Maffet v. Schaar

Citations

• 89 Kan. 403
• 131 P. 589

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Sale — Beal Estate — Misrepresentation •— Mutual Mistake — Recovery of Excess Consideration Paid. Honestly believing that a tract of land contained 272 acres, a vendor so represented to, his vendee, who purchased relying upon the representation. As a part of the same oral negotiations a price of $45 per acre was agreed upon, and the total consideration was arrived at by multiplying the price by the number of acres. -A written contract of sale was signed which described' the land and stated the total consideration without referring to the number of acres or the price per acre. The contract was consummated by payment of the price and the execution and delivery of a deed in the ordinary form, which contained no reference to the price per acre but stated the consideration as $12,240, and gave a description of the land followed by the words, “containing in all 272 acres more or less.” The tract contained only 257.71 acres. The vendee sued to recover the excess consideration, stating all the facts relating to the sale in his petition. Held: (1) The plaintiff was entitled to recover because of misrepresentation as to the quantity of land, although the representation was made without intent to deceive. (2) The plaintiff was also entitled to recover, irrespective of fraud, because of the mutual mistake of the parties regarding the quantity of land. (3) The oral negotiations were admissible in evidence to sustain both grounds of recovery. (4) The plaintiff was not entitled to recover on the ground of willful fraud.</p>