No. 83-560 .b 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

JACK HUGO PARCEL, 

Plaintiff and Appellant, 

-vsMERLIN W. MYERS, et al., 

Defendants and Respondents. 

APPEAL FROM: District Court of the 'I'enth Judicial District, 

In and for the County of Fergus, 

The Honorable R. D. McE1hillips, Judge presiding, 

COUNSEL OF RECORD: 

For Appellant: 

Mark L. Stermitz; 

Stanford, Montana 

Law Off ic of John R. Christensen, 

For Respondents: 

William E, Berger; Wilkins & Berger, Lewistown, 

Montana 

Hauqe, Ober & Brown, Havre, Montana 

Submitted on Briefs: Nov. 29, 1984 

Decided: March 20, 1985 

Clerk 
Mr. Justice Frank :B. Morrison, Jr., delivered the opinion of 

the Court. 

Myers, respondent/cross a:?pell.ant., appeals from that 

porti.cm of the Ui.si-.ri.ct Court judgment. wli:?.ch reduceil the 

purchase price of the contra,c.t for deed in favor of Parcel, 

appellant. 

Parcel brought an ai:ti.on against Myers for reformation 

of the contract for c?red containing n defective legal description, Parcel's action against the surveyors responsible 

for the erroneous survey was dismissed with prejudice due to 

Parce1.'~ failure to respond to surveyors' motion to r?isnii ss. 

Finding no liability of defendorits to plai.nti.ffs, the trial 

court reformed t:he contract by correctinq the leqaI. description and reducing the puxc:hast? price. Parcel." sappeal From 

denial of fees and costs is addressed in our first opinion 

published in Parcel. v, Myers (Mont. 19841 - P.2d 41 

St .Rep. 2426, This supplemerit~al decision discusses Myers' 

cross appeal. 

Jack Parcel purchased appiroximatc)I.y el.even acres from 

M~?r1.i.r and Marcia Myers in 1.979. The contract for deed 

required Myers to have n survey of the subject property 

prepared and a certi5icate of :survey recorded. Parcel had 

the requisite survey pricr?: to closhq when the contract for 

deed was executed. 

Error in the legal description of the real, estate resu2tec.i From the surveyor using the edge of the adjacent 

county road as the starting poi!?+: of the description irisSead 

of the center line. This mistake shi.Fted the otherwise 

correct description of the land thirty feet to tihe north. 

Pursuant to this cIefecti.ve certificate of survey, the Mvers 

contracted tc convey a strip of land, thirty feet wide and 
approximately 700 feet I.ong, which helonged to their neighbor 

to the north. 

Parcel brought an action against Myers to have the legal 

description cor:recter! and the contract price reduced commensurate with that thirty foot wi.de strip of land which the 

Myers did not have merchantable title to convey. The 

district eourt judyment reformed the cowtract to correctly 

descrille the land conveyed and reduced the total purchase 

pr,ice in the amount of $1,500. 

The singular i-ssue in this cross-appeal is: 

I, Whether the sale of the property was "j.n grosss' 

barrinq appellank" enti.tlement to reformation of the contract for deed hy reduction of purchase price. 

At the outset of our discussion, we mention that nppeiiant dcoes not address this issue i~ either the origindl brief 

or a reply brief. ?'ethnically, the matter could be resolved 

by del:aul.t i.n favor of respondent /cross appellant. 

Myers contends that the real estate transaction was a 

sale in gross .which does not entitle the purchaser to any 

reduction in the total purchase price. We agree. 

The trial court's findings and conclusions 013 this issue 

are internally inconsistent and warrant reversal. Although 

the specific t.erm "i.n gross" is not used in the language of 

.its deoi.sion, the trial judge c!learl.y described a bulk real. 

estate transortion between Parcel and Ryers in its findings, 

in Finding No. V the trial court Found: 

"That Defendants and/or their agent represented to 

riaintiff the property to be conveyed was within 

the. existing fences, excIuC7inq the County Road 

right-of-way.'" 

Followed 1.qr Finding hro. VI wili ch reads: 

"That Pl-aintiff reasonably entitled to, and did, 

rely upon the representa+:.ions of said boundaries. '" 
The trial court's most convincing description of a real 

estate transactiori "in gross" is found in Finding No. XliI 

which provides: 

""Plaintiff looked at the property with Mr. Romcr 

Huges at least three (3) thes. They walked the 

property. The property is fenced on its borders 

and Mr. Buges c!xpLainecI to Plaintiff, 'you are 

Looking at what you get.' There was nu conversation about pri.ce per arxe. Negotiations were 

primarily about the total purchase price and 

buildj ngs, " 

After this unnnhi.guons description of a bulk sale of 

real estate, the trial court contradicted well.-establ.ished 

principles of law and ordered a $1,500 reduction in the 

original contract purchase price 

The leqal authority rs unequivocal on this subject. 77 

1W.JurS2d, Vendor and Purchaser, S YO provides: 

"A contract of sale by the acre is one wherein a 

specified quantity is material. Under such a 

contract the purchaser does not take the risk of 

any deficiency and the vendor does not take the 

ri.sk of any excess. The contract of sale by the 

.tract or in gmss i,s one wherein boundaries are 

specified, but quantity i!i no? specified, or if 

specified, the exist:enee of the exact quantity 

specified is not material; each party takes the 

risk of the actual quantity varying to some extent 

From what he expects it to he." 

We adopt the rationale of the Arizona Supreme Court 

wliich, oi.ting the ahom 1cqa.l authority, held: 

i* *. . "Therein, the rule was stated that on a sale of: 

land by its Lecgal ~iescripci.on, or other specific 

description by which its koundaries are made certain, for a sum i.ii gross, the boundaries will 

control in case of a discrepancy as tn quantity, 

and that such a sale in gross affords no remedy to 

the grantor or the grantee for an excess or deficiency unless such excess is so great as to raise a 

presumption of frayid." Carrel.1 v. Lux (1966), 101 

Ariz. 430, 420 P.2d 5G4, 572. 

The trial judye found no evidenre of cross appellants' 

intent to defrauc"ithe appel.lant , The opinion oes not explain the reformat.i.on of the contract purchase price as an 

exercise of the trial court s equitable power, 
For the reasons herein iliscussed, we reverse the District Court's decision reducing the original purchase price