### No. 83-560 

### .b IN 

### THE SUPREME COURT OF THE STATEOF MONTANA 1985

JACK HUGO PARCEL, Plaintiff and Appellant,

-vsMERLIN W. MYERS, et al., Defendantsand Respondents.

APPEAL FROM: District Court of the 'I'enthJudicialDistrict, Inand for the County of Fergus, TheHonorableR. D. McE1hillips,Judgepresiding,

COUNSELOF RECORD:

ForAppellant: Mark L. Stermitz; Stanford,Montana LawOffic 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

ClerkMr. Justice Frank :B. Morrison, Jr., delivered the opinion of theCourt. 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.tfor deed 

### infavor 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 torespond 

### to surveyors' motion to

### r?isniiss. 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 inParcel.

### v, Myers (Mont. 

### 19841 

### -P.2d 41 St.Rep. 

### 2426, This supplemerit~aldecision discusses Myers'

cross appeal. Jack Parcel purchased appiroximatc)I.y el.even acres from M~?r1.i.rand 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 startingpoi!?+: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 andapproximately 700 feet 

### I.ong, which helonged totheirneighbor to thenorth. Parcel brought an action againstMyers tohave 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,iceintheamount 

### of 

### $1,500. The singular i-ssue

### inthiscross-appeal is: I, Whether the 

### sale 

### of the property was "j.n grosss' barrinq appellank" enti.tlement to 

### reformation of the contract fordeed 

### hy reduction of purchase

### price. Atthe outset of our discussion, we mention that nppeiiantdcoes not address thisissue i~ eitherthe origindlbrief

or 

### a reply brief. ?'ethnically, thematter 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 

### inthe totalpurchase price. Weagree. The trialcourt's findings and conclusions 013 this issue



### are internally inconsistent and warrant reversal. Although the specific t.erm 

### "i.n gross" isnot used 

### inthe language of .its deoi.sion, the trial judge c!learl.ydescribed 

### a bulk real. estate transortion between Parcel and Ryers 

### in its findings, 

### inFinding No. V the trialcourt 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 wilich 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 whichprovides: ""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 atwhat you get.' There 

### was nu conversation about pri.ce per arxe. Negotiations were primarily about the total purchase price and buildjngs,

## " 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 contractpurchase 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 quantityvarying 

### to some extent From 

### what he expects it 

### to he." We adopt the rationale of 

### the Arizona Supreme Court wliich, oi.tingthe ahom 

### 1cqa.lauthority, 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 ingross affords

### no remedy to the grantor or the grantee for an excess or deficiencyunless such excess 

### is sogreat astoraise 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 thetrialcourt 

### s equitablepower,

### For the 

### reasons herein iliscussed, we 

### reverse the 

### Dis

### trict Court's 

### decision reducing 

### the original purchase price