Butt v. Smith

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 *569 ent 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 *570 mutualmistake 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 *571 case 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.