Coughenour's Adm'rs v. Stauft , 1875 Pa. LEXIS 39 ( 1875 )

Chief Justice Agnew

delivered the opinion of the court,

This is a close case and difficult to determine. On the one hand the contract is still executory, and the difference in quantity unusually large, turning the equity of specific performance to the side of the plaintiff. On the other, the leading features and terms of the agreement turned strongly to the side of the defendant on the question of the actual intent of the parties. Where the intent of the parties is clearly to make a sale by the acre, as the means of determining the price, and the contract is still in fieri, the rule undoubtedly is, to compel payment of the purchase-money according to the quantity. In such a case, a survey, to ascertain the qauntity, is presumed to be intended, even without an express provision for admeasurement. This is stated by C. J. Tilghman, to be the rule in Pennsylvania: Bailey v. Snyder, 13 S. & R. 160 ; Paull v. Lewis, 4 Watts 402; Hershey v. Keembortz, 6 Barr 128. It is also said, there may be cases in which equity would relieve where the difference in quantity is so very great as to strike the mind at once as evidence of gross mistake or fraud-: Boar v. McCormick, 1 S. & R. 168; Thomas v. Pansy, Peters’ C. C. R. 49; McDowell v. Cooper, 14 S. & R. 299; Bailey v. Snyder, 13 S. & R. 160. Yet on this point it was said by Gibson, C. J., in Aschom v. Smith, 2 Penna. 218 : “ Our reports furnish no instance of an abatement, even where the difference was considerable, or where the principle has been sanctioned further than to admit that there may be extreme cases in which chancery would infer some great misapprehension, and on that ground relax the rules of law.” On the other hand, there are exceptions to the rule that a sale by the acre requires an ascertainment of quantity of survey. Thus, when a contract is made with reference to an official survey or draft, the contract will be construed as an agreement to sell according to the quantity stated therein, unless there be express provision for a remeasurement or fraud, or such palpable mistake as to evidence it: Philips v. Scott, 2 Watts 318. And this is the case, whether the contract be executory or executed: Id. See also Galbraith v. Galbraith, 6 Watts 117; Wier v. Dougherty, 3 Casey 182. Where the contract is executed by deed and bond, or other security taken for the unpaid purchase-money, the rule is not to open a contract so far executed to allow for a deficiency of quantity, nor can there be a recovery for an excess. The cases are numerous: Dagne v. King, 1 Yeates 322; Boar v. McCormick, supra; Glenn v. Glenn, 4 S. & R. 488; Large v. Penn, 6 Id. 488; McDowell v. Cooper, supra ; Dickinsons. Voorhees, 7 W. & S. 353 ; Hershey v. Keembortz, supra. This rule as to the closing of the contract by deed, holds even when the contract was for a sale by the acre: Smith v. Evans, 6 Binn. 102; Cronister v. Cronister, 1 W. & S. 442; Farmers’ & Mech. Bank v. Galbraith, 10 Barr 490.

From these authorities it will be seen that the rule that a sale by the acre will call for a survey to determine quantity, is by no means a rigid one, and will give way always to the intent of the parties to abide by the quantity stated in the agreement, or referred to in other writings. This brings us to the intent of these parties as gathered from the article of sale before us. The learned judge below thought the intent was to sell and purchase the tract of land referred to, and partially described in the article, at a round sum, without further ascertainment of the price. We incline to agree with him, though without thinking it a plain case. The agreement begins with the statement that Isaiah Coughenour, “ for the consideration of the sum of $10,500, to be paid as follows:” then stating the instalments, “doth grant, bargain and sell,” “ all that piece, parcel, or tract of land bounded and described as follows, to wit” : then follows a partial description by boundaries, and the place where it is situate, describing it also as “ part of a certain tract of land purchased from Gr. E. Hogg by said I. Coughenour,” “ containing 91f- acres, more or less, it being the same and all the land whereon he now resides.” There could be no possible doubt on this state of the case of the intention of the parties to sell and purchase a certain well known defined tract of land as containing 91-|- acres, for a specified and determined sum of money, were it not that in providing for the payment by instalments the agreement proceeds to say: “ The remaining unpaid balance to be paid in two yearly payments, at the rate oft $114.40 per acre, said payments, respectively due April 1st 18*74 and 1875.” Does this expression as to the rate per acre overcome the otherwise clear intention to sell a certain known tract of land for a specified round sum of money, without any language looking toward a future admeasurement ? We incline to think not. It is a small circumstance, but a calculation of 91|- acres at $114.40, gives the sum of $10,495.30, while the parties adopted as the consideration the sum of $10,500, showing an intent to adopt a round sum. Then when the rate per aeréis mentioned it wears the appearance of a recital of the mode of arriving at the sum of $10,500, rather than a provision for a mode of ascertaining the balance. Here the entire absence of a provision for a survey or measurement, bears strongly in corroboration of the interpretation that these words, as to rate, were but a recital and not a covenant. An intention to covenant for a measurement, it seems to us, would have been more plainly expressed, in view of the language indicating a sale by a round sum, and the absence of language to express a contrary intent. Then there are expressions strongly supporting the intent to sell for a specified and determined sum of money. Not only is it said that the subject of sale is a certain tract of land bounded, &c., but it is also said this tract contains 91f acres more or less, and is the same and all the land on which I. Coughenour resides. Thus the quantity is defined, and is predicated of a well known and understood piece, parcel or tract of land. Then it is averred that the quantity is stated, whether it be more or less; these words have frequently been held to be of great force in determining the intent of the parties to stand upon the stated quantity as fixed and determined between them. They imply, says C. J. Tilghman, that the boundaries are fixed, and may contain more or less: Glenn v. Glenn, 4 S. & R. 493; Thomas v. Perry, Peters’ C. C. R. 58; Galbraith v. Galbraith, 6 Watts 117. Upon the whole case it looks to us that each party was content to run the risk of the quantity in the tract being as specified, 91|- acres. This being so, it is clear that even though the contract is still executory, it must be treated as fixed in its terms, and the sum stated is to be paid as the purchase-money. Such being the interpretation of the writing, it is evident that parol proof of the after declarations of one of the parties was properly rejected as incompetent to affect its terms. There was no offer to show anything occurring at the time of the execution of the writing as evidence of fraud or plain mistake.

Finding no error in the record the judgment is affirmed.