Opinion
November 16, 1955.
Appeal from Supreme Court, Madison County.
Plaintiff brought this action to reform a deed given by him to defendants. By counterclaim, defendants sought damages for misrepresentation by plaintiff of the acreage of the farm intended to be conveyed. On the trial, defendants conceded that by inadvertence a parcel which defendants did not purchase was included in the description and that reservations of property previously sold by plaintiff were omitted therefrom. Plaintiff has secured the affirmative relief he desired and defendants were awarded $1,000 damages upon their counterclaim. Plaintiff has appealed from that part of judgment unfavorable to him. At the time plaintiff listed his farm for sale, he informed the real estate broker that it contained 101 acres. When defendants showed interest in purchasing a farm, this information was furnished them by the broker. Defendants inspected plaintiff's farm, twice asked plaintiff the number of acres it contained and on both occasions he mistakenly told them it contained 101 acres. Defendants bought the farm, stock and tools for $26,000. After the conveyance, defendants for the first time discovered that the land plaintiff intended to sell and defendants agreed to purchase contained 88 1/2 acres instead of 101 acres. The Official Referee has found that the quantity of land was a very material consideration in the minds of both parties at the time of the sale and that the assumption that there were 101 acres had a definite influence in fixing the sale price. The record sustained these findings as well as the assessment of damages. Plaintiff argues that the purchase of the farm was in bulk and not by acreage and that therefore defendants may not recover damages for a misrepresentation of the number of acres in the farm. However, where, as here, it is clear that the number of acres was considered material by the parties and that it affected the consideration agreed upon, a misrepresentation or mutual mistake as to quantity entitles the purchaser to damages even though the sale price was not fixed on a per acre basis. ( Paine v. Upton, 87 N.Y. 327; Mills v. Kampfe, 202 N.Y. 46; Firenzo v. Baxter, 267 App. Div. 799.) Judgment affirmed, without costs.
I dissent and vote to reverse the judgment for defendants on their counterclaim and to dismiss the counterclaim. The defendants purchased for a lump sum the entire farming operation of the plaintiff, including the farm, stock, crops and tools. No price per acre was mentioned. The boundaries of the farm were shown to defendants correctly. Defendant, Carl R. Zimmer, spent nearly an entire day examining the premises and looking at the fields which made up the premises. He received exactly what he saw, and made no complaint about a shortage in acreage until the shortage was called to his attention about four years later. While defendants testified that plaintiff told them the farm contained approximately 101 acres (actually it contained 88 1/2 acres), they subsequently signed a written contract which identified the farm but did not specify the number of acres. Concededly there was no intentional fraud. I think this is a classic example of a bulk sale of the premises and personal property, as viewed, and that an allowance for deficiency in quantity was not warranted. ( Johnson v. Taber, 10 N.Y. 319; Hunt v. Wall, 211 App. Div. 856, affd. 240 N.Y. 696; Moffett v. Jaffe, 132 App. Div. 7; Ireland v. Baylis, 188 App. Div. 981.)