Odson v. Swanson

FINCH, P. J.

The plaintiff and the defendants entered into a written contract by the terms of which the latter agreed to sell and the former to buy an irregular tract of land which, according to a subsequent survey, contains 4.82 acres. The agreed purchase price was $1,650, of which the sum of $660i was paid at or before the execution of the contract. The remainder was to be paid in semi-annual installments. This action was instituted for the cancellation of the contract and the recovery of the sum paid, on the ground of misrepresentations alleged to have been made by defendants as to the number of acres contained in the tract. The plaintiff was given judgment as prayed for and the defendants have appealed.

The defendants had resided on the premises for about two years prior to the execution of the contract. They listed the property for sale with a real estate agent and authorized him to sell the same at the price and upon the terms which were later embodied in the contract of sale. Mr. Swanson testified that, at the time the property was listed with the agent, “I told him the party that sold to me told me there

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was six [aeres]; I did not know.”, The agent placed a card in his window describing the property and stating that it contained six acres. The card attracted the plaintiff’s attention and, after making inquiries of the agent, he inspected the property and, while on the premises, he inquired of Mr. Swanson how many acres were in the tract. The defendant testified: “He asked me how many acres in there. I told him I did not know how many acres there were there, but the party that sold to me told me there were six acres, but I could not tell him how many acres there were. ... He asked me if there were six acres. ... I told him I did not know.” Plaintiff testified relative to the same conversation with Swanson: “I said, ‘Well, it is kind of hard to see, being an irregular piece like that, but it looks very likely it is six acres.’ ... He said, ‘It may be less, it may be a little more.’ ” On the same day the plaintiff returned to the agent’s office and paid $50 on the purchase price of the property. The agent thereupon signed and delivered to the plaintiff an instrument acknowledging receipt of the $50 “as a deposit on account of the purchase of ... 6 acres more or less . . . now owned by O. H. Swanson” and stating the terms of the sale. The plaintiff also signed the instrument. Thereafter the plaintiff and the defendants executed the written contract first referred to and the plaintiff paid the additional sum of $600 and took possession of the property. A few days later the plaintiff measured the land and computed its area as 4.7 acres. Thereafter the plaintiff served notice of rescission of the contract and demanded the return of the money paid. One witness testified that he saw Swanson measuring the land before the latter purchased it. Another testified that while Swanson was residing on the premises he told the witness that the tract contained 4.75 acres. A receipt for taxes paid by the defendants refers to the tract 'as containing 4.375 acres. Mr. Swanson testified that he “never looked inside of the tax receipts.”