#### Butt, Respondent, vs. Smith, Appellant.

*March 25*

April *19, 1904.*

*Contracts: Sate of land,: Consideration: Mistake: Parol evidence: Recovery of overpayment.*

Where, pursuant to an oral agreement for the sale of a tract of land at a certain price per acre, the land was conveyed, hut, by a mutual mistake of the parties as to the real number of acres, the consideration recited in the deed and actually paid *567was excessive, the agreement was not merged in the deed, but may be shown by parol evidence, and the overpayment may be recovered. *OKlert v. Alderson,*86 Wis. 433, distinguished.

Appeal from a judgment of the circuit court for Vernon county: J. J. Emm?, Circuit Judge..

*Affirmed.*

This is an action to recover $105.80 as an overpayment on a conveyance of land. Respondent alleges that he and ap-pellant entered into an oral agreement whereby appellant agreed to sell and convey to him the east half of the northeast quarter of section 36, township 13, range 5, at an agreed price of $50 an acre, and that it Was mutually agreed and understood that the tract conveyed contained eighty acres, and that the amount paid was computed upon such belief and understanding. Pursuant to the agreement, appellant conveyed the tract of land by deed reciting that it was “for and in consideration, of the sum of four thousand dollars,” paid him by respondent, the receipt whereof was acknowledged in tho deed, and the land so conveyed to respondent was therein described as follows: “The east half of the northeast quarter of section 36, township 13, range 5.” The deed was delivered to respondent, who paid the appellant the $4,000 as the consideration, took possession of the premises, and is still in possession of them. Shortly after the conveyance, respondent' caused the tract to he surveyed, and found that it contained only 77.88 acres. He demanded repayment of the *pro ratal*part of the consideration for such shortage, which was refused by appellant. He then brought this action to recover the overpayment upon the ground that he and appellant made a mistake in computing the amount, of the consideration to he paid under the agreement for the land actually conveyed *by*the deed. There is no claim of fraud in the case. Respondent admits that he has received the full tract purchased by. him, but' asserts that through this mistake in computing the consideration to be paid for the number of acres conveyed he overpaid respondent the sum of $105.80.

*568Appellant objected to the reception of any evidence under tbe complaint upon tbe ground tbat respondent bad accepted tbe deed describing tbe land as an entire tract at tbe agreed gross sum of $4,000, and tbat be could not sbow any prior oral agreement of sale at a stipulated price per acre for tbe actual number of acres conveyed after having accepted tbe' deed and paid tbe consideration. Tbe case was submitted to tbe jury, wbo under proper instructions found tbat tbe parties made a mistake as to tbe number of acres in tbe tract, and tbat tbis resulted in an overpayment of tbe sum claimed, and tbat respondent was entitled to recover tbe same. Tbe court awarded judgment for tbe amount of damages and for costs. Tbis is an appeal from tbe judgment.

*II. P. Procior,*for tbe appellant,

cited *Marvin v. Bennett,*26 Wend. 169; *Wood v. Murphy,*47 Mo'. App. 589; *Frenche v. Chancellor,*51 N. J. Eq. 624, 27 Atl. 140; *Pringle v. Rogers,*193 Pa. St. 94; *Williams v. Hathaway,*19 Pick. 387; *Ohlert v. Alderson,*86 Wis. 433; *Howes v. Barker,*3 Johns. 506; *Lane v. Parsons,*108 Iowa, 241, 79 N. W. 1039; *Wilson v. Riddick,*100 Iowa, 697, 69 N. W. 1039.

For tbe i*espondent there was a brief by *C. W. Graves*and *C. M. Butt, Jr.,*and oral argument by *Mr. Graves.*

SiebbcKEE, J.

Respondent’s right to recover in tbis action is predicated upon tbe claim tbat be overpaid appellant for tbe land conveyed to him by tbe deed through tbe mutual 'mistake of himself and appellant as to tbe number of acres included in tbe tract of land. ITe asserts tbat before tbe deed was executed and delivered it was agreed between himself and appellant, as owner of tbe farm, tbat be would buy it and pay therefor at tbe rate of $50 per acre; tbat be and appellant mistakenly believed that it contained eighty acres, and tbat they computed tbe amount of tbe consideration as expressed in tbe deed upon tbat basis. Tbe jury, under full and proper instructions upon tbe issues, found tbat respond*569ent was to pay for the farm at the rate of $50 per acre for ■the number of acres actually conveyed, and tbat there was an overpayment to the amount claimed by respondent, due to the fact that both parties labored under the mistake as to the number of acres in the tract at the time of the negotiations and when the consideration was paid.

Appellant contends that parol evidence of the preliminary agreement cannot be received, upon the ground that this preliminary agreement for the sale and purchase of the farm merged in the deed, and such parol evidence would alter, vary, or contradict it. That this rule does not apply to the’ consideration expressed in the deed is confirmed by many decisions. Parol evidence is admissible to show the real consideration of the conveyance, though it be different from that expressed in the deed, if it be consistent therewith. *Powers v.*Spaulding, 96 Wis. 487, 71 N. W. 891; *Cuddy v.*Foreman, 107 Wis. 519, 83 N. W. 1103; *Brader v.*Brader, 110 Wis. 423, 85 N. W. 681. Nor is the deed conclusive upon the parties when it appears that the amount of the consideration was computed upon a mutual mistake of the parties as to the quantity of land actually conveyed. Whenever the fact appears that the deed does not express the previous agreement of the parties by reason of mutual mistakes, courts of equity have not hesitated to grant relief to meet the exigencies of the situation in conforming the nominal agreement to the real one, or by an abatement from the purchase money when the mistake was susceptible of correction in this way. *Darling v.*Osborne, 51 Vt. 148; *Hill v.*Buckley, 17 Ves. Jr. 394; *Paine v.*Upton, 87 N. Y. 327; *Hubbard v. Marshall,*50 Wis. 322, 6 N. W. 497. Recovery has been awarded in eases wherein it appeared that land was purchased under a preliminary agreement, which was not intended to be fully embodied in the deed, but which fixed the terms of the sale by the acre, and wherein it appeared that there was -an overpayment of the purchase price through the *570mutualmistake of tbe parties as to tbe actual number of acres-included in tbe tract conveyed. Tbe ground of recovery in sucb cases is based upon tbe preliminary contract, which has been 'in part performed by the conveyance and payment of tbe consideration, but which has not been wholly merged in tbe deed. Tbe additional elements of sucb contracts, relied on for a recovery, must be sucb as are not embodied in and in no way contradict, vary, or modify tbe effective part of tbe conveyance as agreed to and accepted by tbe parties. This relief is given upon tbe equitable consideration that tbe overpayment resulted from a mutual mistake of tbe parties, which should preclude either from reaping an advantage to tire injury of tbe other on account of sucb error. Since sucb circumstances do not require a reformation of tbe deed, there is nothing which calls for tbe extraordinary powers of the court of equity. Tbe controlling question is, Was there an overpayment under terms of the contract of sale, *which*terms have not been merged in tbe deed ? If so, tbe vendor-ought to be held liable therefor to tbe vendee in an action for money bad and received. Tbe cases upon this subject, though seemingly somewhat in conflict, can be harmonized by distinguishing those which pertain to transactions which are merged and embodied in the deed and those wherein recovery is sought to be enforced upon the terms of the preliminary contract not embodied in and merged in the conveyance. *Witbeck v.*Waine, 16 N. Y. 532; *Cardinal v.*Hadley, 158 Mass. 352, 33 N. E. 575; *Ludeke v. Sutherland,*87 Ill. 481; *Green v.*Batson, 71 Wis. 54, 36 N. W. 849; *Ohlert v. Alderson,*86 Wis. 433, 57 N. W. 88; *McKinnon v. Vollmar,*75 Wis. 82, 43 N. W. 800; *Cuddy v.*Foreman, 107 Wis. *519,*83 N. W. 1103; *Brader v.*Brader, 110 Wis. 423, 85 N. W. 681. The language in the opinion of *Ohlert v. Alderson,*supra, when disassociated from the facts in the case, may be interpreted to include the instant case; but when applied to the facts then before the court it will be observed that the *571case is clearly distinguishable from the case now before ns. In the *Ohlert Case*the preliminary contract of sale was in writing, embodying agreements of the parties which were-merged in the deed. The court stated the grounds of the decision thus:

> “The contract and deed clearly stated a sale and conveyance of what may be aptly termed as a Tump quantity for a definite gross sum, and as there was no allegation of fraud or mistake, parol evidence to the contrary was certainly inadmissible ; and it was wholly immaterial how the parties arrived at the sum to be paid, or whether there was any discussion or understanding as to- the quantity of the land. All these matters are merged in the written instruments, and' their language is decisive and final.” . .

We must hold that the terms of the agreement, fixing the-price of the land at $50 per acre, were not incorporated and merged in the deed, and that the objection to the reception-of any evidence under the complaint was pro-perly overruled.

The errors-assigned upon the instructions given bear itponi the same question, and therefore require no further consideration.

*By the Gourt.*— Judgment affirmed.