Pringle v. Samuel
| Decision Date | 05 April 1822 |
| Citation | 11 Ky. 43 |
| Court | Kentucky Court of Appeals |
| Parties | PRINGLE <I>v.</I> SAMUEL. |
Pringle bought of Samuel, a small farm, at the price of $1,000, payable in two instalments. The first, of $500, he paid, and a part of the second, which was the sum of $530, the $30 being included for interest during the year next previous to its becoming due. Samuel brought suit to coerce the payment of the last instalment, and recovered judgment. To be relieved against this judgment, Pringle filed his bill, and obtained an injunction, which, on a final hearing, was dissolved, and his bill dismissed; to reverse which decree, he has prosecuted this writ of error with supersedeas.
The equity set up is, that Samuel, during the negotiation, represented the quantity of land sold to be fifty acres, and that it was ascertained to be within a half or three quarters of an acre of that quantity, by an experienced surveyor; and that, believing these representations, he bought the land at the rate of $20 per acre: That he had since discovered, that it contained not much more than half that quantity, and that Samuel well knew it; for he had bought it for twenty-five acres, and according to that quantity had listed it for taxation for several years previous to the sale, and thus had committed a fraud in the sale. He prays relief as to the deficit, and a confirmation of the contract, as to the residue.
The defendant denies positively, any such representation about the quantity; alleges that he did not know or state what it was, and that the sale was one in gross and not by the acre. Samuel gave his bond to convey the land when the last payment was made. This bond does not express the quantity; but binds Samuel to convey by certain metes and bounds. The deed held by Samuel from his vender, in like manner, is silent as to the quantity. The accurate quantity, ascertained by a survey in this suit, is thirty-seven acres and one half.
1. Two witnesses were present at the sale and attested the writings. Of these, one is very positive, that the quantity was represented to be fifty acres, and alleges, that his mind was convinced that was the true quantity, by the representations of Samuel before the writings were signed, and his testimony strongly supports the bill. The other speaks more strongly of the sale being in gross and not by the acre; but his testimony is nearly if not quite as strong on the point of misrepresentation. He deposes, also, that he was first told by Samuel of his intention to sell, and was told by him the quantity was fifty acres; that he communicated this information with the number of acres to the plaintiff, and then in a few days, the plaintiff and himself attended and made the purchase; so that through the instrumentality of the witness, the plaintiff went with the expectation of procuring a farm of that quantity. The same witness also testifies, that he drew the writings, and from the field notes, he attempted, by the direction of the other witness, he himself not being a surveyor, to make a calculation, which resulted in about the quantity now ascertained; but the defendant alleged, that Voorhies, the surveyor, had made it within the fraction of an acre of fifty acres, and of course, he, the witness, gave up his calculation, supposing Voorhies more competent to ascertain the true quantity. It is further shown, that just before the writings were signed, the plaintiff expressed a doubt about the quantity, and in reply the defendant insisted that the quantity was fifty, and told the plaintiff to measure it if he doubted. This reply carried with it such an air of confidence, as was calculated to remove the doubt of the plaintiff, and silence further inquiry, which was the effect produced by it. It...
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