#### BIRD v. BRADBURN.

(December 22, 1900.)

1. Specific Performance — Contract—Question for Jury— Issues — Trial.

Where a person alleges that he sold land in solido and the defendant contends that it was sold by the acre — there being a deficiency — it is for the jury to say how the land was sold.

2. Specific Performance — Executory Contract.

A person asking for specific performance of an executory contract must show he is able and ready to perform his part of it.

Civil ActioN by J. W. Bird against J. E. Brad'burn, beard by Judge T. A. McNeill, and a jury, at Spring Term, 1900, of JacicsoN Superior Court. From judgment for defendant, the plaintiff appealed.

Walter P. Moorej and Chas. A. Moore, for ilie plaintiff.

C. C. Coivan, for tbe defendant.

Furches, J.

On November Y, 1894, the plaintiff and defendant contracted for a sale and purchase of a tract of land in Jackson County, the plaintiff entering into bond to make title when the purchase-money should be paid, and the defendant paying a part of the purchase-money at the date of the contract, and giving five notes for the balance of the purchase-money, each in the amount of $120, and falling due in one, two, three, four, and five years. The bond describes the land sold as “lying in Jackson County, in Qual-latown township, known as Bower’s Cove,’ containing 140-acres, more or less, beginning on a black gum at the top' of *412tbe ridge dividing the lands of C. A. Bird and said lands, running a northerly direction, with main top of said ridge, to J. H. Teague’s line; tbence, with tlie top of the ridge and Teague’s line, westwardly to the head of the ridge, dividing said land with the Mr. Ingle’s line; thence southwardly, with the top of said ridge, to a pine (now down) corner of J. E. Battle’s land; thence a straight line to the beginning.” This action was originally commenced to recover judgment on the first two notes, which were then due. But the defendant., answering and setting up fraud in the contract, and also claiming that in fact, there were only 80 acres of land in the boundary described, which he bought for 140 acres, claimed that he was entitled to have a reduction in the price agreed upon, in proportion to the deficiency in quantity of acres sold; and it was then agreed between the parties that this action should be considered an action' in the nature of an action for a specific performance of the contract. On the trial the plaintiff contended that he sold the land as a whole, in solido, and not by the acre; that the defendant proposed to buy it by the acre, and he refused to sell it to him in that way, and told the defendant that his price was $1,100 for the land, be it much or little, and if defendant did not want it at that price he need not take it; while the defendant contended that he bought it by the acre, or for the amount that plaintiff alleged the tract contained, and that these statements induced him to buy the land at that price, and that he would not have bought the land at that price but for the representation of plaintiff that it contained 140 acres; and both parties offered evidence tending to sustain their contentions. These allegations and denials made the issues that should have been submitted to the jury; and we do not think they have been submitted to the jury by direct issues, as we think would have been' best, nor by the charge of the Judge, to the jury.

*413Tbis is an executory contract for the sale of land, and the plaintiff is seeking to have it specifically performed. To do this, he must show that he is able and ready to' perform his part of the contract. And if he agreed to sell the land by the acre, estimated to be 140 acres, and he is only able to convey to the defendant 80 acres, he is not able to perform his part of the contract, and would not be entitled to a decree for specific performance. Here the defendant does not seek to avoid the contract, but is willing to comply with it, as he says it was made, and only asks that the price agreed upon may be reduced in proportion to the reduction of acres in the tract of land.

The general rule is, that where there is so great deficiency in the amount as here, a loss of 60 acres in 140, the defendant would be entitled to a reduction in the price, provided he bought it for 140 acres, relying on the representations of the plaintiff, whether the plaintiff knew of the deficiency or not; while, on the other hand, if such representations did not induce him to buy the land, that he knew when he bought that it did not contain 140 acres, and took it as a whole whether it contained that amount or not, he would not then be entitled to a reduction in the price agreed upon.

It is alleged by plaintiff that there are peculiarities in the boundary of this land that exclude it from the general rule— the peculiar location and boundaries. These are only evi-dentiary facts that may be offered for the consideration of the jury in passing upon the issues that will be submitted to them. The jury found there was no fraud. There is error, for which there will be a

New trial.