Stern v. Benbow

<p>1. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Parol Evidence.</p> <p>In an action to reform a written contract to convey land in conformity with an alleged guarantee of the vendor that the tract contained a certain number of acres, which, in fact, it did not contain, it is not necessary that the guarantee be in writing. The requirement imposed in this case, by the trial judge, that plaintiff show that defendant had omitted the guarantee from the written instrument, was not to defendant’s prejudice and therefore not reversible error.</p> <p>2. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Option of Grantee — Remedy—Measure of Damages.</p> <p>When plaintiff has alleged and proven that the defendant had guaranteed that a certain tract of land, the subject of a written contract to convey between them, contained a hundred acres, and in fact, that it contained something less than eighty acres, it is optional with him to cancel the contract or take a deed for the land with a pro rata abatement in the price. In the latter case he may recover such damages arising from the loss of rents and profits he may have sustained as the proximate and direct result of having been wrongfully kept from the possession, less the interest on the unpaid balance of the purchase price.</p> <p>3. Same — Actual Damages — Rents and Profits.</p> <p>Plaintiff having established by the verdict of the jury, under competent evidence and correct instructions of law, that a contract to convey lands made with him by defendant should be reformed so as to include a guarantee that it contained one hundred acres, and that in fact it contained less than eighty acres, and also, certain loss of rents and profits by reason of his having been wrongfully kept from possession, he is entitled to a judgment that defendant hold the lands as a security for the balance of the purchase price due, with interest thereon, ascertained by deducting from the purchase price the amount thereof theretofore paid, and such damages as directly and proximately resulted to plaintiff by the wrongful withholding of the possession by the defendant.</p> <p>4. Deeds and Conveyances — Contracts to Convey Lands — Breach— Damages Remote.</p> <p>The plaintiff cannot recover of the defendant, as damages for unlawfully withholding possession of certain lands he had contracted to convey, the expense of moving his son and family from an adjoining State and boarding them during the time the possession had thus been withheld, such damages being too remote.</p> <p>5. Issues, Inconsistent — Verdict—Judgment.</p> <p>The exception by appellant to a judgment rendered on the verdict in favor of appellee, on the ground of inconsistent issues, cannot be sustained when it appears that appellee was entitled to his verdict on the answer of the jury as to each.</p> <p>Manning, J., dissents.</p>