Where a contract has been entered into between parties under a mutual mistake as to an essential fact, the court has power to grant such relief as the circumstances require. And cases have been frequent in which, where the vendee in a contract for the sale of land has received, either through fraud or the innocent mistake of the grantor, a less amount of land than the contract called for, the courts have granted relief by deducting from the purchase price such an amount as would afford the party wronged redress, instead of vacating the entire contract; but those cases, as a rule, have been cases where the sale has been by the acre.
The cases of Gallup v. Bernd (132 N. Y. 370); Paine v. Upton (87 id. 327); Wilson v. Randall (67 id. 338); Ely v. Padden (13 N. Y. St. Repr. 53) were all cases where the sale had been by the acreage at a stipulated price per acre; and where, the number of acres falling short of that intended to be purchased and sold, a deduction from the purchase price corresponding with the number of acres the amount of land actually conveyed was deficient in, ivas an adequate and appropriate remedy.
But the rule is different where the sale is in gross; and representations by the vendor of a tract of land in regard to the quantity, where the sale is for a gross sum, do not, in the absence of fraud, bind the vendor to make compensation for any deficiency in the quantity. (Johnson v. Taber, 10 N. Y. 319.) And the reason seems to me to be that there is no mistake as to the essential facts, the price not being measured by the acreage.
This leads us to an examination of the facts in this case. The *228defendant, with her husband, had occupied the farm in question from 1851 as a homestead ; it had known, visible boundaries; there was a stone dwelling house and outbuildings upon it, together with a farm house and its outbuildings and farm structures. It Avas advertised for sale, and announced to contain about 300 acres. The plaintiff said that he understood that she wanted $25,000 for it. Upon calling upon her he was informed by her that she did not know the number of acres ; she thought there were about 300, and referred him to her lawyer for future negotiations. That lawyer, Mr. King, died before the commencement of the action, so that we are dependent upon the plaintiff and his agent as to what took place between them.
The plaintiff looked over the farm and told his agent that if, after examining the deeds, the amount of land was over 300 acres, and the title and everything was all straight, he might, if he thought best, submit an offer of $20,000. Subsequently, the plaintiff met Mr. King, and the plaintiff says, at that time I had a talk with Mr. King as to the price per acre and the quantity of land ; “we talked in a general Avay, we figured the land; the price he wanted then came to a little over $65 an acre. Then he had offered the farm for $21.000.” In connection with that he spoke of the price being about $65 per acre. Again, he says that “ We had submitted an offer of $20,000 to Mr. King. Mr. King sent word that he wanted to see me; I could not leave, and got Mr. Kerr to come out; he told Mr. Kerr she Avouldn’t take $20,000 for the farm, but she would take $21,000; * * * I told-Mr. King ‘if she would put in a thousand dollars’ worth of personal property I would take the farm.’ * * *
“Mr. King, Mr. Kerr and myself went back to Catskill; we talked the matter over that night, and the next morning I went down and saw Mr. King and told him we had decided to take the place at $21,000, including personal property, which I think Mrs. Griffin inventoried at $350, making the price of the land $20,650.”.
Mr. Kerr, the plaintiff’s agent, says that when he looked over the deeds by which Mr. Griffin had received title to the farm in question, he figured up the amount of land and Mr. King said: “ ‘Well, this has come out better than I had an idea. I always supposed there was a little over three hundred acres, but I didn’t know there was *229as much land as this ; they ought to get more money for the place.’ And then I think he took his pencil and figured a little on a slip of paper and said, ‘ This is only a little over $75 an acre.’ They were asking $25,000 for the farm. I said to him soon after, ‘ Mr. King, if you were asking only $65 an acre instead of $75, I think perhaps Sprague would buy it.’ ”
Subsequently, he says King said to him: “ ‘ Laying as it does along the river here, with the location that it has got, the place to live and the value as a farm, that ought to bring $30,000; it ought not to be sold less than that.’ I told him Sprague couldn’t and wouldn’t give any such price as that for it in any event. He said we weren’t talking money enough; he didn’t think Mrs. Griffin and the heirs would consent to sell at any such figure as I was talking about. The only figures I had said was if he would say $65 an acre, I thought perhaps Sprague would buy.”
Subsequently, he says : “ I said to him, £ Mr. King, I have made up my mind to submit an offer of $20,000 in behalf of Mr. Sprague for that property.’ He thought a minute and said, ‘ Might better have taken you up at $65 an acre.’ I said I didn’t understand I had offered $65 an acre, but I did say, £ If you were talking $65 an acre — if you were talking only that — I would think we might get to a bargain.’ He said, ‘ You hadn’t ought to think of offering less than $65 an acre.’ Sixty-five dollars an acre came to more than $20,000, and I answered him in this way : £ How I considered $65 an acre in making the proposition, but the way I got at it is this ; there is enough waste— poor and waste land in the farm which has no value—-which, if stricken out, would bring the price down to at least $20,000,’ and he replied that was a queer way to figure, and he said there were so many other acres that were worth a good many more than that, he didn’t think I ought to figure in that way ; then I said to him it didn’t make any difference anyway, because I was satisfied that Sprague wouldn’t undertake to pay over $20,000 in any event.”
It seems to me very apparent from this that they were considering the farm as a whole, and not negotiating at a fixed price per acre.
Subsequently, the same witness says that, upon again seeing Mr. King, Mr. King said, “ That Mrs. Griffin and the heirs had considered the matter and they had made up their minds that they *230would sell the place for $21,000, but they wouldn’t sell it for $20,000.”
Afterwards the witness Kerr saw the defendant at Mr. King’s house and he said: “We chatted a few moments and she expressed herself, I can’t quite give the words, but as being pleased to think that we had found 326 acres of land, and she said there that she had never known much about the amount of land in the farm, but was glad there was that much, and was pleased to think we had found it, and thought we would be pleased with the place, and so on.”
I have gone somewhat at length into this testimony and have set forth everything in the evidence that seems to me to relate to the question as to whether this farm was purchased by the acreage, or whether it was sold as a whole, irrespective of the exact number of acres. There are some repetitions of the same evidence by the same witnesses, but nothing I think in addition bearing upon that question, and it seems to me apparent that the purchase price was not determined by the number of acres. When the plaintiff and his agent discovered, as they thought, that there were thirty-three acres more than the defendant supposed there was, it did not lead them to increase their offer; when that fact was communicated to the defendant it did not induce her to increase her price. It did not indicate to her that there was any more land in the homestead than she had supposed, but only that the farm amounted to more acres in number than she had thought, and, therefore, it did not cause her to ask any more for it.
And it appears further that the plaintiff never supposed he had purchased this particular piece of land which Mr. Griffin had conveyed away before his marriage to the defendant; it seems to have been separated from the rest of the farm by a ditch and a hedge, and the plaintiff, in his testimony, states that: 11 Prior to the fall of 1885 I did not have an idea that I purchased or negotiated for this piece of land west of the ditch ■—■ not of that particular piece of land. I supposed I had 326 acres inside of these lines.”
Assuming then that there was a mutual mistake as to the quantity of land bought and sold, that mistake was not the essential fact, upon which the contract turned.
The defendant was selling for a gross sum the homestead, irrespective of the number of acres it contained.
*231This presents an entirely different case from those I have referred to, where the land was sold by the acre, and where the real agreement was to sell land at a given price per acre, the price per acre being the point where the minds of the parties met, the number of acres simply measuring the total amount of the payment; and where the court, by deducting from the total purchase price the number of acres by which the tract conveyed fell short, multiplied by the purchase price per acre, has simply enforced the essential features of the contract between the parties and permitted the recovery of an overpayment.
When land is sold by the acre, or where it is wild, uncultivated land, all of the same average value, such a remedy affords substantial justice; but it seems evident that it ought not to be applied in a case like this, where the land is partly cultivated and partly uncultivated, some poor and waste land, some well-wooded and good, with a number of buildings upon it, apparently in good condition ; in such a case, simply dividing the purchase price by the total number of acres each party supposed the farm to contain, without taking into consideration the value of the buildings and improvements, and multiplying the result by the number of acres the farm fell short of what it was supposed to contain, seems very clear to me as not the proper way of either determining the value per acre of the land in question, and thus the amount of the overpayment, or of fixing the amount of damages suffered by the plaintiff, if we treat it as an action for the recovery of damages.
But there is another aspect of the case that should be considered. When there has been an innocent mutual mistake of an essential fact, whereby the minds of the parties have never met, then if the contract is as yet executory it need not be carried out; if executed it may be rescinded, but it cannot be partly rescinded and partly enforced at the option of one party; that is to make a new contract, to which both parties must assent. The party claiming to be aggrieved cannot cling to what is beneficial and repudiate what is detrimental to him in the contract. Bear in mind that I am speaking of a mutual innocent mistake as to an essential fact, not of a fraud or of a plain breach of contract where one may hold to the contract and sue for damages for the fraud or breach.
The cases where a deduction has been made from the purchase *232price, or a judgment given for the price of the number of acres the land fell short, were, as I stated before, cases where the essential features of the contract were really enforced. That is to say, the essence of the contracts was to convey land at an agreed price per acre, the number of acres simply measuring the total price to be paid; and there were mutual mistakes as to the number of acres eontained in the tracts conveyed or agreed to be conveyed, and the vendees accepted such number as the vendors could convey, with an abatement of the purchase price as measured by the number of acres the tracts or farms fell short of that agreed to be conveyed, or they kept the land actually conveyed to them, and recovered back ■overpayment made by them; there the vendors were held to their ■contracts to sell land at a given price per acre, no matter how many acres the tracts or farms contained.
In this case, as before stated by me, the sale was not by acreage, but in gross. After reading the testimony, I hardly think any one would say that, if it had turned out that there were 350 acres ■within the boundaries described in the deed, the defendant could have compelled the plaintiff to pay for the additional number of acres. The sale being in gross, the plaintiff has mistaken his remedy if he has any. Pie cannot partly enforce and partly repudiate his contract. He cannot keep the farm and yet repudiate the amount of the purchase price for the reason that the number of acres in it was not an essential feature of the contract; the defendant did not agree to sell it to him upon any such basis.
She thought she had about 300 acres in the farm; it turns out she had 298. "When informed that there were 326, she asked no more for it. -
If she had been informed that her husband, before her marriage to him, had owned and conveyed away the 33 acres west of the hedge and ditch, land that she had never supposed he owned, and which the plaintiff did not suppose he was buying, can any one for a moment believe she would have asked the plaintiff any less for ■the farm because of that discovery %
Originally she asked $25,000 for the farm; the plaintiff offered ■her $20,000; she finally agrees to take $21,000;-the defendant agrees to give it provided she includes certain personal property valued at $350; she consents.
*233It was not a sale at $65 or $63.37^ per acre or of 326 acres at $65, or any other sum per acre. But it was a sale of the farm as such for the sum of $20,650 ; that was her final price. The essence and substance of the contract was to sell the farm for $20,650. She agreed to sell for that, the plaintiff to pay that for it. Ho such contract is enforced or attempted to be enforced here. The plaintiff keeps the farm, but wants to be relieved from paying the purchase price agreed irpon.
The deduction of $2,177, as provided for in this judgment against her, reduces the ]Durchase price of the farm to $18,473; in other words, the relief granted to the plaintiff by the judgment herein imposes a new contract upon the defendant,1 thatfis, to sell the farm for $18,473, instead of $20,650 ; that is a contract she never made, and by which she is not bound. (Crowe v. Lewin, 95 N. Y. 423, 427.)
It seems to me, therefore, that the judgment in this case is one to which the plaintiff is not entitled; it is not the enforcement of any contract entered into between the parties, but, in substance, is the making and enforcement of a new contract to which the defendant has never consented.
There ai-e a number of other questions in the case that I have not thought necessary to consider; among others, whether a judgment against the defendant individually is proper; whether, by the terms of the description in the deed, the plaintiff is entitled to any more land than is contained within the boundaries as defined by the lands of other persons named therein; .whether the plaintiff is not concluded by the payment of the purchase-money mortgage; and also whether a party desiring to correct or be relieved from a contract entered into under a mutual mistake of facts, should move promptly upon discovering the mistake. (Thomas v. Bartow, 48 N. Y. 195.)
That the plaintiff did not do. The importance of prompt action is illustrated in this case by the fact that the defendant has long since distributed the proceeds of the sale of the farm, and that her agent who conducted the negotiations on her behalf, and who would have been an important witness, died before the commencement of the action. Hine years elapsed between the discovery of the mistake and the commencement of the action, and the facts *234had become dimmed and the case cold and stale. It is true that the defendant became a resident of another State the year after the sale, but, with the exception of one year, she had been a yearly visitor to this State, spending several weeks each year within a few miles of the farm in question. She was at no time beyond the reach of the law in some forum, and each year was for weeks within reach of the process of this court.
I think, therefore, that the judgment should be reversed, and a new trial granted, with costs to abide the event.
All concurred.
Judgment reversed, and a new trial granted, costs to abide the event.