Cook v. Combs , 39 N.H. 592 ( 1859 )

Dob, J.

The plaintiff intended to pay the defendant the amount which he did pay, and no part of it can be recovered as paid by mistake. There is no failure of consideration, for the plaintiff has received all that the deed purported to convey. He has not re-conveyed the land to the defendant, or tendered or offered to tender him a deed of it, and he cannot recover on the ground of rescission of contract. The evidence objected to tended to prove a parol warranty of the quantity of land made before the delivery of the deed, and not incorporated in it. This evidence was inadmissible. It would vary the deed as much as parol evidence of a warranty of title would vary a deed containing no warranty. It must be taken that the plaintiff received the deed as the evidence of the entire contract reduced to writing. It does not appear that the warranty of quantity was omitted in the deed by the fraud of the defendant, or the mistake of the writer, or that the plaintiff was. unaware of the omission, or that he made any objection to the deed. H it had been understood that a warranty of quantity was included in the contract of sale, it cannot be supposed that the plaintiff would have consented to the omission of so important a part of the contract when it was put in writing, relying upon parol evidence to protect himself and his heirs against the only breach of the contract which he would probably have had any reason to fear. Powell v. Edmunds, 12 East 6, is a case quite similar to this.

' Verdict set aside.