Newton v. Tolles

• Decision Date: 14 March 1890
• Citation: 19 A. 1092,66 N.H. 136
• Parties: NEWTON v. TOLLES. TOLLES v. NEWTON.
• Court: New Hampshire Supreme Court

19 A. 1092

66 N.H. 136

NEWTON

v. TOLLES.

TOLLES

v. NEWTON.

Supreme Court of New Hampshire. Hillsborough.

March 14, 1890.

Bill in equity for the rescission of a contract for the purchase of a farm and other property, and for the return of money paid as a part of the purchase money. Facts found by the court: The defendant, Sophia A. Tolles, employed R., a real-estate agent in Nashua, to sell her farm. In May, 1886, Newton, seeking to buy a farm, applied to R., who informed him of the Tolles farm, told him it contained 200 acres, took him to see it, and there pointed out to him such of the courses and boundaries as he knew; but he did not know, or undertake to point out, all of them. Afterwards, R., as agent of Tolles, and Newton executed an agreement by which Tolles agreed to sell, and Newton to buy, the Tolles farm for $5,400, to be paid $200 on the execution of the agreement, $1,000 on the delivery, on or before June 1, 1886, of a bond for a deed, $1,000 on or before July 10, 1886, and $3,200 on the delivery, on or before October 20, 1886, of a good and sufficient deed, "said Newton to have all the stock, tools, hay, grain," etc. On the margin of the agreement, "farm contains about 200 acres" was written. Newton paid $200 May 15, Tolles executed and delivered to Newton a bond conditioned to convey to him "a certain lot or parcel of land situated in Nashua," and particularly described by metes and bounds, "meaning and intending to convey all the homestead farm, containing about two hundred acres, as by deed of heirs of Horace C. Tolles, to me, and all other land and right in said homestead farm," upon Newton's payment of $1,000 on the delivery of the bond, $1,000 on or before July 10, 1886, and $3,200 on the delivery, on or before October 20, 1886, of a good and sufficient deed. On the margin of the deed was written: "It is agreed, for the above consideration, that said Newton is to have all the stock, tools, hay, grain, &c, and that said Tolles is to remove only household furniture and family stores from said premises." Prior to 1879 the Tolles farm comprised about 203 acres, of which the defendant and her husband owned a part in common, and each a part in severalty. In that year the heirs of Horace C, then deceased, conveyed a parcel of about 25 acres to Xenophon Tolles, and all their interest in the rest of the farm to the defendant. In January, 1886, the defendant sold about 18 acres to C, who sold to Roby. A parcel of about 25 acres, called the "Salmon Brook Meadow," was half a mile distant from, and had no connection with, the rest of the farm, except in its use as a part of it. These parcels were not shown to Newton by R., and are not covered by the particular description given in the bond. Newton at the time of the bargain did not understand that they were included in his purchase, but he understood that he was buying the Tolles farm, and that it contained 200 acres. The defendant did not intend to convey, nor understand that she agreed to convey, the three parcels, or any of them; but she understood and believed that the farm, as described in the bond, contained about 200 acres. It in fact contains about 135 acres. In June, 1886, Newton discovered that Tolles owned the Salmon Brook meadow, and learned of its connection with the farm. He thereupon claimed possession of it, and that it was included in the bargain, but his claim was denied. He refused to pay the installment due July 10th and August 21st. Tolles brought a suit at law to recover it, which is the record of the above-named actions. About the 1st of August, Newton found by a survey that the farm as described in the bond contains only 135 acres. October 20, 1886, Tolles tendered to Newton a warranty deed of the premises of which he is in possession, and demanded payment of the balance of the purchase money. Newton refused to accept the deed, and on the same day filed his bill, in which he offers to restore the real and personal property to the defendant, and give up and cancel the bond, and to account for the rents and profits while he has been in possession. He has consumed the hay and grain, but has other hay and grain out of which he can return an equivalent. He sold four cows in August, but replaced them with four others of greater value. The farm has not deteriorated in value. Evidence to show that the property which Tolles by her bond was obliged to convey was of the value of $5,400 or more was excluded, subject to the defendant's exception.

G. B. S. French and H. B. Cutter, for Newton. C. W. Hiott and E. S. Cutter, for Tolles.

CARPENTER, J. There was a mutual mistake in the quantity of land. The defendant understood she was selling, and the plaintiff that he was buying, a farm of 200 acres. It in fact contains only 135 acres. The defendant, believing that the farm contained 200 acres, informed the plaintiff that it did contain that number. The plaintiff relied on her statement. Under the influence of the error common to both parties, the transaction was consummated. The mistake was one of fact in a material point affecting the value of the property. Boynton v. Hazelboom, 14 Allen, 107, 108. Its prejudicial consequences to the plaintiff are the same as if the defendant's statement had been designedly fraudulent. Spurr v. Benedict, 99 Mass." 463, 467. The deficiency is so great that it would "naturally raise the presumption of fraud, imposition, or mistake in the very essence of the contract," if the mistake were not affirmatively found. Stebbins v. Eddy, 4 Mason, 414, 420. A material mistake in the quantity does not, in its effect upon the equitable rights of the parties, differ from a like mistake in the character, situation, or title of the bargained property. It is equivalent to a mistake in the existence of a material part of the subject of the contract. The case is as if before the contract was executed, and without the knowledge of either party, a parcel containing 65 acres of the 200 contracted for had sunk...