(dissenting). It appears from the evidence, without contradiction, that the original contract accurately described the premises contracted to be sold by the defendants and to be purchased by the plaintiffs. It clearly appears from the evidence that the statements made by Dr. Leonhardt, at the time of the making of the contract, as to the location of the premises contracted for, were made through a misapprehension upon his part as to the true location of the premises. There is nothing to show that he was-attempting to conceal the true location, or that he was fraudulently misrepresenting the situation of the land. Before the second pay*170ment was made, the question of the location of the premises was discussed- by the parties who were interested, or by those acting in behalf of those interested, in the contract. eJudge Potter finds, as matter of fact, as follows:
“That one Abram Goodman was the agent for the plaintiff Mary B. Goodman in negotiating for and entering into said contract, and transacting all the business in respect thereto for her except the signature thereto; that, in acting for the said plaintiff Mary Goodman, he became acquainted with the facts in respect to the mistake in reference to the location of said lands, and on the 16th day of April, 1893, he went with the defendant Leonhardt to the real location, and saw the premises which were actually agreed to be conveyed; that thereafter, and on the 17th day of April, said second payment of 8500 was made, pursuant to said contract; that the plaintiff Moses D. Goodman had knowledge of the location of the premises before said, second payment was made.”
It seems to me there is evidence sufficient to warrant this finding of the referee. There is a conflict in the evidence, and that conflict could best be. decided by the one who had the witnesses and the parties before him upon the trial of the action. The purchasers had before them at all times the actual, accurate description of the premises contracted for. When it was made apparent to them that the premises were not in the exact location as represented to them, the exact location of the property could easily have been ascertained from the description of the premises in the contract itself. It appears that, after this question arose, no steps were taken by them to locate the property by this description; but they went to Dr. Leonhardt before making the second payment, and he showed them the location of the premises. The plaintiffs claim that he did not then properly locate the premises, but that he showed them a piece 125 rods from the premises in question. Dr. Leonhardt testifies that he showed them these premises. This was a question of fact for the referee to determine, and he has determined favorably to Dr. Leonhardt. I think he was justified in so doing. The plaintiffs claim that, in the first statement, the doctor told them the property was on the Oderboltz road, next to land of Hill Bros., and that it was further represented that the Hill Bros, tract was on the corner of the Witmer and Oderboltz roads. It appears that the Hill Bros, land was on the Oderboltz road, and that the real location of the premises in'question was adjoining the piece of property owned by the Hills. It appears from the evidence that Moses Goodman, before the second payment was made, called, upon' Hill Bros., in Buffalo, and ascertained flom them that they did own a piece of land in that locality, but that it was not the piece on the corner of Witmer and Oderboltz roads; and after that conversation, Goodman went to the doctor, and informed him what he had learned from Hill Bros. Subsequently to this the land was shown to Goodman by the doctor, according to the doctor’s testimony. With the proper description of this land in the possession of the plaintiffs, and with the investigation which was made, and the conversation had between the parties interested, it appears to me that these plaintiffs were sufficiently apprised of the true location of this land before they made the second payment.
I believe the referee has correctly decided all matters in issue *171between these parties, and that his decision should be upheld. I shall give this case further attention before our meeting in November, and reserve the right to change my mind upon the views above expressed.