Page v. Hogan

• Decision Date: 26 November 1912
• Parties: PAGE v. HOGAN.
• Court: Kentucky Court of Appeals

150 S.W. 801

150 Ky. 726

PAGE v. HOGAN.

Court of Appeals of Kentucky.

November 26, 1912

Appeal from Circuit Court, Logan County.

Action by Walter S. Page against J. J. Hogan. Judgment for defendant, and plaintiff appeals. Affirmed.

S. R Crewdson, of Russellville, for appellant.

S. J Browning and Browder & Browder, all of Russellville, for appellee.

HOBSON C.J.

On October 6, 1908, J. J. Hogan sold and conveyed to Walter S Page a tract of land, as shown by the deed, of 98 1/2 acres for $5,500; the sale being in gross. On December 18, 1911 Walter S. Page brought this suit against Hogan, alleging that there was a deficiency of 10 acres in the tract, and praying judgment against him for $538.50, the amount which 10 acres would come to at the contract price. Hogan by his answer denied that there was a deficiency of the amount alleged. Proof was taken. According to one survey the tract contained 90 1/8 acres. According to another survey the tract contained 91 1/2 acres. There was a roadway on the side of the place, and the surveyor who made it 90 1/8 acres appears to have not included enough of the roadway in his survey, owing to the fact that he measured to the middle of the road, when the middle of the road was not the real line. So, taking the two surveys together, we think it may be safely concluded that the tract contains, in fact, about 91 acres of land, and that there was a deficiency of 7 1/2 acres. The proof taken showed that Hogan had never had the land surveyed; that his deed called for 98 1/2 acres, and that he told the purchaser in substance that he did not know the quantity of land in the tract; that the purchaser went over the land on two separate days and made careful examination of the place making an estimate of the quantity of land in each field; and that he knew as much about the quantity when he bought as Hogan did. There is some slight discrepancy between the testimony of Hogan and Page as to what took place between them. Page says that Hogan told him he thought there were 100 acres in the place. Hogan says that he told him that he thought there was between 90 and 100 acres in the place. Hogan asked Page $6,000 for the land, and finally agreed to take $5,500. It was apparent from all the testimony that Page bought the land when he understood that Hogan did not know definitely how many acres there were in the tract. On this proof the circuit court dismissed the plaintiff's petition, and he appeals.

We have held in a number of cases that where the tract of land is sold in gross, and there is a discrepancy of 10 per cent. or over, a recovery may be had for it; but that, where the discrepancy is less than 10 per cent., no recovery will be allowed, because the parties must be presumed to have contemplated that the quantity...