Opinion
Decided November 9th, 1926.
Where a contract for sale of land covered a certain tract of land, stating the acreage with the qualification, "more or less," but referred to a map which stated the acreage, the fact that the acreage was less than the quantity stated on the map is no excuse for failing to perform the contract.
On bill, c. On pleadings and proofs.
Messrs. Morrison, Lloyd Morrison, for the complainant.
Mr. Fred W. Mattocks, for the defendant.
This is a bill for specific performance of a contract for the conveyance of a tract of land at Rockleigh, Bergen county, New Jersey, executed August 10th, 1925.
Both the complainant and defendant desire specific performance, but complainant asks for an abatement in the purchase price because of an alleged discrepancy in the acreage of the property to be conveyed. Defendant contends that the contract was for the sale of a given tract, regardless of acreage, and that there should be no abatement in the purchase price.
According to the complainant the map of the property exhibited prior to the making of the original contract with Frank E. Smith, Inc., showed one hundred and ninety-five and one-fourth acres in the tract. The true acreage is now asserted to be one hundred and fifty-two and sixty-one hundredths, a shortage of forty-two and sixty-four hundredth acres; a little less than twenty-two per cent. Upon the making of the final contract with the complainant, for whom Frank E. Smith, Inc., appears to have acted as agent, it was specifically insisted in behalf of the defendant that the sale was to be of the tract in question, as located on the westerly side of the Carteret road, regardless of area, and specific acreage was therefore not included in the contract except by a reference thereto with the customary qualification of its being "more or less."
I am satisfied from the proofs presented that such was the contract, and under the circumstances there can be no abatement in the purchase price.
I am, therefore, constrained to advise a decree for specific performance in accordance with the strict terms of the agreement of August 10th, 1925.
Defendant, however, concedes that the complainant is entitled to have its bill dismissed, the contract rescinded, and to receive from the defendant the amount of money paid on account thereof, in lieu of specific performance of the contract without abatement in the purchase price, if it shall so elect, and tenders such repayment and a release to complainant from all obligations under its agreement.
If, therefore, the complainant shall so elect within a time to be fixed by the decree, the bill will be dismissed; otherwise, specific performance will be decreed as above indicated.
The terms of the decree will be settled at any time that counsel may appear before me for that purpose on appropriate notice.