1877. exist in the estimated quantity of the land purchased July Term. by him. If he assumed such risk, he must abide the consequences of his engagement. If he did not, then, according to the decisions of this court oft repeated Hoy & als. and too numerous for citation, he is entitled to compensation for the loss arising from the deficiency.

Watson

V.

Whether the contract of sale was one of hazard as to quantity-in other words, whether it was a contract for the sale of a certain tract of land, whatever number of acres it might contain, or of a specific quantity—depends upon the intention of the contracting parties, to be gathered from the terms of the contract and all the facts and circumstances connected with it.

While contracts of hazard in such cases are not invalid, courts of equity do not regard them with favor. The presumption is against them; and while such presumption may be repelled, it can only be effectually so done by clear and cogent proof. Jolliffe v. Hite, 1 Call. 301, 308; Hundley v. Lyons, 5 Munf. 342; Nelson v. Carrington and others, 4 Munf. 332, 340; Keyton's adm'rs v. Brawfords, 5 Leigh 39; Russell v. Keeran, 8 Leigh 9; Blessing's adm'rs v. Beatty, 1 Rob. Rep. 287, 303; Caldwell v. Craig, 21 Gratt. 136; Triplett v. Allen, 26 Gratt. 721.

"Contracts of hazard, such as these we are now considering," says Judge Tucker in Keytons v. Brawfords, supra, "have never been discountenanced by our law. Where they are clearly established they are valid, and will be respected and enforced, if fair and reasonable. But, though such a contract of hazard is valid, it is not to be readily presumed, unless it is clearly sustained by the facts. The courts will not favor such a construction; but they will rather take it that a contract is by the acre, whenever it does not clearly appear that the land was sold by the tract, and not by the acre."

1877.

July Term.

And where the parties contract for the payment of a gross sum for a tract or parcel of land, upon an estimate of a given quantity, the presumption is that the quantity influences the price to be paid, and that the agreement is not one of hazard. Blessing's adm'rs v. Hoy & als. Beatty, supra.

After a careful examination of the evidence in this case, I have come to the conclusion that the contract between the appellant and the commissioners of the court was of the character just described. The land purchased was in two parcels contiguous or nearly so, the one estimated as containing four hundred and fifty-nine acres, and the other forty-four acres, together five hundred and three acres. For these two parcels he contracted to pay the gross sum of $25,000, part in cash and stocks, and the residue in deferred installments, the last three bearing interest from the day he was to get possession of the land.

He was a resident of Williamsport, Pennsylvania, but, it seems, owned a tract of land in Virginia near the Chatham estate. He was on a visit to his Virginia farm when he heard that "Chatham was in the hands of land agents in Fredericksburg for sale. The commissioners were empowered by the decree under which they acted to make sale through land agents subject to ratification by the court. Contemplating a purchase, and with a view to information concerning the land, he applied to the agents, who furnished him with a rough map or diagram of the land. This map gave the boundaries of the two parcels, and the quan tity in each parcel was noted on it-one parcel was put down as containing four hundred and fifty-nine acres, and the other forty-four acres. And the two quantities were added together, making five hundred and three acres. The figures "458" seem to VOL. XXVIII-89

Watson

V.

Watson

V.

1877. have been first set down as the quantity of the forJuly Term. mer parcel. They were partially erased yet remained visible, and the figures "459" substituted. The map on its face purported to be drawn from "recent Hoy & als. surveys." Accompanied by Lacy (the owner of the land) and by one of the agents, he went upon the larger parcel and made what must have been a very imperfect examination of it: for, it seems, he did not remain on it longer than three hours. The information he obtained concerning it was chiefly from the map, the agent and Lacy. He could not have derived much from inspection; for it was proved that his eyesight was so defective that "he could scarcely recognize an acquaintance across the room" or "one of his children at the distance of ten feet." He says, that Lacy gave him an estimate of the quantity in each of the fields in this parcel, which he noted in a memorandum preserved and made a part of the record, making the aggregate quantity precisely four hundred and fifty-nine acres. Lacy states, that he informed him that he did not know what quantity the tract contained, and that the land would be sold by the tract and not by the acre. It seems, however, that the appellant relied for the quantity chiefly upon the map and upon what, he says, was told him by the agents and the commissioners. He cannot be blamed for this: for Lacy had no authority to make, direct, or control the sale. The commissioners, only, and the agents employed by them had that power.

With the information thus obtained, he addressed a letter to the agents, inquiring whether they would take $25,000 (payable as herein before indicated) "for the Chatham farm in Stafford county, containing five hundred acres, with fisheries, bridge privileges and all other rights pertaining thereto." To this letter the

1877.

July Term.

Watson

V.

agents in a few days replied, accepting the offer. Thereupon a contract of sale was drawn up by the appellant, at Williamsport, Pa., signed by him and forwarded to the agents to be executed by them. It was accordingly so executed, and a copy furnished to Hoy & als. the appellant. In this contract the land is described according to the map which had been furnished, as well in respect of boundaries as quantity. The larger parcel is described as "Chatham farm containing four hundred and fifty-nine acres," and the other parcel, (as on the map), the "wood lot, containing forty-four acres, connected with and being a part of said Chatham farm, and containing in both the said tracts or lots of land five hundred and three acres, together with the fisheries," &c. About three weeks thereafter, the commissioners made a report of the sale to the court, filing the contract therewith. In this report they describe the land sold as "the balance of the Chatham farm," (a part had been previously sold to another purchaser) "viz: five hundred and three acres, for the sum of $25,000;" and then set out the terms of the sale. There were no exceptions to the report and it was at once confirmed: the decree of confirmation reciting the sale in these words: "The sale of "Chatham,' situated in the county of Stafford, containing five hundred and three acres, with the fisheries, &c., for the sum of $25,000, upon the terms," &c., reciting the terms as contained in the contract. The decree further directed a conveyance to the appellant "upon his complying with the said terms of sale."

Thus it will be seen that from the very commencement to the conclusion of the negotiations, and down to and inclusive of the report of the sale and decree of confirmation, both of the contracting parties had treated the Chatham farm as containing five hundred

July

Term.

1877. and three acres. That it was estimated by both parties as of that quantity, and bought and sold as and for that quantity, can scarcely admit of a reasonable doubt.

Watson

V.

Hoy & als.

Soon after the sale was confirmed, within a few weeks, and after the appellant had made his first payment for the land, wishing to have an accurate survey preparatory to the deed to which he would be entitled on making his second payment, soon to become duea survey obviously being proper, because the rough diagram which had been furnished contained the boundaries of the land, but no courses nor distanceshe procured a survey to be made by a friend in Pennsylvania, by which it was discovered that there was a large deficiency in the quantity. He at once made this known to the commissioners; and they, therefore, at their own expense, caused another survey to be made, which showed a deficiency of thirty-four and one-half acres. This last survey not being, it seems, satisfactory, the commissioners, after long delay and after much importunity by the appellant, had still another survey made by a different surveyor, which was found to correspond with the last, showing the same deficiency, and which was accepted by all parties as correct. In the meantime the commissioners, after discovery of the deficiency, had several times by letters promised the appellant that there should be some adjustment. One of them, writing 26th June 1873, after referring to his ineffectual efforts to get the surveyor to review his field notes, closes his letter by saying: "So soon as Col. B. reports the results of this review, I will unite with the other commissioner in making a fair adjustment of the matter." Again, on the 25th May 1874, they both write thus: "When Col. B. reports the results of his re-survey and some definite