Jones v. Plater , 2 Gill 125 ( 1844 )

Archer, J.,

delivered the opinion of this court.

The determination of this case depends on the construction of the contract of the parties, of the 30th of November 1816. The question to be decided is, whether the parties intended that the number of acres should be fixed by the contract, at 998J acres, or whether it was designed that the quantity should be ascertained by measurement and paid for, according to the number of acres the land should actually contain ? The words of the contract are : “ the said John R. Plater sells to the said John Harnall a part of a tract of land called Great Elk-ton Head Manor, including the mill seat and the mill, supposed to contain 998|- acres, more or less, at nine dollars per acre.” The insertion in the contract of the terms more or less, induces us to believe it to be the intention of the parties that the land to be paid for was 998|- acres ; and not that the quantity to be paid for, was to be that which it should be found actually to contain. Unless the words “more or less” lead to such a conclusion, they are useless and insensible. The contract must be interpreted by its terms, and from an examination of its terms alone, we have arrived at the conclusion above stated.

If it were competent to look out of the instrument, the intention of the parties clearly appeared on the first of November 1816, by the agreement of that day, that the sale should be of 998-J- acres, at $9 per acre, whether it contained more or less; and we do not see in the agreement of the 30th, any change of intention, although the design of the parties is not so clearly and decisively expressed. The letters of Mr. Plater if used in evidence, show nothing to the contrary; the land sold was part of a tract from which other sales had been made, and a survey was necessary to enable Plater to convey, as he would be bound to do on the payment of the purchase money. If he therefore joined in the survey, or aided in it, no inference against the above interpretation could be deduced from such conduct.

The land thus appears to have been sold by estimation ; and so much is to be given by the acre for the quantity, more or less. The quantity of acres was manifestly not considered as of the essence of the contract, neither warranted on the one side, nor demanded on the other. The deficiency in the quantity is inconsiderable, and is not of such a character as to induce the belief of fraud or mistake. We cannot more intelligibly express our views, than in the language of Judge Story : “ There is much good sense in holding that the words more or less, or other equivalent words, used in contracts or conveyances, should be construed to qualify the representation of quantity, in such a manner, that if made in good faith neither party should be entitled to any relief on account of a deficiency or of a surplus.” 4 Mas. 417. We therefore think, this is no case, for an abatement of the purchase money.

The agreement in the record would seem to preclude the examination of any other questions, than those which we have examined.

DECREE AFFIRMED.