Wiedeman v. Brown

• Decision Date: 23 April 1948
• Parties: WIEDEMAN v. BROWN et al.
• Court: Kentucky Court of Appeals

210 S.W.2d 764

307 Ky. 231

WIEDEMAN v. BROWN et al.

Court of Appeals of Kentucky

April 23, 1948

Appeal from Circuit Court, Fayette County; Chester D. Adams, Judge.

Action by G. Stanhope Wiedeman against Paul L. Brown and others to recover damages for a deficiency in the amount of land purportedly conveyed. From the judgment, plaintiff appeals and defendants cross-appeal.

Judgment affirmed on original appeal and cross-appeal.

M. Don Forman, of Lexington, for appellant.

Fowler & Fowler and Paul L. Brown, all of Lexington, for appellees.

CLAY Commissioner.

This action was brought by appellant to recover damages for a deficiency in the amount of land purportedly conveyed to him by appellees. The Chancellor found the shortage to be 3.162 acres, the value $275 per acre, and gave appellant judgment for $869.55. The appeal is on the ground that the land had a value of $500 per acre. Appellees cross-appeal, insisting no recovery at all should have been allowed.

On May 22, 1943, appellees conveyed to appellant a small farm near Lexington, which was thought by both parties to contain some small fraction over 30 acres. The farm consisted of three tracts, the principal one containing, according to the deed 29.961 acres. Sometime after this conveyance, appellant had the land surveyed and discovered for the first time that the principal tract contained only a little over 26 1/2 acres. The surveyor who had examined the property prior to its purchase by appellees re-surveyed it and admitted that there had been an error in calculations, and that a shortgage of over three acres existed. While there is some small difference of opinion as to the discrepancy, the proof amply supports the Chancellor's finding that the actual shortage was 3.162 acres. Though appellees contend that appellants are not entitled to any damages, the real controversy concerns the measure of damage; i. e., the fair value of the land which appellant thought he was buying but did not receive.

Both parties acted in perfectly good faith. Appellees thought they owned something over 30 acres, and appellant thought he was buying such a tract. There is some evidence that all of the boundaries of the farm could be plainly seen from a central point, but we do not believe this fact alone should deprive appellant of his right to recover for the shortage. 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 percent of the quantity purportedly sold. See Hunter v. Keightley et al., 184 Ky. 835 213 S.W. 201, and Wigginton v. Holbrook, 193 Ky 805, 237 S.W.2d 1063. Insofar as appellant's right to recover is concerned, it is immaterial whether or not this property was bought or sold by the acre.

It is however, appellant's contention that he did buy by the acre; that he offered and paid for the property $500 per acre; and that he is entitled to recover on that basis for the amount of the shortage. We are not inclined to agree with appellant's contention. The negotiations between the parties prior to the sale show that appellees put the farm on the market at $16,000. Their real estate agent received an offer from appellant of $15,000 for the farm. Thereafter appellant raised his bid $500, and appellees met this offer. It is true that appellant roughly estimated his offer at $500 per acre, but he was not buying the property on that basis. It is unnecessary to examine the ingenious reasoning by which appellant contends he paid to the last penny exactly $500 per acre...