The opinion of the Court was delivered by
GibsoN, C. J.The principle on which the cause- was put to'the jury, was that of mistake, for which, they were instructed,, that the contract ought not to be enforced. The cases on which reliance is placed for this, are inapplicable. The difference between a deficit for which an abatement is claimed where the land has been, sold for a round sum, and an excess, for which a recision of the contract is claimed where it has been sold by the acre, is plain and palpable. In the one case, the vendee is a loser to the extent of the difference; and in the other he gets value for whatever he has to pay. Yet our reports furnish no instance of an abatement, even where the difference was considerable; or where the principle has been sanctioned further than to admit that there may be extreme cases in which chancery would infer some great misapprehension, and-ón that ground relax the rules of law. Boar v. McCormick, 1 Serg. & Rawle, 168. Equity will indeed relieve against a plain mistake, as well as against misrepresentation and fraud.. Rutean mistake be-alleged in a matter which was considered as doubtful? and treated- accordingly ? Where each of the parties is content to take the risk of its turning out in a particular way, chancery will certainly not relieve against the event. Reference to a train of authorities for this, is given in Perkins v. Gay, 3 Serg. & Rawle, 331; and I shall therefore bring into view only the case of Smith v. Evans, 6 Bin. 102, in which land was sold by the acre, but according to an estimate of the quantity which was held to be conclusive, though it appeared by subsequent measurement that there was a deficit of eighty-eight acres ; the Chief Justice remarking that the quantity was not an essential part of the contract. What, then, is the case here? -The advertisement in the True American, by which the premises were, described as three hundred acres of patented land, was no- part-of. the conditions of the sale, which, had they been in writing, would have controlled all private representations. The -office ,sof an advertisement, both here and England, is to give notice of the fact that a sale is. intended, and the object of the description is to attract bidders, leaving the terms to be settled on the ground. Even were the conditions published beforehand, the-vendor would.not be precluded from changing them, as he may sell.on his-own terms,, or not at all. The conditions- are therefore superadded as a distinct matter by the auctioneer, and published by parol or in writing. Where indeed the advertisement is referred to as contain*219ing the conditions, it will no doubt, answer the purpose: but it is not pretended here that the land was sold by the advertisement, or in gross, or as containing a definite quantity, or any other way than by the acre. The witnesses substantially agree as to the representation of the vendors, although they use different, terms,; such as “ the calculation was 300 acres — supposed to be 300 acres, offered at 300 acres — admitted to be 300 acres and upwards— .understood to be about 300 acres and upwards — 300 acres and probably exceeding it: from which it is clear that the vendors' .sold b,y an estimate,-.without-pledging themselves for its accuracy.
This is put beyond a doubt by the ,faet that the vendee, who was pleased-.with his bargain, appointed a day to pay part of the price, and.eoncert measures to 'havethe quantity ascertained by a survey. "Why then should he be released from the contract, if there were no misrepresentation or other want of fair dealing? The excess is not even unusual, being forty-five acres, or fifteen' per. cent.; and as to the quantity of the rough land being greater' in proportion than was anticipated, that was a matter against which, having the means of information in 'his power, he was bound to take-precautions, and cannot now object.
Where the vendor has acted bona fide and with reasónáble care, •the measure of damages is the difference of price on the re-sale. But his,conduct may be so grossly improper as to cast a loss from it on himself ; as where-the re-sale is wantonly delayed while the land is notoriously falling in price, or the business is managed neg-r ligently: these and many other circumstances may be properly left to the jury. But mere unskilfulness without ma'lafides-, or even negligence, unless.it be plain and palpable,-will not be sufficient to charge him. The vendee ought not to east the responsibility of - the re-sale on the vendor, and by his own -wrongful act charge any one else with the consequences. Having-thought proper to render a second sale necessary., it must be at his own risk. It seems to me these principles must rule the -cause, and that the court ought so to have directed the jury.
HustoN, J.From the manner in which this cause comes before us I have had some doubts as to the .correctness of the opinion of the Court; but on full reflection, I can see no .error — at least none that-the plaintiff in error can .complain of.
There exists in the cause many matters which seem not to .have been relied on below, and were not pressed here, and which, as the cause goes back, ought not to bo considered as unworthy of reflection.
It would seem no written conditions of sale were put up at <he time Smith bid ; but the printed advertisement was in evi-dencie, and. described the property as “the mansion place-, e.om *220taining 3Ó0 acres of patented land, with the usual allowance, &c. one third of purchase money in hand, &c. Should the highest bidder fail to comply with his bid, the sale to be returned to the next highest bidder if he choose to take it, the residue in three equal yearly payments, without interest, to be secured by bonds and mortgage. ”
Where no conditions of sale are put up, and a description and conditions are in the advertisement, these may be considered as the conditions ; and these cannot be contradicted, or varied, by parol at the time of the éale, as it would introduce fraud and confusion. Sugd.on Ven. 212.
But it seems to have been proved, and not denied, that after the bid of 14 dollars per acre, there was no real bidder but Smith, the defendant, it was raised on him by a puffer or puffers instigated by those or one of those interested. This alone would seem to have been considered as a good reason why the real bidder is not bound. Sugd, 16 & seq.
The same writer tells us the usual conditions “that if the purchaser fail to comply with the conditions, the deposit, shall bo forfeited, and the owners be at liberty to re-sell, and the deficiency and all charges made good by the defaulter.” If this latter clause ip important it was not a part of the written or parol terms of this sale.
Public sales at auction, as well as private sales are precisely what the contract of the parties makes them; and I know of no authority for sajnng, it is an universal rule of all auctions, that the bidder failing to comply, shall he liable for the difference on a re-sale, if no conditions are put up- — much less for saying that when written terms of sale, different from this are put up, this one shall be implied, or understood to be at all binding, There is manifest unfairness in publishing terms of sale, and a penalty for not complying, and after the sale deserting the written terms, and attempting to bind the party by different and greatly more penal conditions.
The effect of the words more or less, in conditions of sale, or articles of agreement, have been before this Court more than Once — ¡and the decisions are not precisely the same — at least it requires some ingenuity to roconcile them, The last case, on this subject, to me appears more consonant to the general understanding of the world, as well as sound principles of law than so me of those which preceded it. In point of fact, when land is sold, and bought for the purpose of cultivation, the price always depends upon and is regulated by the quantity — and a learned judge or illiterate layman, in making a bar-, gain, either as buyer or seller, equally know that 150 acres of land is better that 100 acres, all -other things being equal, and *221they know that quantity is not mere description, but as much ■the substance and consideration on the one side, as the quantity .of money is on the other side.
This matter would seem to have been considered by the counsel in argument differently in this case from the manner in which it strikes me. It has been assumed that there were 346 acres and allowance, at least. There may have been and probably was evidence on this subject not before this Court, but on the evidence I see no reason for saying that this is the quantity: — In re-surveying up the mountain, as I understand it, the patent called for 51 perches, and the surveyor, without marks or corners corresponding to the patent, went on, making this line 72 perches. The reason given for this, that one corner of the orchard- fence went so far, is not satisfactory. Many an one has extended his fence beyond his line: — and on a sale of land held by an old patent, it cannot be seriously contended, that the purchaser is bound to take and pay for mountain land, not patented — perhaps to much of which there is no right.
Suppose this quantity correct, what was the contract of the parties? Three hundred acres, more or less is sold by the acre, and the price per acre multiplied by 300 gives the aggregate price — and that overplus or deficiency is disregarded — thus 300 acres more or less at @10 per acre is @3000. Or it may be 300 acres, more or less, to be sold by the acre, and the land to be measured, and the purchaser to pay for each acre it contains, and in that way the tract in question by the present measurement, would, at 10 dollars per acre amount to 3450 dollars.
Morrison would seem to have understood it in the manner first Stated — “It was before it was cried, that it was fixed at 300 acres, more or less:- — some had been sold off and that gave rise to the doubt that there was not 300 acres. The calculation was made at S00 acres.”
Piper says expressly “I understood it was selling at 300 acres fmore or less’ and so is the printed advertisement explicitly.” The first point then to be settled is, what was the contract? Did Smith understand it correctly or not, for he álways-insisted he was to pay for only 300 acres. Could the seller vary the terms from his written advertisement? and did he vary them so as to be understood by the defendant? if there was a misunderstanding is the defendant liable to a contract which he never understood! While all is executory can any Court compel him to comply with a contract to which he never agreed — or to pay for not complying?
I recognize fully the distinction taken by the Court, between a contract executed by accepting the deed, and giving bonds ; and ■g contract in no part executed, and the terms of which were not *222agreed on, about which there was a material dispute, and in suck case chancery never decrees a specific performance. It will not be contended the plaintiffs could have recovered at law.
I then think the judge was right in leaving it to the jury to decide whether there was a mistake in quantity, and saying, “if there was, either party would be relieved-.-here no agreement was made. It was a public sale, and we think that if you are satisfied that the defendant believed, and had reason to believe from the advertisements, and the information given by the sellers, that the tract only contained .300 acres, or a little more or less, he was not bound to take 345 acres, the difference is $814 75 — a large sum to a farmer, a sum that might on a mortgage sell the best plantation in the eounty.” I also think he might have gone further, and held the plaintiffs to their printed advertisement, or at least said that the defendant was not liable beyond it. That if puffing, false bidding, was used by the vendors, or those in that interest, the defendant was not bound. This might have been very different if the deed had been accepted and bonds given ; and the party had asked to be relieved, then the defendant could not say there was no contract — before this, and when no papers were signed, nothing precisely settled, I know of no principle, nor case, which makes a man liable, because in the course of a contract he thinks he and the other party understood each other, and because when they come to reduee it to writing he discovers that they did not understand each other, and then withdraws.
It will be observed that I have laid the testimony of Jlshcom, the plaintiff, out of view. As the cause goes back I would refer to Patton’s adm’rs. v. Craig’s adm’r. 7 Serg. & Rawle, 116. I suppose the judge had that case in view when he admitted Jlsh-r coni. But they are very different. There the contract, loan, &c., was by Craig in his life-time to Patton, and the administrators were but trustees, without any interest — here the transaction was by Jlshcom,, himself, with the defendant, and if there be a loss to the estate; it may be there is no one liable, and this might be so if the heir caused the difficulty, or. Ashcom may be liable, or the defendant.' This plaintiff is then as much interested as any other plaintiff in any suit, and we have not yet decided that every plaintiff may, by paying in the costs, be a witness. In the case cited, 7 Serg. & Rawle, 124, the late Chief Justice says — “ at the commencement of the action he was a bare trustee, and there is no suggestion that he was in any danger of being involved in a devastavit. If any thing of that kind had appeared he would have been interested.
Judgment reversed and venire ds novo awarded.