The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1886-08-10


crlbed as a wharf lot on Border street, bounded
/ on one side by the ship yard of Paul Curtis, anC
on the other side by that of Donald Mckay, and q:
measuring about go feet on Border street, more
or less. The land actually measured only 10 feet
on Border street. The case is stronger for the de
PENDANT than the one now before me, for, as the
4 Court say, the land was stated TO be bounded Oh
either side by ship-yards. in the occupation of per
I sons named, the limits of which would apparently
! be manifest upon looking at the premises.
The Massachusetts Court refer to the case OF
Hill Buckley, IL Vesey 1874, (1S1l in which Sil
William Grant, NJ. r., held that the general rule
| of specific performance was that the purchaser
shall have what the vendor give, with abate-
! ment of the purchase money for so much as the
| quantity falls short of the representation. This
case is relied ON by the counsel for defendant In
! the case at bar The contract of sale called foI
! the "Kestle Woods. including the Gulberry Marsh
containing 217 and 10 peIchesn 1t fell short
| by about rs acres. No deception was intended
| and the Master of the Rolls saws when repre-
sentation has been made to the quantity, though
lnnocently, apprehend the right of the purchaser
to be, to have what the vendor can give, with an
abatement out of the purchase money for as much
as the quantity falls short of the representation
That is the rule generally, as though the land is
neither bought nor sold professedly by the acre,
the presumption is that in fixing the price regard
was had on both sides to the quantity which both
suppose the estate to consist of The demand of
the vendor and the offer of the purchaser are sup
posed to be Influenced in an equal degree by the
quantity which both believe to be the subject of
their bargain, therefore a rateable abatement of
price Will probably leave both in nearly the same
relation in which they would have Stood if the true
quantity had been originally known" As the pur-
chaser had got the quantity of wood which he bar
gained for, the Court awarded an abatement for
the value of &c acres of land deductino the value
of the wood on it.
The Court In the Massachusetts case, (99 Mass J
thought that the authority of this case was shaken
by later case, (Which VS.. Winchester, YES and
b. 800 from the same Judge, in which he declined
i'm thp for
deficiency of i've or SIX acres, where the sale was
of 81 acres more or less" and the vendor did not
know the true quantity, and made no other repre-
sentation what it was.
1t seems to me that the amount of the deficiency
In each case has a very great influence upon the
Court in settling the question as to abatement.
In Belknap vs. Sealey, IA n Y, the Court of ap-
peals held that Court of equity will rescind an
executory contract on the application of the ven
dee, for the purchase of land, on the ground of
mistake in quantity, notwithstanding the premises
are described by metes and bounds, and the terms
more or less" added after a statement of the
quantity, where the mistake the part of the
purchaser was caused by the Instrumentation of
the vendor, although not fraudulently made, and
when the mistake SO essentially affected the value
of the premises that the contract would not have
been made If 1t had existed" The land was des-
cribed by metes and bounds, and as containing
eight acres more or less" The actual quantity
was four acres An abatement in price was not
claimed, but the vendee asked to have the contract
the land, and states the number of acres although
with the words more or less, clearly imports that
there is not great deficiency or excess If the de-
fceHcy IS one hail. the instrument carries on its fce
opinion on the ground that the contract was still
executory and that equity ought to relieve against
a contract where the mistake is so material as to
go to the foundation of the agreement.
Judge Story's opinion in StebbinS as. Eddy, 4 Ma
son Ala, (1827 is much quoted in subsequent cases
and is relied upon by the plaintiff in our He
says there is much good sense in holding that the
words "more or less" or other equivalent words
used Ill contracts conVeyances of this should
be construed qualify the representation of guam
tity IN such manner, that, if made in good faith,
neither party should be entitled to any relief on
account of efficiency or surplus, nor am pre-
pared to admit that the fact that the sale is not in
gross, but for specific sum by the acre, ought
necessarily to create difference in the application
of the principle. do not say that cases may not
occur of such an extreme eciencu as to call for re-
the presumption of fraud, imposition or mistake in
the Ueyy essence of the coHtract.n
have examined the following cases cited by
counsel on both sides:
Belden vs.. Seymour, 8 Conn. 10.
Morris vs. Emmett, 8 Paige 1877.
Powell VS.. Clark, 5 Mass. 1856.
Jackson VS.. Barringer, Is John 40
Perkins VS.. Webster, . N. H. 2S7.
Marin VS.. Bennett, PC Wend 1853.
Weart VS.. Rose, 16 N. j. (Eq.) 291.
Gilman VS.. Riopelle is Mich. 1874.
Mann VS.. Pearson, John Sc.
jackson vs. Moore, 6 Cowen 706.
Stanley vs. Green, ~ Cal. 164.
Cabot VS.. Winson, Allen SAG.
Conse VS.. Boyles, 4 n. j. (Eq.) 2l2
Miller VS.. Chetwood, n. j. (Eq.) 1879.
Cross VS.. Egin, 9 B. and A. 106.
Whittmore VS.. Whittmore, l.. Il. 603.
Davis vs. Shepherd, l.. r. 40.
Milkman VS.. Ordway, LOG Mass. 232,
md find nothing especially varying from the above
,ases.
To apply the principles of law to the facts as l
ind them:
The contract was for the sale of the "'Nuuanu
Dairy property, including real estate and build
ngs SAID real estate contains an area of $50 acres
more or less" The fact that that it is not
described by metes and bounds is not decisive of
ne case in favor of the defendant.
In Haley Us. AmeSt,y,44 Cal. 139, the land was
described by Dame-the Rancho de San Vincente,
md the Court held it was we'll described thus. and
he particular description by measurement and
boundaries did not restrict it. As have seen in
he cases of the II NJ Y. and 80 Mass the fact that
he lands were definitely described by metes and
pounds, or other certain description is not necs-
arlY fatal to the relief of the purchaser, nor is
heir absence of itself sufficient to makethe vendor
liable for the full amount in case of shortage. The
reSence OF the qualifying words "more or less"
7ll not of themselves relieve the contract from the
resumption of mistake in the essence of the con-
ract, where the deficiency is great as to raise
he presumption.
Was the amount of land in the Nuuanu Dairy
property of the essence of the contract think
was. The amount of acreage was mentioned
n the correspondence between the parties, (Ses
etter of Dillingham; to Wood % Dec. 1889 and
he capacity of the place for dairy was the SUBJ
sct of discussion between them. The discrepancy
etween $50 and 258 acres is SO great as to raise
Mistake in the essence of the contract. think it
very evident that both parties supposed the
property to have been about the area of $50 acres.
If the simple RECESSION of the contract of sale
Iould place the parties where they were when ne
citations were concluded | would not hesitate
0 annul the contract on the ground of mutual
nd gross mistake.
But Immediately the signing of the agree
1ent, Dillingham; took possession of the premises
nd put the cows of the Woodlawn Dairy upon it
nd commenced the erection of extensive barns
pom the premises He did this before he had the