Opinion of the Court by
Judge Hardin :According to the written renewal of the contract, the sale was simply one in gross of all the land “supposed to contain 519 acres” for $40,000.
It is neither alleged nor proved that the vendor was guilty of fraud in making the sale by false representations of the quantity or otherwise; but the grounds of the defense presented in the answer (which is not, as assumed to be, a counterclaim) were, that by mistake, a verbal stipulation was left out of the writing, which, if inserted, would have made it optional with the appellee to take the land as containing 519 acres for the sum of $40,000, or have it surveyed and pay only for the number of acres he got at the rate of $40,000 for 519 acres; and that there were but 510 acres.
The evidence conduces to the conclusion that there are but 510 acres in the tract, and that Bondurant was at one time willing to adjust the price in the manner stated, if the appellee would then elect to have the land' surveyed; but it does not appear that the appellee then required or desired to have the land surveyed; and we are not satisfied from the evidence, that according to the contract he was entitled to that right, or, in other words, that there was anything omitted by mistake in reducing the terms of the agreement to- writing. And according to numerous -decisions of this court, the deficiency of nine acres, if clearly shown to exist, is too small to entitle the purchaser under such -a contract to any relief for a mere mistake or error in judgment as to the quantity of land contained in the tract.
The judgment is therefore deemed erroneous, in so far as *152it makes any deduction for deficiency in the quantity of the land.
Huston, Turner & Cornelison, for appellants. Apperson & Reid, for appellee.Wherefore, the judgment is reversed on the original appeal and the cause remanded for a judgment in conformity to this opinion; and it is affirmed, on the cross-appeal.