#### Ullom *et al. versus*Carpenter, Administrator, etc., of Rom.

A farm was sold by articles, describing it by the adjoiners, without courses and distances or marks, as “supposed to contain 178 acres, more or less,” at $19 per acre. The articles contained no reservation for measurement. *Held,*the articles being executory, that the quantity and sum to be paid were to be ascertained by survey.

November 17th, 1874.

Before Agnew, C. J., Sharswood, Mercur, and Gordon, JJ.

Error to the Court of Common Pleas of *Greene*County, of October and November Term, 1874, No. 86.

This was an equitable action of ejectment brought Her cember 21st, 1871, in the Court of Common Pleas of Greene County, by Henry Rom against Silas Ullom and John Hughes to recover the purchase-money of a tract of land of 192 acres.

The plaintiff having died subsequently to the commencement of the suit, William Carpenter, his administrator, was substituted.

The action was based on articles of agreement, dated December 27th, 1867, between the said Henry Rom, of the first part, and Silas Ullom, one of tbe defendants, of the other part.

By the articles, Rom agreed to sell to Ullom his farm, situate, etó., adjoining lands of, etc., naming several adjoiners, but giving no courses or distances, nor marks, “ supposed to contain 178 acres, more or less, for which the second party is to pay unto the first party, nineteen dollars per acre, as follows: five hundred dollars on the 1st of April, 1868, and five hundred dollars thereafter until all is paid, without interest.....For which the first party agrees to make unto the second party a good and sufficient deed for said property when two thousand dollars are paid by the second party, and giving judgment notes for the balance of the purchase-money. The first party agrees to give possession unto the second party on the 1st of April, 1868, in full.” ....

By indorsement on the articles it appeared that there had been paid up to 24th of April, 1869, in different sums, $762.

*504The case was tried, February 12th, 1874, before Will-son, P. J.

The plaintiff gave in evidence the title of Rom, and the articles of agreement.

He also offered to prove, by George Hoge, the contents of the farm, and by William Kinkaid, what occurred at the time the articles of agreement were written

The defendant objected to the offer on the ground that the evidence tended “ to reform, alter, and vary the written articles of agreement, without any allegation of a mistake in the scrivener, or fraud in the execution of the agreement.”

■ The evidence was admitted, and bill of exceptions sealed.

*Hoge*testified that he made a survey of the farm at the request of Rom; he and Ullom were present at the survey; the farm contained 192 acres and 68 perches.

*Kinkaid*testified: At the time of the writing of the agreement, Rom and Ullom talked over the number of acres, and they agi'eed that the farm should be surveyed and the number of acres ascertained.

On cross-examination, witness said: That he read tho articles over two or three times to the parties, and they adopted them.

The defendants’ fourth point, and the answer, are as fol - lows:

The amount of the purchase-money is to be measured by . the number of acres named in the articles of agreement at nineteen dollars per acre; the land being sold at 178 acres, more or less, or in the lump.

Answer : This point does not arise in this trial, yet that it may be settled we refuse it.

The Judge, in his charge, also said:

*“*The defendants also urge that they are only to pay for 178 acres of land, although it appears from the survey that the tract contains 192 68-100 acres. We do not agree with this construction, and say to the jury that defendants must pay for each and every acre contained in the farm. But, it is for the jury to determine, from the evidence, how many acres the tract really contained, and we refer them to the evidence of George Hoge on that subject.”

The verdict was for the plaintiff, to be released on the payment of $2022.50.

The defendants removed the record to the Supreme Court by writ of error, and assigned for error the admission of the evidence objected to, the answer to their point, and the portion of the charge as above.

*505*JE. M.*Sayres, for plaintiff in error.

Where the, parties do not treat on the basis of actual measurement they waive it, and agree to give and take the tract as it is estimated, using the *supposed*quantity and stipulated price per acre ; but as data to arrive at the value in gross; they treat in fact as if the land were bought and sold in the mass, and for a round sum, and the vendor is answerable, in respect to the quantity only, for *malafides:*Hershey *v.*Keembortz, 6 Barr, 128 ; Smith *v.*Evans, 6 Binney, 102 ; Galbraith *v.*Galbraith, 6 Watts, 117 ; Glen *v.*Glen, 4 S. & R., 493 ; Ashcom *v.*Smith, 2 Penna. R., 211; McClelland *v.*Creswell, 13 S. & R., 143 If the vendee had been informed that the tract contained more acres than the estimated quantity he might not have purchased the farm : Phillips *v.*Scott, 2 Watts, 322. In such case it makes no difference whether the contract was executed or executory: Wier *v.*Dougherty, 3 Casey, 182.

*Donley and Inghram,*for defendant in error.

Where a sale of land is by the acre, the right of ascertaining the quantity by a survey exists, whether reserved or not: Bailey *v.*Snyder, 13 S. & R., 160.

Judgment was entered in the Supreme Court, November 21st, 1874.

Per Curiam :

The contract in this case was executory, and not for a quantity of land fixed by the parties as a measure of the purchase-money. Being by the acre, a survey was necessary to ascertain the sum to be paid upon it. This varies the case from those cited, which were upon executed contracts where no reservation was made of a right to ascertain the sum by survey, and from other cases where the sale was by reference to a draft or other means of ascertaining the quantity.

The other questions were not argued.

Judgment affirmed.