Caudill v. Bernheim

Decision Date24 March 1922
Citation194 Ky. 368,238 S.W. 1041
PartiesCAUDILL ET AL. v. BERNHEIM ET AL.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division.

Suit by I. W. Bernheim and others against R. E. Caudill and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded, with directions.

Edwards Ogden & Peak, of Louisville, for appellants.

Blakey Quinn & Lewis and Selligman & Selligman, all of Louisville for appellees.

CLAY J.

In the month of August, 1915, R. E. Caudill, J. T. Caudill, and W A. Caudill gave I. W. Bernheim a written option by which they proposed to convey him two tracts of land in Morgan county, and five-twelfths of the capital stock of the Kentucky-Pennsylvania Oil & Gas Company, of the par value of $30,000, at the price of $55,000, the principal portion of which was to be paid by the conveyance to the Caudills by Bernheim of his farm of 347 acres in Shelby county, at the price of $140 an acre, while the balance was to be paid in cash. The real property covered by the option was described as follows:

"(a) Six hundred and forty (640) acre farm, more or less, one-half mile from railroad located in Morgan county, etc."
"(b) One hundred and fifty (150) acre tract of land with oil rights, etc."

On September 2, 1915, another option fixing the purchase price of the property at $47,500 was given Bernheim, and on September 4th a third option was given, fixing the purchase price at $45,000, but leaving the price of the Bernheim farm unchanged. This option was accepted by Bernheim, and on September 11, 1915, the Caudills delivered the oil stock and tendered to Bernheim two deeds conveying the two tracts of land to the Enterprise Realty Company. The deeds were accepted. The description in the deed to the larger tract was as follows:

"Situated, lying and being in the state of Kentucky in Morgan county, Kentucky, on the right fork of Cannell creek known as Stacey line and bounded and described as follows, to wit:

Beginning at a double cottonwood and pine corner to Lucinda Day, thence with the meanders of the ridge to Jackson and Bryce Stacey line; thence with their line to Greenville Stacey line; thence with his line to Lucinda Day line; thence with her line to the beginning corner; excepting therefrom a small tract heretofore sold and conveyed to Sanford Day."

The smaller tract was described as follows:

"Lying and being in the county of Morgan and state of Kentucky, and on the Lunch fork of Cannell creek and bounded and described as follows, to wit:

Beginning at the mouth of Lunch fork at J. D. Nickell's line, thence with said line to a spotted oak on end of point on left-hand side of the branch, thence with the same line up the branch to a set stone; an agreed corner; thence crossing the branch and up the hill with a fence agreed line, to a set stone, on top of the point; thence with the meanders of said ridge, to A. T. Nickell's corner; thence with the meanders of said ridge and A. T. Nickell's line to D. M. De Beate's corner; thence with the hill to the branch and up the hill on the opposite side to a large rock on top of the point; thence up the point on the top of the ridge to a chestnut; thence down the ridge with D. M. De Board's line to Burton's line; thence with his line to a hickory, corner to S.D. Wells, and Granville Haney, thence with the meanders of said ridge to the head of Splash Dam hollow; thence down the hollow of the creek, thence up the creek to the beginning, containing one hundred acres more or less, being the same property conveyed to Mahaley Caudell by deed dated April 8, 1913, and recorded in Deed Book No. 38, page 460, Morgan County Records." Some time later Bernheim had the two tracts surveyed, when it was ascertained that the larger tract contained only 454.2 acres, instead of 640 acres as represented in the option, while the smaller tract contained only 107 acres, instead of 150 acres as represented in the option. About two years after the acceptance of the deeds, Bernheim brought suit to recover for the deficiency in the two tracts, relying upon fraud and mutual mistake. On final hearing the chancellor rendered judgment in favor of Bernheim and the Enterprise Realty Company for $7,217.16. The defendants appeal.

In the early case of Harrison v. Talbot, 2 Dana, 266, the court laid down the following rule:

"Sales in gross may be subdivided into various subordinate classifications: First, sales strictly and essentially by the tract, without reference, in the negotiation or in the consideration, to any estimated or designated quantity of acres. Second, sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances, or in such a manner as to shew that the parties intended to risk the contingency of quantity, whatever it might be, or how much soever it
...

To continue reading

Request your trial
15 cases
  • Commonwealth v. Elkhorn Piney Coal Min. Co.
    • United States
    • Kentucky Court of Appeals
    • November 24, 1931
    ... ... in cases of lands sold in fee. Piney Oil & Gas Co. v ... Allen, 235 Ky. 767, 32 S.W.2d 325; Caudill" v ... Bernheim, 194 Ky. 368, 238 S.W. 1041; Cecil v ... Knox, 195 Ky. 214, 242 S.W. 26; Engemann v ... Allen, 201 Ky. 483, 257 S.W. 25 ...  \xC2" ... ...
  • Com. v. Elkhorn Piney Coal Mining Co.
    • United States
    • United States State Supreme Court — District of Kentucky
    • November 24, 1931
    ...exactly as is allowed in cases of lands sold in fee. Piney Oil & Gas Co. v. Allen, 235 Ky. 767, 32 S.W. (2d) 325; Caudill v. Bernheim, 194 Ky. 368, 238 S.W. 1041; Cecil v. Knox, 195 Ky. 214, 242 S.W. 26; Engemann v. Allen, 201 Ky. 483, 257 S.W. 25. In McIntire v. Bond, 227 Ky. 607, 13 S.W. ......
  • Wallace v. Cummins
    • United States
    • United States State Supreme Court — District of Kentucky
    • April 22, 1960
    ...Ky. 672, 166 S.W. 180; Wilson v. Morris, 192 Ky. 469, 233 S.W. 1049; Wigginton v. Holbrook, 193 Ky. 805, 237 S.W. 1063; Caudill v. Bernheim, 194 Ky. 368, 238 S.W. 1041; Keown v. Brandon, 206 Ky. 93, 266 S.W. 889; Piney Oil & Gas Co. v. Allen, 235 Ky. 767, 32 S.W.2d 325; Humphries v. Haydon,......
  • Krumholz v. Goff
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • March 28, 1963
    ...but denied if it is less than 10%. See 1 A.L.R.2d 9, 101. This rule has been held to apply to coal and oil lands. See Caudill v. Bernheim, 194 Ky. 368, 238 S.W. 1041. 2 The 10% rule does not apply to a contract which refers to a quantity of acreage by estimation "only for the purpose of des......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT