keenan against Joseph G. Bird and others for relief from a contract for the purchase of farm land on the ground of mistake in the quantity, and for the recovery of money paid on the contract. The complaint was dismissed, and plaintiff appeals.
    Argued before Barnard, P. J., and Pratt, J.
    
      Richard V. Boyd, for appellant. Arthur T. Hoffman, for respondents.
   Barnard, P. J.

On the 14th day of May, 1889, the defendants, by a written agreement under seal, covenanted to convey a title to certain premises particularly described in the complaint. The deed was to be delivered on the 14th of June, 1889. One hundred dollars was paid on account off the purchase price, and the balance, $5,900, was to be paid at the delivery of the deed to plaintiff. Before the time for the delivery of the deed the plaintiff caused a survey to be made of the land, and found that the description in the contract contained a trifle over 48£ acres. The contract contained no detailed description, but referred to the deed thereof given by the sheriff upon a foreclosure sale thereof in 1862, with a specific reference to the record of the deed in the register’s office of Westchester county. This deed was in the possession of plaintiff’s attorney before the contract was executed, and the contract' was drawn from it. The sheriff’s deed gave a general description of the land, mainly bounded by the premises of adjoining properties, “containing by estimation sixty acres, be the same more or less.” The contract drawn by plaintiff’s attorney contains a still more general description of the land, but refers to the sheriff’s deed for a more particular description, and states the amount of land to be “about sixty acres, more or less.” The representation made by the owners was that the sheriff’s deed “called for sixty acres of land;” “that the property overrun that amount, and they considered it to contain about sixty-seven acres.” The land was a very irregular piece of land. There is nothing in the case to justify a finding of fraud. The vendors sold by the piece, and the statement of quantity in the sheriff’s deed was accurately given, as well as the deed itself, for examination of title. The negotiations were all conducted on this deed, and its accuracy of description, and its estimates of quantity. The finding that there was no fraud was right. Is the plaintiff without relief? The contract was not executed, and the parties were mutually mistaken as to quantity. The variance is so marked, and the purchase being of agricultural land, that the case seems to be covered by Paine v. Upton, 87 N. Y. 327. Words such as “more or less,” or “containing by estimates” certain quantities, do not deprive a vendee of relief where the variance is so material as to show that the risk of quantity was-not one of the elements of the contract. The evidence shows clearly a mutual'mistake in the case, and that the land was purchased for agricultural purposes, and that the deficiency is so great that it would be inequitable to the vendee to compel him to bear the loss. The judgment should therefore be reversed, and a new trial granted, costs to abide event.  