Cox v. Collins

• Decision Date: 14 April 1921
• Docket Number: 6 Div. 175
• Citation: 205 Ala. 491,88 So. 440
• Parties: COX v. COLLINS.
• Court: Alabama Supreme Court

88 So. 440

205 Ala. 491

COX v. COLLINS.

6 Div. 175

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Jefferson County; Horace Wilkinson Judge.

Action by J.R. Cox against Thomas Collins for damage for breach of an agreement to convey land. From an adverse ruling on the pleading, plaintiff took a nonsuit, and appeals. Affirmed.

Harsh Harsh & Harsh, of Birmingham, for appellant.

Harris Burns, of Birmingham, for appellee.

GARDNER J.

This litigation arises out of a contract for the sale of lands which is set out in the complaint and will appear in the statement of the case, and count 1 discloses that the plaintiff relies upon the language of the contract as establishing a warranty as to the quantity of land; this suit being brought for a breach thereof.

The question of prime importance therefore is whether or not the contract imports a covenant of warranty as to quantity. This question is usually reduced to another, whether or not the contract shows a sale of the lands in gross or a sale by the acre.

"The general rule is that, when specific or designated tracts or parcels of land are sold as a whole for a gross sum, and there is no express or implied warranty as to quantity, the transaction is termed a sale in gross. In such a sale quantity is not of the essence of the contract, and in the absence of fraud or gross mistake the purchaser is entitled to no diminution or abatement of the purchase price, if the quantity of land is subsequently ascertained to be less than was supposed or estimated at the time of the sale. *** The theory on which relief is denied is that the purchaser gets the specific land which he contracted to buy, and must be deemed to have assumed the risk of deficiency in quantity."-- Brassell v. Fisk, 153 Ala. 558, 45 So. 70.

Again, in Pearson v. Heard, 135 Ala. 348, 33 So. 673, is the following language, here pertinent:

"It is well settled that, if a contract is not for the sale of a specific quantity of land, but is for the sale of a specific tract, or a designated lot, or parcel, by name or description, for a gross sum, and the transaction is bona fide, a mutual mistake as to quantity, but not as to the boundaries, will not entitle the purchaser to compensation, and will not be a ground for rescission. In such cases, where the sale is not at a specified price by the foot or acre, 'the purchaser is entitled to the quantity contained within the designated boundaries of the grant, be it more or less, without reference to quantity or measure of the premises which is mentioned in the contract or conveyance."'

We are therefore to construe the contract in the light of these well-settled rules. It is first to be noted that to come within the foregoing principle, in the sale of the specific tract, it is not necessary that the land be described by metes and bounds or government numbers, but a description by name would be sufficient, if such designation would suffice for a proper identification. This is made to appear not only in the language of the foregoing quotation from Pearson v. Heard, supra, but was made more clear by what was said in Winston v. Browning, 61 Ala. 81, in the following language:

"There was no representation of quantity made by the vendor, independent of the recital in the writings, nor is there any fact shown, which indicates that it was regarded as of the essence of the contract. The vendor and vendee knew the lands by the designation of the 'Lacy place,' and knew its boundaries; that is, knew who were the adjoining proprietors. Each supposed that in quantity it approximated 1,060 acres, but no stipulation of quantity was made by the one or sought by the other. A sale of the 'Lacy place,' the quantity uncertain, for a gross sum, the gin stand being included, was the contract made. Unless that contract is departed from, there can be no abatement of the purchase money, because of the deficiency in quantity."

It would seem, therefore, that under the foregoing authorities had this contract stipulated for the sale by the defendant to the plaintiff for a tract of land known as the "Dr. Thomas Collins place, in Jefferson county, near Warrior, containing 300 acres," the designation of the number of acres would be considered as merely descriptive--and the contract not disclosing a warranty...