majority">Gilfillan, C. J.

It is apparent from the complaint that when the executory contract to convey was made, the parties supposed that the tract which defendants agreed to convey to plaintiffs contained, and defendants covenanted in the contract that it did contain, 109 68-100 acres. And, although not as clearly stated in the complaint, it is also apparent that when the parties came to the performance of the ex-ecutory contract, — the defendants, by the execution of the conveyance, and the plaintiffs, by the payment of the cash part of the price then to be paid, and the execution of the notes and mortgage to secure the remainder, — and when they calculated the aggregate amount of the price, for the purpose of stating it in the conveyance and fixing the amount of the notes and mortgage, the plaintiffs, at any rate, were still under the belief, and charity towards the defendants requires us to suppose that they were also, that the tract contained that number of acres. And as the purchase was by the acre, at the rate of $325 per acre, they calculated the aggregate price upon the basis of that number of acres in the tract, and stated the consideration in the conveyance, and made the notes and mortgage accordingly. But, in fact, there were only 97 28-100 acres in the tract.

The case is, therefore, that the defendants in effect agreed to sell, and the plaintiffs to purchase, the tract in question, at a sum to be fixed by multiplying $325 by the number of acres actually in the tract, and that, when they came to consummate the purchase, they, through mistake of fact as to the quantity actually in the tract, fixed the sum by multiplying $325 by the number of acres they supposed to ¡be in it, to-wit, 109 68-100, instead of by the number actually in it, to-wit, 97 28-100; thus, through mistake of fact, stating the aggregate price as $4,030 more than it ought to have been, and than had been agreed to.

Generally, where there is an executory contract, (and the rule has been most frequently applied to contracts for the conveyance of real estate,) and the parties perform it, doing and accepting certain acta, or executing and accepting certain deeds or contracts, in full *189satisfaction and discharge thereof, the executory contract becomes functus officio, and the rights of the parties must rest upon the acts done, or contracts made, in performance of their original contract. And if such acts or contracts vary in some respects from those stipulated for in the executory contract, the presumption is that the parties altered their original intentions, and that the acts done or contracts executed in performance give expression to the final purposes of the parties. But this conclusive effect is given to what is done in performance only in the absence of fraud or mistake. If one of the parties has been led by fraud, or mutual mistake of fact, clearly shown, to do or accept what the executory contract did not call for, the courts will give relief as in other cases of fraud or mistake. Tarbell v. Bowman, 103 Mass. 341; Wilson v. Randall, 67 N. Y. 338; Paine v. Upton, 87 N. Y. 327.

Order affirmed.

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