There is a sharp conflict in the testimony. The trial judge heard all of the evidence and in legal effect found that in September, 1914, the defendant personally inspected the tract of land in question ; that Cooley pointed out the corners to him; that they passed along the roadway on the east and across the bridge to the county road on the west, then along such county road to the southeast corner of the lands; that it was believed by Cooley and the defendant that the bridge near the northeast corner of the property was within the reservation made for the road; that in August, 1911, while Cooley was the owner of the contract, the County Court of Marion County, based on the petition of Cooley and others, had duly laid out and established the roadway over said lands; that in *160the increase of the reserved strip from ten to twenty feet in width it was the intent of all the parties to make snch reservation wide enough to include the bridge and the land on which it was located; that the ground between the northwest end of the bridge and the county road should be considered a part of the roadway and reserved and excluded from the contract ; that after his examination of the premises and with full knowledge .of all such understandings and agreements betwe.en the plaintiffs and Cooley, the defendant purchased Cooley’s interest in the contract.
It was further found that the original contract having been lost or mislaid, a new contract was drawn between the plaintiffs and the defendant about September 12, 1914, which was intended to carry out the Cooley contract as modified between him and the plaintiffs; that a mistake as to the lands to be reserved and excluded from the 11.87 acre tract was made in the preparation of the contract and that such mistake was mutual between the parties.
The defendant filed an answer in which he admits his purchase of Cooley’s interest and the execution of the written contract between himself and the plaintiffs; that he relies upon the terms and conditions of such written contract and that he filed an action in which he sought to rescind and to recover from the plaintiffs $1,334.58, which is the amount of the purchase price and the alleged value of the improvements made upon the property. He further alleges that on February 13, 1915, the contract was modified between the parties, to the effect that in lieu of the east twenty feet reserved for road purposes the plaintiffs should exclude from their deed a strip of land fifteen feet wide off and from the south side of said premises, and that plaintiffs should deed to the defendant on the *161completion of the contract a strip of land along, the east side of said premises. In the answer the defendant also pleads a breach of the written contract, in that the plaintiffs cannot convey a fee-simple title.
1-3. After a careful reading of the testimony we are convinced that the defendant acquired his interest in the contract with full knowledge of all of its terms as modified by the oral agreement between the plaintiffs and Cooley, and that the defendant was far more interested in rescinding the contract and recovering the money which he had paid and expended on improvements, than he was in obtaining a specific performance of the contract. This is apparent from his own testimony. "While it is true that the defendant will not receive the full 11.87 acres, yet it appears from the testimony of the plaintiffs that the amount of the shortage is about one tenth of an acre, and according to the testimony of the defendant, about one half of an acre. It is not claimed that the realty was bought for any specific purpose or that the land embraced within the shortage has any material value for any purpose. In fact, it appears from the record that a portion of it is under water. The defendant relies upon bis right to rescind and does not claim any reduction in the price on account of the shortage.
In the written contract between them, executed September 12, 1914, it was agreed that when the defendant complied with the terms and conditions by him to be kept and performed, the plaintiffs would then execute “a warranty deed conveying said premises in fee simple, ’ ’ and there was no provision that the property should be free and clear of any charge, lien or encumbrance. It also appears from the record that the only lien upon the property was a mortgage in favor of the State Land Board and that a release from such mort*162gage was executed and tendered as to the tract in question.
The legal questions here involved are very similar to those in the case of McCourt v. Johns, 33 Or. 561 (53 Pac. 601), in which the plaintiff sought “a rescission of the bond or contract of sale, for the recovery of part of the consideration paid and for an accounting and recovery of expenditures made in improving the premises,” and in which the court denied the relief asked for and rendered a decree of specific performance, holding that:
“The small difference of 3.75 acres in the estimated acreage upon which the amount of the consideration was probably based, is so slight in comparison with the total that it does not lead to a presumption of mistake or fraud; and, none such being pleaded, there could be no relief for this cause. * * That is to say,, the purchase was not made for any specific or particular purpose whereby the exact quantity of land estimated to be contained in the tract described became a material element in the transaction.”
The trial court heard all of the evidence and rendered a decree in favor of the plaintiffs. We are of the opinion that the decree should be affirmed, without costs „to either party on appeal. Aeeirmed.
McBride, C. J., and Bean and Olson, JJ., concur.