Benson v. Humphreys’s Empirical Analysis

Citation profile

10 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 11 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. ““First. Every sale of real estate where the quantity is referred to in the contract, and when the language of the contract does not plainly indicate that the sale‘was intended to be a sale in gross, must be presumed to be a sale per acre. “Second. The language 'more or less,’- used in contracts for sale of land, must be understood to apply only to small excesses or deficiencies, attributable to variations of instruments of surveyors, etc. When these terms are used it rather repels the idea of a contract of hazard, and implies that there is no considerable difference in quantity. “Third. While contracts of hazard are not invalid, courts of equity do not regard them with favor. The presumption is against them, and while such presumption may be repelled, it can only be effectually done by clear and cogent proof. “Fourth. The burden of proof is always upon a party asserting a contract of hazard; for the presumption always being in favor of .a sale per acre, a sale in gross or contract of hazard must he clearly established by the facts. “Fifth. Where the parties contract for the payment of a gross sum for a tract or parcel of land upon the estimate of a given quantity, the presumption is that the quantity influences the price to he paid, and that the agreement is not one of hazard. “Sixth. Whether it he a contract in gross or for a specific quantity depends, of course, upon the intention of the contracting parties, to he gathered from the terms of the contract and all the facts an”

   1 later decision quote this exact passage · from the majority
   e.g. Berry's v. Fishburne