No. 53-560 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 Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable R. D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Mark L. Stermitz; Law Office of John R. Christensen, 

Stanford, Montana 

For Respondents: 

William E. Berger; Wilkins & Berger, Lewistown, 

Montana 

Hauge, Ober & Brown, Havre, Montana 

Submitted on Briefs: Nov. 29, 1984 

Decided: March 20, 1985 
Mr. Justice Frank B. Morrison, Jr., delivered the opinion of 

the Court. 

Myers, respondent/cross appellant, appeals from that 

portion of the District Court judgment which reduced the 

purchase price of the contract for deed in favor of Parcel, 

appellant. 

Parcel brought an action against Myers for reformation 

of the contract for deed containing a defective legal description. Parcel's action against the surveyors responsible 

for the erroneous survey was dismissed with prejudice due to 

Parcel's failure to respond to surveyors' motion to dismiss. 

Finding no liability of defendants to plaintiffs, the trial 

court reformed the contract by correcting the legal description and reducing the purchase price. Parcel's a.ppea1 from 

denial of fees and costs is addressed in our first opinion 

published in Parcel v. Myers (Mont. 1984), P.2d I 41 

St.Rep. 2426. This supplemental decision discusses Myers' 

cross appeal. 

Jack Parcel purchased approximately eleven acres from 

Merlin and Marcia Myers in 1979. The contract for deed 

required Myers to have a survey of the subject property 

prepared and a certificate of survey recorded. Parcel had 

the requisite survey prior to closing when the contract for 

deed was executed. 

Error in the legal description of the real estate resulted from the surveyor using the edge of the adjacent 

county road as the starting point of the description inst.ead 

of the center line. This mistake shifted the otherwise 

correct description of the land thirty feet to the north. 

Pursuant to this defective certificate of survey, the Myers 

contracted to convey a strip of land, thirty feet wide and 
approximately 700 feet long, which belonged to their neighbor 

to the north. 

Parcel brought an action against Myers to have the legal 

description corrected and the contract price reduced commensurate with that thirty foot wide strip of land which the 

Myers did not have merchantable title to convey. The 

district court judgment reformed the contract to correctly 

describe the land conveyed and reduced the total purchase 

price in the amount of $1,500. 

The singular issue in this cross-appeal is: 

1. Whether the sale of the property was "in gross" 

barring appellant's entitlement to reformation of the contract for deed by reduction of purchase price. 

At the outset of our discussion, we mention that appellant does not address this issue in either the original brief 

or a reply brief. Technically, the matter could be resolved 

by default in 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 on this issue 

are internally inconsistent and warrant reversal. Although 

the specific term "in gross" is not used. in the language of 

its decision, the trial judge clearly described a bulk real 

estate transaction between Parcel and Myers in its findings. 

In Finding No. V the trial court found: 

"That Defendants and/or their agent represented to 

Plaintiff the property to be conveyed was wj-thin 

the existing fences, excluding the County Road 

right-of-way. " 

Followed by Finding No. VI which reads: 

"That Plaintiff reasonably entitled to, and did, 

rely upon the representations of said boundaries." 
The trial court's most convincing description of a real 

estate transaction "in gross" is found in Finding No. XI11 

which provides: 

"Plaintiff looked at the property with Mr. Homer 

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

property. The property is fenced on its borders 

and Mr. Huges explained to Plaintiff, 'you are 

looking at what you get.' There was no conversation about price per acre. Negotiations were 

primarily about the total purchase price and 

buildings." 

After this unambiguous description of a bulk sale of 

real estate, the trial court contradicted well-established 

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

original contract purchase price. 

The legal authority is unequivocal on this subject. 77 

Am.Jur.2d, Vendor and Purchaser, S 90 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 

risk of any excess. The contract of sale by the 

tract or in gross is one wherein boundaries are 

specified, but quantity is not specified, or if 

specified, the existence of the exact quantity 

specified is not material; each party takes the 

risk of the a.ctua1 quantity varying to some extent 

from wha-t he expects it to be." 

We adopt the rationale of the Arizona Supreme Court 

which, citing the above legal authority, held: 

"Therein, the rule was stated that on a sa.le of 

land by its legal description, or other specific 

description by which its boundaries are made certain, for a sum in gross, the bounda.ries will 

control in case of a discrepancy as to 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 fraud." Carrel1 v. Lux (1966), 101 

Ariz. 430, 420 P.2d 564, 572. 

The trial judge found no evidence of cross appellants' 

intent to defraud the appellant. Th.e opinion does not explain the reformation of the contract purchase price as an 

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

by $1,500. 

We concur: