Grayson v. Buchanan

• Decision Date: 09 July 1891
• Citation: 13 S.E. 457,88 Va. 251
• Parties: Grayson v. Buchanan.
• Court: Virginia Supreme Court

13 S.E. 457

88 Va. 251

Grayson

v.Buchanan.

Supreme Court of Appeals of Virginia.

July 9, 1891.

Sale of Lands — Constrbotion of Contract— Presumptions—Set-Off—Pleading—Duplicity —Parol Evidence.

1. A contract for the sale of lands, described as "containing 140 acres, more or less, and known as the ' Kelly Tract, '" will be presumed to be a sale by the acre, in the absence of proof that it was a sale in gross.

2. When the vendor represented that the tract contained 140 acres, and included within its boundaries one-half of a certain spring, when in fact it. only contained 126 acres, and did not include the spring, the vendee is entitled to an abatement of the purchase price, to the extent that the tract was damaged by loss of the spring, as well as the proportionate loss of the 14 acres.

3. In such case, a verdict assessing defendant's damages at $600 for loss of one half of the spring, and $540 for the loss of 14 acres of land, and directing the manner in which this sum shall be applied towards the purchase price, is not vague and uncertain.

4. It was proper to refuse to grant a new trial upon the ground of newly-discovered evidence when the affidavit in support thereof does not give the date or details of a conversation between affiant and defendant, which is made the basis of the motion, as in such case the relevancy of the testimony does not appear.

5. Code Va. § 3299, provides that, " in any action on a contract, the defendant may file a plea, alleging any such failure in the consideration of the contract * * * as would entitle him to recover damages at law, * * * or to relief in equity, * * * alleging any such matter arising under the contract, existing before its execution, as would entitle him to relief in equity. " Held that, in an action to recover the purchase price of land, the vendee may plead, by way of set-off, and prove by parol, that the vendor falsely represented that a certain spring was upon the land, although such spring was not mentioned in the contract of sale.

6. A plea of set-off, showing that there was a partial failure of consideration, in that a spring was represented to be on the land, when in fact it was not, and that there was a deficiency of 14 acres in the tract, is not double.

Error to circuit court, Smythe county; John A. Kelly, Judge.

Action by Grayson against Thomas M. Buchanan on two bonds given to secure the purchase price of lands. Judgment allowing a set-off. Plaintiff appeals. This action was on two bonds, for $1,000 each, executed by the defendant to the plaintiff, Grayson, for the last two deferred payments of purchase money for a certain tract of land situated in that county. In the written contract between the parties for the land, the tract is described as the "Kelly Tract, " and "containing one hundred and forty acres, more or less, " for which the defendant agreed to pay the sum of $6,000. It does not appear that a deed to the land has ever been delivered to the defendant. The defendant offered a special plea of set off, averring that the tract was represented by the vendor, at the time of the purchase, to contain 140 acres, and that it included within its limits one-half of a spring on the north-eastern portion of the tract, which was the only running water on the entire tract except a small spring on the opposite side of the tract, and that, relying upon these representations, he contracted to purchase the land. The plea then goes on to aver that the tract did not, in fact, contain as much as 140 acres, as represented, but only 126 acres, and that the said spring is not included within the tract, nor any part thereof. Wherefore it is further averred there had been a failure of consideration to the extent of 14 acres of land and one-half of the said spring, and that the defendant has been thereby damaged to the extent of $3,000. The plaintiff objected to the plea, and moved the court to reject it, which motion was overruled. The defendant offered evidence before the jury, which was not excepted to, tending to support the averments of the plea, and the plaintiff introduced evidence tending to support the contrary view; that is, that the sale was in gross, and that there was no representation on his part that the tract included any part of the spring. The verdict of the jurv was as follows: "We, the jury, find for the plaintiff $2,000, the debt in tne declaration mentioned, with interest on $1,000, part thereof, from January 1, 1879, and on $1,000, the residue thereof, from January 1, 1880, subject to a credit of $398.38, as of October 11, 1883, and $613.-79, as of October 23, 1883. And we further find for the defendant as offsets to said debt, $600 damages for the loss of one-half of the spring in controversy, and $540 as an abatement for deficit of fourteen acres of the land, to be applied to said bonds in the order in which they fall due." The court overruled a motion for a new trial, and gave judgment on the verdict; whereupon the plaintiff applied for and obtained a writ of error.

S. W. Williams, for plaintiff in error.

Sheffy, Buchanan & Buchanan, for defendant In error.

Lewis, P., (after stating the facts.) The doctrine is established by numerous decisions of this court that the use of the words "more or less, "or "supposed to contain so many acres, more or less, " in a deed or contract for land, will not relieve the vendor or vendee, as the case may be, from the obligation to make compensation for an excess or deficiency beyond what may be reasonably attributed to small errors from variations of instruments or otherwise, unless, indeed, a contract of hazard was intended. But, in the absence of proof that it was, the presumption is that it was not; that is, that the parties contracted with reference to quantity, which influenced the price. In other words, that the sale was by the acre, and not in gross. It is equally well settled that contracts of hazard, though not void, are yet not regarded with favor. The presumption, as we have said, is against them, and this presumption can be repelled only by clear and convincing proof. Caldwell v. Craig, 21 Grat. 132; Watson v. Hoy, 28 Grat. 698; Benson v. Humphreys, 75 Va. 196; Trinkle v. Jack son, 86 Va. 238, 9 S. E. Rep. 986. In the present case the parties contracted for the payment of the gross sum of $6,000 for the laud, which in the written...