Kreiter v. Bomberger

• Decision Date: 22 May 1876
• Citation: 82 Pa. 59
• Parties: Kreiter <I>versus</I> Bomberger.
• Court: Pennsylvania Supreme Court

82 Pa. 59

Kreiter versus Bomberger.

Supreme Court of Pennsylvania.

May 4, 1876.

May 22, 1876.

May 4th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Lancaster county: Of May Term 1876, No. 82.

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D. McMullen, for plaintiff in error.—Where lands are described by courses and distances, and also by adjoiners, the latter, where there is a discrepancy, govern: Cox v. Couch, 8 Barr 147; Petts v. Gaw, 3 Harris 222; Brolaskey v. McClain, 11 P. F. Smith 163.

William R. Wilson, for defendant in error.—The evidence under the first error was clearly admissible to contradict the plaintiff's testimony, tending to prove in effect that at that time the drawer had been insolvent. Neither vendor nor vendee having been in possession of so much of the lot as was lacking, this was a constructive eviction pro tanto: Rawle on Covenants 157; Marston v. Hobbs, 2 Mass. 433; Wilson v. Cochran, 10 Wright 229. It is matter of set-off: Hunt v. Gilmore, 9 P. F. Smith 450. Rule as to discrepancy applies whether contract is executed or executory: Coughenour's Adm'rs v. Stauft, 27 P. F. Smith 195. More or less: 1 Sugden on Vendors, notes to p. 490; Smith v. Fly, 24 Texas 345; 4 Kent 467. Equity will relieve in case of gross mistake as to quantity.

Mr. Justice SHARSWOOD delivered the opinion of the court, May 22d 1876.

The first assignment of error might be dismissed with the remark, that as the jury found for the plaintiff upon his claim for contribution on the note of which the defendant was a joint payee and endorser with him, it evidently did him no harm. Yet as the case must go back for another trial, it may be proper to say that upon the question of fact raised by the defence, that the plaintiff had agreed to look to the maker and not call upon his co-endorsers for contribution, his declarations as to his opinion of the maker's means and ability to meet the note were relevant and admissible. It is clear that though a party has been examined in his own behalf as a witness, his admissions out of court, though contradicting his evidence, are admissible without having first called his attention to them, as is necessary in the case of other witnesses. Such admissions constitute independent evidence of themselves, and are not admissible merely for the purpose of impeaching the credibility of the party as a witness, although incidentally they may also have that effect.

The remaining assignments relate to the admission of the evidence of set off, claimed by the defendant and the instruction of the court to the jury upon that subject.

The right of a vendee to be allowed to recover for an alleged deficiency in the quantity of land purchased by him, as described in his deed or articles of agreement, may arise in three different classes of cases.

The first is when the agreement is entirely executory. I cannot find in our books any case in point, but in most of those which have been decided where the agreement has been carried out by a conveyance, and the giving of securities for the purchase-money, so much stress is laid upon the execution of the deed as to produce the impression that a vendee, where the articles are entirely executory, would be allowed for any considerable falling off in the quantity. Chief Justice Tilghman declined to express any opinion upon the question in Smith v. Evans, 6 Binn. 102. As the action to recover the purchase-money may be regarded as equivalent to a bill in equity to enforce the specific performance of the contract, it may well be concluded that the vendee ought not to be compelled to pay for more land than he actually receives, unless it appears that he understood and meant to take the risk that the quantity was as represented. The case is much plainer when the agreement is at the price of so much per acre; and even where it is for a round sum, and the quantity is qualified by the words "more or less," the deficiency should be a reasonable one, as in the old case of Day v. Finn, Owen 133, cited in 9 Vin. Abr. 343, pl. 10, where it is held that "sive plus sive minus" shall be intended of a reasonable quantity. Certainly very much ought to depend upon the extent of the purchase and the value of the land. This, however, is not the case which we have before us, and we do not intend to express an opinion upon it.

The second class of cases is however the more usual one: namely, where the contract has been carried out by the execution of a deed and of bonds or other securities for the purchase-money. The question has there arisen upon actions to recover on these securities. In such cases the law is well settled, that where the contract was for a round sum, or even by the acre, the vendee will not be allowed for a deficiency in the quantity, where the number of acres in the deed is stated with the qualification more or less, unless there be fraud, or, as is said, the difference is so very great as to show an evident mistake. The rule was stated by Mr. Justice Sergeant, in Galbraith v. Galbraith, 6 Watts 112, in these words: "An...