Boxley v. Stevens

• Decision Date: 31 October 1860
• Parties: BOXLEY, Respondent, v. STEVENS, Appellant.
• Court: Missouri Supreme Court

31 Mo. 201

BOXLEY, Respondent,

v.STEVENS, Appellant.

Supreme Court of Missouri.

October Term, 1860.

1. A. and B. entered into an agreement in the following form: “Know all men by these presents, that I, A., have this, the 12th day of February, 1857, sold to B. the farm on which I reside in Meramec township, St. Louis county, state of Missouri, containing one thousand acres, more or less, bounded, &c., &c., for the sum of thirty dollars per acre, one-third in cash, and the balance in five equal annual payments, bearing six per cent. per annum. I hereby acknowledge the receipt of five dollars in part payment of the same. The first payment to be made on the first day of January, 1858, when possession is to be given. As witness our hands and seals the day and date above mentioned. [Signed] A., B.” The tract of land described contained by survey 1,098.82-100 acres. Held--in a suit instituted by A. against B. to recover the third of the purchase money payable in cash, in which he claimed the sum of $10,983.20 at the rate of thirty dollars per acre for the whole number of acres--that the tract embraced in the agreement was sold for the aggregate amount of $30,000, and not at the rate of thirty dollars per acre.

Appeal from St. Louis Land Court.

Lackland, Cline & Jamison, for appellant.

I. The agreement did not provide for having the land surveyed. It is a sale in gross, not a sale by the acre. The court erred in instructing the jury. (27 Mo. 73; 6 Binn. 102; 4 J. J. Marsh. 634; 7 Ala. 855; 6 Munf. 188; 14 Ala. 209; 1 Call, 301; 5 Call, 4; 1 Munf. 333; 1 S. & R. 166; 4 S. & R. 488; 4 Mass. 419; 2 Johns. 37; 1 Caine, 493; 24 Miss. 597; 14 Ala. 209; 5 Leigh, 39; 1 Metc. 378; 1 N. Y. 102; 20 Mo. 239.)

Glover & Shepley, for respondent.

I. The legal effect of the agreement is the sale of a specific tract of land by metes and bounds at thirty dollars per acre. (5 Mass. 356; 13 Mo. 252.)

NAPTON, Judge, delivered the opinion of the court.

This suit was brought upon the following agreement: “Know all men by these presents, that I, William S. Boxley, have this, the 12th day of February, 1857, sold to Richard H. Stevens the farm on which I reside in Merrimack township, St. Louis county, state of Missouri, containing one thousand acres, more or less, bounded, &c., &c., for the sum of thirty dollars per acre, one third in cash, and the balance in five equal annual payments, bearing six per cent. per annum. I hereby acknowledge the receipt of five dollars in part payment of the same. The first payment to be made the first day of January, 1858, when possession is to be given. As witness our hands and seals the day and date above mentioned. Wm. S. Boxley (seal), Richard H. Stevens (seal). Attest: J. L. Stevens.”

The plaintiff avers that the tract of land described in this paper contains by survey 1,098.82-100 acres; that the defendant took possession of the land under this contract at the time specified therein; that no notes have been executed and no title made; and that the one-third of the purchase, to-wit, $10,983.20, is now due. He asks a judgment for this sum, with interest; that said judgment be made a lien on the land sold; and that, in the event that a general execution shall not be satisfied, that the land may be sold and the proceeds applied to the plaintiff's claim, &c.

Upon the trial, the court instructed the jury that the legal effect of the contract was to render the defendant liable for the purchase money, estimated at thirty dollars per acre, for the number of acres which, upon survey, the tract was ascertained to contain; and the verdict of the jury was accordingly for one third of the purchase money estimated upon this rule, with interest.

The propriety of this instruction is the only material question in the case. There were other points made on the trial, but as the jury passed upon them, under proper instructions, it is unnecessary to notice them.

The question is upon the construction of the agreement. Is the farm or tract of land therein described sold at $30,000, or is the aggregate price to be determined by ascertaining the number of acres it actually contains? There is no doubt that the estimate of the quantity of land at a thousand acres, more or less, is not an assurance that the tract contains the precise number of acres specified. The words “more or less” are sufficient to show that the exact number of acres in the land was not certainly known to either party, and that both parties were willing to abide by the rate, notwithstanding there might be a deficiency as a surplus. To what extent discrepancies are allowed by the terms “more or less,” it is not necessary in this case to consider, as the only controversy between the parties is as to the price. It is not pretended that the purchaser did not get all he bargained for, nor does the vendor complain that more land was embraced by the contract of sale than he anticipated; the disagreement is only in reference to the price.

Here is a sale of a farm or tract of land, on which the vendor resided, containing one thousand acres, more or less, for the sum of thirty dollars per acre. Is the aggregate...