Enequist v. Bemis

• Citation: 55 A.2d 617
• Decision Date: 19 December 1947
• Docket Number: No. 1167.,1167.
• Parties: ENEQUIST v. BEMIS et al.
• Court: United States State Supreme Court of Vermont

55 A.2d 617

ENEQUIST

v.BEMIS et al.

No. 1167.

Supreme Court of Vermont.

Nov. 4, 1947.

Reargument Denied Dec. 19, 1947.

See 56 A.2d 5.

Appeal from Bellows Falls Municipal Court, Windham County; Albert T. Bolles, Judge.

Action by Dorothy K. Enequist against Ernest E. Bemis and another to recover down payment made on purchase of real estate. From a judgment for defendants, plaintiff appeals.

Reversed and remanded.

Edwards & Bigelow, of Bellows Falls, for plaintiff.

Gibson, Gibson & Crispe, of Brattleboro (Ralph Chapman, of Brattleboro, on the brief), for defendant.

Before MOULTON, C. J., BUTTLES, STURTEVANT and JEFFORDS, JJ., and CLEARY, Superior Court Judge.

MOULTON, Chief Justice.

On February 26, 1938, the parties to this action entered into a written contract whereby the defendants agreed to sell and convey to the plaintiff, and the plaintiff agreed to purchase, certain real estate, ‘described approximately as follows: Two hundred and seventy-five (275) acres located in the town of Westminister, Vermont, known as the farm of Ernest E. Bemis and more fully described in the deed of said premises recorded in Westminister Town Clerk's office, Book 30, page 20,’ together with certain described personal property. The contract price was $4,200 of which $420 was paid by the plaintiff to the defendants at the time of signing the contract, as that instrument provided that it should be, and the balance was due at the time set therein for the delivery of the deed, and the possession of the premises, April 30, 1938, at 11 a. m. The contract further provided as follows: ‘It is understood and agreed that the property herein described has been inspected by the Buyer or the Buyer's duly authorized agent; that the same is and has been purchased by the said Buyer solely as a result of said inspection.’

The transaction was not consummated and the plaintiff has brought this action to recover the sum of $420 which has not been repaid to her by the defendants, together with interest thereon. The original writ was dated August 17, 1938, with a declaration in the common counts. On December 14, 1945, the plaintiff filed what she calls her specification, but what is in reality an additional count to the declaration, which contains allegations that the contract for sale was entered into between the parties; that before April 30, 1938, it became apparent that the defendants were unable to convey 275 acres of land; that she rescinded the contract and demanded the return of the $420 down payment, which was refused. That thereafter the defendants conveyed the property to third persons, thus making it impossible for them to carry out the contract.

The cause was tried by jury and resulted in a directed verdict for the defendants. The exceptions of the plaintiff challenge this ruling, and also the admission of certain evidence.

The only witness who testified at the trial was the defendant Ernest E. Bemis, who was called by the plaintiff. It appears that the plaintiff and her husband gave their depositions in New York City, but these depositions were not put in evidence. Bemis testified that he said to the real estate agent with whom he listed the farm for sale that the acreage was 275 acres more or less, as near as he could tell. He had never had the property surveyed. He testified that he and his wife, the other defendant, attended at the time and place appointed in the contract for the purpose of closing the sale, along with their attorney, for the purpose of giving the deed but that the plaintiff ‘called the deal off.’ No reason for her doing so was given. Subsequently, on May 19, 1941, the defendants conveyed the farm to Edward J. McDougal, Jr., and Katherine E. McDougal, describing it as containing 200 acres more or less.

We first consider the exception to the granting of the motion for a directed verdict. The plaintiff here and below has taken the position that the parties labored under a mutual mistake in estimating the acreage of the farm, and that therefore there was no meeting of their minds upon the subject matter, and no contract existed, which gave the plaintiff the right to the return of the money that she had paid. In her brief the issue is thus stated: ‘The question is whether a prima facie cause of action for the return of the down payment of $420 has been established based on the variation of the quantity of land contained in the land contract and the admission of the defendants on the quantity of their land in their deed to the McDougals.’

The defendants maintain that the contract was for the sale of the specified tract of land, that is, for a sale in gross and not by the acre; that the statement of the approximate acreage was mere matter of description; that the plaintiff, or her authorized agent, had inspected the property before the execution of the contract; and that she contracted in reliance upon the information thus obtained regarding its contents.

Where a contract has been entered into under a mutual mistake of the parties regarding a material fact affecting the subject matter thereof, it may be avoided in a court of law at the instance of the injured party, and an action lies to recover money paid under it. Bedell v. Wilder, 65 Vt. 406, 410, 26 A. 589, 36 Am.St.Rep. 871; Faulkner v. Hebard, 26 Vt. 452, 459; Ketchum v. Catlin, 21 Vt. 191, 194. The mistake must be one vitally affecting a fact or facts on the basis of which the parties have contracted; and where they have mutually assumed a certain state of facts to exist and contracted on the faith of that assumption, relief from the bargain should be given if the assumption is erroneous. 5 Williston, Contract (Rev.Ed.) para. 1544, p. 4334. Restatement, Restitution, para. 9(3), para. 16, comment c. But in the absence of a mistake of this nature, or of some other matter making the transaction voidable, such as fraud, duress, infancy or the like, ‘one of the parties can no more rescind the contract without the other's express or implied assent, than he alone could have made it.’ Fay v. Oliver, 20 Vt. 118, 122, 49 Am.Dec. 764.

It is clear that this contract was for a sale in gross. The phrases ‘described approximately as', in the agreement, and ‘more or less' in the deed from the defendants to the McDougals, referring to the acreage in each instance, are the same in meaning. They are words of safety and precaution, intended to cover some slight and unimportant inaccuracy and, where the property is described by metes and bounds, and the identity of the tract is in issue, are regarded as a mere matter of description, since the boundaries control the quantity actually conveyed. Parrow v. Proulx, 111 Vt. 274, 278, 279, 15 A.2d 835, and cases cited. But it has been held in numerous decisions that where the disparity between the estimated and the actual quantity of land is palpable and unreasonable, and the contract for sale, or the deed, was the result of a mutual mistake as to this fact, the injured party is entitled to relief.

In Darling v. Osborn, 51 Vt. 148, on foreclosure proceedings the defendant sought a reduction of the amount due on his note secured by a purchase-money mortgage, on the ground of a mutual mistake as to the acreage of the real estate. The property consisted of two lots, described by number in the deed, ‘supposed to contain 100 acres each, more or less.’ It appeared that one of the lots contained slightly over 60 acres, and the other 53 acres, and that the statement as to quantity was due to the mutual mistake of both parties to the deed and was relied upon by the defendant. In granting the desired relief the court said (quoting with approval from Couse v. Boyles, 4 N.J.Eq. 212, 3 H.W. Green 212, 216, 38 Am.Dec. 514): ‘When land is sold as containing so many acres, more or less, if the quantity, on an actual survey or estimation, either overrunning or falling short of the contents named, be small, no compensation should be recovered by either party. But if the variance is considerable, the party sustaining the loss should be allowed for it; and this rule should prevail when it arises from mistake only, without fraud or deception.’ (page 157 of 51 Vt.) Paine v....