Wolcott v. Moore
| Decision Date | 01 November 1910 |
| Docket Number | 7,056 |
| Citation | 92 N.E. 880,46 Ind.App. 427 |
| Parties | WOLCOTT ET AL v. MOORE |
| Court | Indiana Appellate Court |
From Superior Court of Marion County (72,380); John L. McMaster Judge.
Action by Eben H. Wolcott and others against Robert E. Moore. From a judgment for defendant, plaintiffs appeal.
Affirmed.
Frederick E. Matson and Joseph E. Cowern, for appellants.
Samuel Ashby, for appellee.
The parties hereto, on January 6, 1903, made a written contract for the sale and purchase of certain real estate then owned by appellee. The terms of said contract, so far as they are material to the present controversy, were as follows:
"This indenture witnesseth that said Moore has this day sold his land in Harrison township, Knox county, Indiana, containing 500 acres, more or less, to parties of second part, at the price of $ 35 per acre, amounting to $ 17,500, net of commissions, and said Moore hereby agrees, if so requested by parties of second part before March 1, 1903, to have these lands surveyed, and if there is less than 500 acres to deduct for such shortage at the contract price, and if there is an excess, the parties of the second part hereby agree to pay for same at the contract price per acre."
On February 21, 1903, appellee executed his deed in accordance with the terms of the contract and payment was duly made to him. The description in said deed was followed by a clause "containing in all 500 acres, more or less." In appellants' first paragraph of complaint, they aver that they caused a survey of said land to be made in the month of....., 1906, that they caused an accurate survey of said tract to be made, and found it contained only 463.47 acres, a deficiency of 46.53 acres, and they asked judgment for the amount paid by them therefor. The second paragraph of complaint contains the additional averments that before the execution of said deed appellee stated to appellants that said tract of land, upon survey thereof, would be found to contain 500 acres; and that it did contain 500 acres, and that by reason thereof they did not demand a survey of the tract of land before March, 1903. Demurrers were sustained to both paragraphs of complaint, and such rulings are assigned as errors. The law is very well settled that "in case one purchases real estate at a given price per acre and the purchaser and seller have a common belief that there is of said real estate a given number of...
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