Wallace v. Cummins

• Decision Date: 22 April 1960
• Citation: 334 S.W.2d 904
• Parties: R. E. WALLACE et al., Appellants, v. Alvin CUMMINS et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 904

334 S.W.2d 904

R. E. WALLACE et al., Appellants, v. Alvin CUMMINS et al., Appellees.

Court of Appeals of Kentucky.

April 22, 1960.

Nathan Elliott, Jr., Harbison, Kessinger, Lisle & Bush, Lexington, Woodson T. Wood, Fox, Wood & Wood, Maysville, for appellants.

William O. Miller, Eugene C. Royse, Maysville, for appellees.

MOREMEN, Judge.

Appellants, R. E. Wallace and Katie May Wallace, husband and wife, of Fayette County, desired to purchase a farm in Bracken County. They requested Ed McGuire, a real estate dealer of that county, to help them locate suitable property.

McGuire visited appellee, Alvin Cummins, who owned a 152 acre farm close to Brooksville on state highway No. 10. Cummins was reluctant to sell, but later priced his farm at $35,000 which was more than appellants could finance.

The parties then began negotiations for the sale of part of the farm adjoining the highway and it was finally agreed that appellants would purchase that tract of land for $24,500. This portion abutted the highway for about 1000 feet and on it were good farm improvements consisting of a six room, two-story frame house, a tobacco barn, stable, double garage, and several smaller outbuildings.

A determination of the true facts of the negotiations has become the most important point in this case. Appellants state that they discussed with appellee the number of acres to be purchased, and the contract and deed that were later executed were on the basis of a purchase of land by acreage.

Appellee contends that the sale of the land was by tract and in gross and that when appellants were unable to purchase the entire farm they indicated that they wished to buy the front portion of it. The parties then went to the farm where they decided on a tract which fronted on the state highway, and then extended southwardly between the farm of Case on the east and Parina Road on the west to a field fence running east and west across the farm. At that time they put some markers on the fence and discussed some minor changes in it and the repair of it.

Thereafter, they entered into a sales contract, the pertinent part of which reads:

'Witnesseth: that the first party has this day sold to the second party 90 acres, more or less, line as agreed upon by both parties and being a portion of land conveyed to the party of the first part by a deed from Mrs. John Lundrigan * * *' Later the appellees executed a deed of conveyance to the appellants, the descriptive part of which reads:

'Situate lying and being in Bracken County, Kentucky on the Brooksville and Germantown highway, and the Brooksville and Mt. Olivet Turnpike. Being about one and one half miles East of Brooksville, Ky. on highway No. 10.

'Bounded on the North by Kentucky Highway No. 10; on the East by the land of Willie Case; on the South by Alvin Cummins land; and on the West by the Brooksville and Mt. Olivet turnpike also known as the Parina Road. Containing 90 Acres of land, more or less.'

Appellants took possession of the farm and an allotment of the tobacco base was made. Appellants were apparently content for about a year, and until they caused a survey to be made from which it was determined that the tract of land which they had purchased contained only 56.4 acres. Thereupon this suit was filed in which appellants prayed that appellees be required (1) to convey 33 6/10 acres of their adjoining land or (2) to repay the purchase price of land plus $500 in improvements placed thereon by appellants, in return for a reconveyance of land, or (3) to pay $8,400 with interest which sum would repay the deficiency in acreage at the rate of $250 per acre.

Issues were properly joined including a plea by appellees that the phrase, '90 acres of land' had been placed in the contract by mutual mistake of the parties.

The chancellor impaneled an advisory jury which in response to various interrogatories found that neither party knew the correct acreage of the tract, and that the expression '90 acres, more or less' was made only for the purpose of description and in such a manner as to indicate that the parties intended to risk the contingency of quantity whatever it might be, regardless of whether it exceeded or fell short of 90 acres. The court accepted the advice of the jury and concluded that the statement of acreage in the contract of sale and deed of conveyance was not binding on either party.

On this appeal, counsel are agreed that the fundamental law on this subject was well stated in the oft cited case of Harrison v. Talbot, 2 Dana 258, 32 Ky. 258.

In that case, the court, after a thorough discussion of cases previously decided in this state, said:

'As was truly observed in Young v. Craig , the equity of each case must depend on its own peculiar circumstances. The relative extent of the surplus or deficit, can not, per se, furnish an infallible criterion. The conduct of the parties--the date of the contract--the value and extent and locality of the land--the price--and other nameless circumstances are always important and generally decisive.

'Sales in gross may be subdivided into various subordinate classifications; First--Sales strictly and essentially by the tract, without reference in the negotiation or in the consideration to any estimated or designated quantity of acres. Second--Sales of the like kind, in which though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description and under such circumstances or in such manner as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how-much-soever it might exceed or fall short of that which was mentioned in the contract. Third--Sales in which it is evident from extraneous circumstances of locality, value, price, time and the conduct and conversations of the parties, that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might be reasonably calculated on as within the range of ordinary contingency. Fourth--Sales which, though technically deemed and denominated sales in gross are, in fact by the acre and so understood by the parties.

'Contracts belonging to either of the two first mentioned classes, whether executed or executory, should not be modified by the chancellor when there has been no fraud.'

Of the Harrison case (decided in 1834) in 1 A.L.R.2d at page 67, this was said:

'This doctrine has been quoted with approval in a great many later decisions from various jurisdictions and has been praised for its broad and comprehensive equity and its practical wisdom, although it has not altogether escaped criticism.'

It is unnecessary for us to discuss the numerous cases of this court where reliance was on the opinion in the Harrison case, because a comprehensive analysis of them may be found in 1 A.L.R.2d at pages 67 to 73, inclusive.

We should remark, however, that in a number of opinions the Harrison case was cited as authority for decision when support is not to be found in it. Particularly, we point to some of those cases where the '10 per cent rule' has been applied. For instance, in the case of Wiedeman v. Brown, 1948, 307 Ky. 231, 210 S.W.2d 764, 765, we said:

'It is well settled in this state that a vendee of land may recover for a shortage in acreage regardless of whether the sale is in gross or by the acre, if the deficiency equals or is in excess of 10 per cent of the quantity purportedly sold. See ...