Butterfield v. Cooper

Headnote

Assumpsit ; tried at the Jefferson circuit, December 24fA, 1826, before Williams, C Judge.

The action ivas, to recover back about $700, the consideration money paid by the plaintiff to the defendant, on a contract to purchase of the latter a lot of ground called the Hawkinslot.

An agreement was, to convey athe Hawkins place, containing 100 acres;” Ae/d, (hat the clause, “containing 100 acres,” should be rejected as surplusage; and that the contract covered the whole lot surveyed and set off to Hawkins, and upon Which he entered, improving part, under a parol contract of purchase ; though it, in fact, contained 106 acres.

The facts, as proved at the trial, were, that on the 10til March, 1834, the plaintiff agreed to pay the consideration ; and the defendant to convey at the time, and in the manner specified in certain memoranda of the agreement, drawn up and signed by the parties on that day, one of which was retained by each. There was no question that the consideration had been paid ; but the parties disagreed in the construction of the^e memoranda in the description of parcels. The memorandum signed by the defendant, and kept by the plaintiff, mentioned these as the Hawkins place. That signed by the plaintiff, and kept by the defendant, mentioned them as the Hawkins place, containing one hundred acres, lying partly opposite to II. Hilyerd’s farm.

Before entering into the agreement in question, the de_ fendant, owning a large tract of land, had contracted verbally with one Hawkins, to sell him 100 acres. A surveyor went with Hawkins and the defendant, to locate the purchase ; and they commenced on one Conklin’s east line, on the Quaker road, and ran easterly on that road, 81 rods, where the surveyor stuck a stake. Thence they ran back from the road towards one Parish’s land ; but on account of an intervening swamp, they could not complete this, nor the other two lines. They were intended, however, to run along Parish’s line to Conklin’s; and thence along Conklin’s to the place of beginning. The surveyor told the defendant, he thought these lines would include more than 100 acres. Hawkins took possession of the premises, and cleared as far east as the stake, and back to Parish’s land ; his whole clearing, which he occupied, amounting to thirty one acres. This purchase of Hawkins was called 100 acres, and Hawkins was not to have any more ; but it, in truth, amounted to 106 acres. When the plaintiff and defendant came to arrange the draft and execution of the conveyance under their contract, the former was willing to take a conveyance of 100 acres only ; but claimed to have the whole length on the road to the stake. The defendant insisted on conveying no farther east on the road, than to include 100 acres between

Conklin's and Parish's land. The whole difficulty was about the 6 acres. The plaintiff was willing that the defendant should take out 6 acres back, so as not to take any of the improved land ; but the defendant claimed to take part of this. Finally, the plaintiff demanded a deed of the Hawkins lot, or the 106 acres, which the defendant refused to give. The plaintiff then demanded the consideration paid. The defendant did not comply with this demand. He afterwards made out a deed, excluding a part of the improvements, so as to include 100 acres only. But this was never tendered to the plaintiff.

The judge charged the jury, that the plaintiff was entitled to the whole 106 acres, as at first marked out ; and they found for the plaintiff, $740,83, damages.

A motion was now made, in behalf of the defendant, for a new trial.