vendor and Vendee : Contract : Conveyance: mistake. Upon the facts thus found, the question is whether plaintiff paid to defendant the sum claimed ($112), under such circumstances of fraud, misrepresentation or coercion as entitles him (jemarLC| repayment. It will be observed that there is no claim that defendant was -acting as plaintiff’s agent in the purchase of this land. There can hence be no pretense that plaintiff is entitled to the benefit of the contract made by defendant with Mickel, the owner of the land.
Nor, again, is there any suggestion that the land did not contain ninety-four .acres, nor that plaintiff did not agree to pay for it at the rate of $8 per aere. In other words, if plaintiff had paid the full amount of $152 ($50, $590, $112 — $752), before the deed was made, it would scarcely be claimed that he could now recover the amount paid over the $640. And in the case thus supposed, it would make.no difference, “that, at the túrne of the sale, nothing was said about the land being fractional.” For whether anything was said as to the number of acres or not, the parties, by their subsequent acts, would give a construction to their contract, which, in the absence of fraud or the like, would bind them and defeat a recovery *450of the money thus paid. And the saíne must be true, in the absence of fraud, where the money was paid after the delivery of the deed. That plaintiff was invested with the absolute ownership of the land by the conveyance, did not release him from his obligation to pay for it, according to his contract. The consideration for his promise to pay, or for money actually paid, is found in the conveyance of the land to which he thus took title.
Was there, then, fraud (for certainly there was no coercion) or false representations, producing damage to plaintiff? If not, this judgment was wrong. And here a plain proposition is, that if plaintiff paid no more than his contract required of him for this land, he was not injured; there was no damage, and his action must fail. For it must be remembered that defendant is not seeking to recover the balance of the purchase money, but that plaintiff insists that defendant has so much money “received to plaintiff’s use,” under a promise (implied in law) to pay the same upon demand.
If plaintiff was not injured, then it makes no difference that defendant had the deed in his possession after its delivery; that the deed was altered ; nor that plaintiff" had the impression that the vendor demanded the $112. Nor, indeed, would any of the facts upon which the court below seems to have predicated the conclusion of fraud, be of any moment. For if plaintiff paid no more for the land than he was legally or in equity bound to pay, he cannot, because of defendant’s supposed artifice or so called fraud, demand the repayment. It would be a most idle task to compel defendant to hand over this money, if he, in an action to-morrow, could recover it as the balance due upon the land.
As we understand this case, plaintiff agreed to pay for this land at the rate of eight dollars per acre — not $640, but whatever would be the amount at this rate *451per acre. He got the land, ninety-four acres, and paid for it in precise accordance with his contract. Of this sum he says $112 was obtained by fraud. Not in the original contract certainly; and, this being true, it is of no moment that the deed Ayas changed. If it had remained as at the time of its execution, he would have been no less bound to pay this money. Nor is it of any moment that the deed was, or was not, recorded, nor whether the vendor did, or did not, demand the additional $112. Aside from these considerations, and whether these representations were true or false, plaintiff, in paying the money, but discharged his debt, and complied Avith his contract. And as plaintiff’ before he can recover, must not only show fraud, but also that which resulted in his injury, it follows that the court below erred in finding against defendant.
It might not be difficult to show, also, that plaintiff, according to the facts found, in view of his means of knowledge, Avas guilty of such negligence as to effectually bar his recovery in this action. But upon this ground we need not enter, that above discussed being sufficient to dispose of this appeal.
Beversed and remanded for trial de novo.
Beversed.