#### Gilbertson v. Clark.

Opinion delivered January 23, 1928.

*1123 Potoett, Smead <& Knox, for appellant.

T. J. Gaughan, J. T. Sifford, J. E. Gaughan and E. E. Godwin, for appellee.

Hart, C. J.,

(after stating-the facts). The law applicable to cases of this sort is well settled in this State. In Joseph v. Balter, 95 Ark. 150, 128 S. W. 864, it was held that the mention of the quantity of acres after a definite and certain description of the land by metes and bounds does not amount to a covenant in a deed, unless so expressly declared, nor afford a cause of action, though the quantity of acres should fall short of the amount named. It was further held that a vendee cannot complain of a' fraudulent misrepresentation made by the vendor as to the number of acres sold to him if, before the sale was made and accepted, the vendee was informed as to the actual number of acres in the tract sold, and, with that knowledge, consummated the contract of sale. In such case the vendee can only recover damages -upon the theory that he was induced to purchase the land by *1124the fraudulent representation of his vendor as to the quantity of the land. Where the vendee has knowledge of the deficiency of the quantity of the land, he is not misled by any misrepresentation of his vendor and is not induced to make the contract by a misrepresentation of the quantity of the land which he knows to be untrue. In short, if he knows that there is a deficiency in the quantity of the land and knows how much land he is purchasing, he has no right to rely upon the representation of his vendors as to the quantity of the land.

Again, in Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787, it was held that, when a vendor conveys for a specified price a tract of land which is described by -metes and bounds or otherwise, with the words added, “containing a specified number of acres, more or less,” this is a contract not by the acre but in gross, and does not by implication warrant the quantity. It was further held that a misrepresentation in a sale of land, to affect the validity of the contract, must relate to some matter of inducement to the making of it, in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and.trust which he reposes in the representations of the other, on account of his superior information and knowledge in regard to the subject of the contract.

In the application of the principles of these oases to the facts in the case at bar, appellants cannot maintain an action for damages upon the ground that there has been a breach of a covenant of any implied warranty of the quantity of the land. The lease shows that there was no express warranty of the quantity of the land, and appellants do not claim that the deed contains a clause expressly warranting the quantity of the land. Hence their cause of action is founded upon the ground that they were induced by false representations as to the quantity of the land to agree to pay the price expressed in the lease.

*1125This is an application of the general rule that, where the description of the land is ¡by definite boundaries, or by words of qualification, as “more or less,” the statement of the quantity of acres in the deed is a mere matter of description, and not the essence of the contract. Hence the buyer takes t'he risk of the quantity, if there is no element of fraud in the case. It cannot be said in this case that the difference between the actual and estimated quantity of acres is so gross as to conclusively warrant a finding’ that the parties would not have contracted had the shortage been known. It is true that the price was considerable, but, when the attending circumstances are considered, it is evident that the quantity of acres was not the controlling factor in the premises.

Gilbertson was representing a corporation which was speculating in oil and gas leases, and the corporation had a quantity of acreage which had not been developed for oil or gas. He wished to purchase the lease in question for his corporation and to add it to what is termed “wildcat” acreage in order to better sell that acreage. In other words, the lease in question had been drilled for oil and had producing wells on it at the time Gilbertson purchased the lease. According to the testimony of Dr. Clark, Gilbertson wished to add these producing acres to his wildcat acreage in order to sell the latter.

As to whether the representation as to the quantity of acres was actually made, the testimony is in direct and irreconcilable conflict. Gilbertson testified that both Dr. Clark and Judge Gould represented that the lease contained 71 acres, and that he would not have purchased it if he had not believed the representation to be true. He is corroborated by the testimony of W. G. Sawyer in every respect. The testimony of Bruce only goes to the fact of the representation made by Sawyer as to the number of acres in the lease, and adds nothing to the testimony of Sawyer on that point. On the other hand, Judge Gould says that he never knew Sawyer, and did not authorize him to make such representation about the quantity of land in the lease. Dr. Clark denies having *1126employed Sawyer to represent him in selling the lease, and denies authorizing him to represent that the lease contained 71 acres. He testified that McGahey, who was his agent, brought SaAvyer to his room -with Gilbertson, and that he supposed that Gilbertson, and Sa^wyer were associated together. McGahey says that he only showed the old lease to Gilbertson, and told him that that was all that he knew about the quantity of acreage in the lease. This could not be said to be a concealment of the quantity of the acreage, for both Dr. Clark and Speary testified that Gilbertson was told about the shortage in the lease Avhile he was examining the property Avith a view to purchasing the lease. The lease was executed the latter part of January, 1924, and Gilbertson says he did not discover the shortage until some time in December of that year. He admitted that he was on the lease frequently during this time, and was familiar Avith locating and drilling wells on such leases. The land as described in the lease was 71 acres, and it is deducible from all the circumstances that a man of Gilbertson’s experience in oil leases would have ascertained the shortage by being on the land much sooner than he did discover it. This is a circumstance which might be considered in testing his credibility.

We have examined the evidence as it appears in the record, and considered it in all its bearings, and have reached the conclusion that it cannot be said that a preponderance of the evidence shows that Dr. Clark falsely represented the quantity of the acreage to be 71 acres. Therefore the decree of the chancellor mil be affirmed.