#### M. W. STERN v. W. J. BENBOW.

(Filed 15 December, 1909.)

1. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Parol Evidence.

In an action to reform a written contract to convey land in conformity with an alleged guarantee of the vendor that the tract contained a certain number of acres, which, in fact, it did not contain, it is not necessary that the guarantee be in writing. The requirement imposed in this case, by the trial judge, that plaintiff show that defendant had omitted the guarantee from the written instrument, was not to defendant’s prejudice and therefore not reversible error.

2. Deeds and Conveyances — Contracts to Convey Lands — Guarantee of Number of Acres — Option of Grantee — Remedy—Measure of Damages.

When plaintiff has alleged and proven that the defendant had guaranteed that a certain tract of land, the subject of a written contract to convey between them, contained a hundred acres, and in fact, that it contained something less than eighty acres, it is optional with him to cancel the contract or take a deed for the land with a pro rata abatement in the price. In the latter case he may recover such damages arising from the loss of rents and profits he may have sustained as the proximate and direct result of having been wrongfully kept from the possession, less the interest on the unpaid balance of the purchase price.

3. Same — Actual Damages — Rents and Profits.

Plaintiff having established by the verdict of the jury, under competent evidence and correct instructions of law, that a contract to convey lands made with him by defendant should be reformed so as to include a guarantee that it contained one hundred acres, and that in fact it contained less than eighty acres, and also, certain loss of rents and profits by reason of his having been wrongfully kept from possession, he is entitled to a judgment that defendant hold the lands as a security for the balance of the purchase price due, with interest thereon, ascertained by deducting from the purchase price the amount thereof theretofore paid, and such damages as directly and proximately resulted to plaintiff by the wrongful withholding of the possession by the defendant.

4. Deeds and Conveyances — Contracts to Convey Lands — Breach— Damages Remote.

The plaintiff cannot recover of the defendant, as damages for unlawfully withholding possession of certain lands he had contracted to convey, the expense of moving his son and family from an adjoining State and boarding them during the time the possession had thus been withheld, such damages being too remote.

5. Issues, Inconsistent — Verdict—Judgment.

The exception by appellant to a judgment rendered on the verdict in favor of appellee, on the ground of inconsistent issues, cannot be sustained when it appears that appellee was entitled to his verdict on the answer of the jury as to each.

Manning, J., dissents.

*461Appeal by defendant from Long, JFebruary Term, 1909, of • G-uileord.

Tbe facts are stated in tbe opinion.

King & Kimball for plaintiff.

Morehead & Sapp for defendant.

OlaRK, O. J.

Tbe jury found, in response to tbe issues submitted, .that tbe defendant contracted to sell and tbe plaintiff contracted to buy tbe lands referred to in tbe complaint and included in tbe survey set out in tbe complaint; that tbe defendant represented to tbe plaintiff and guaranteed bim that there were 100 acres in tbe tract, and tbe plaintiff, sd believing, was induced to contract to pay therefor $5,850; that, in fact, tbe tract contained only 78 3-100 acres; that tbe plaintiff would not have bought tbe lands if be bad known at tbe time that tbe area was less than 80 acres; that tbe defendant, falsely and fraudulently, in order to induce tbe plaintiff to buy tbe land, represented to bim that tbe tract contained 100 acres, and tbe plaintiff, relying upon such representation, did purchase said land; that tbe plaintiff, on account of tbe deficiency in tbe acreage, is entitled to an abatement in tbe price of $1,238.45, and is also entitled to recover $355 damages.

Upon this verdict tbe court entered judgment that tbe defendant bolds tbe lands described in tbe complaint, first, as a security for tbe balance of tbe purchase money, and next thereafter for tbe benefit of and to be conveyed, with tbe joinder of 'bis wife, to tbe plaintiff, on payment of tbe purchase money, to-wit, $4,611.55, on account of tbe purchase price of tbe land, less $100 paid 12 November, 1906, which sum tbe defendant is entitled to recover of tbe plaintiff, less tbe further sum of $355, damages assessed by tbe jury, with interest on tbe balance from 12 November, 1906, upon payment of which sum tbe said defendant will execute deed in fee (with the joinder of bis wife in tbe conveyance), with tbe usual covenants of warranty, seizin, etc., and give possession therewith to tbe plaintiff.

This action is brought for tbe purpose of reforming an agreement, entered into 12 November, 1906, between tbe defendant and wife and tbe plaintiff, giving tbe plaintiff an option for tbe purchase of tbe said lands, fo make it speak tbe truth, by inserting a guarantee alleged to have been given by tbe defendant and wife that the said tract contained 100 acres, and to procure specific "performance by tbe execution of a deed for tbe correct number of acres, upon payment of tbe agreed purchase price, reduced by a pro rata amount for tbe deficiency in tbe number of acres.

*462It appeared in evidence that the defendnant had advertised the land for sale in the Greensboro Patriot as containing 108 acres, and that he had listed it in writing, with a real-estate agent, as his agent, to sell the same, as containing 108 acres, and that said agent so represented it to the plaintiff, and that the defendant, in a personal interview with the plaintiff, guaranteed that the tract contained 100 acres; that the tract of land consisted originally of three tracts, which had been bought by the defendant, and that, adding up the acreage set out in the three deeds to the defendant, the sum was between 75 and 80 acres. The defendant denied that he had guaranteed the number of acres or that anything was omitted from the contract in evidence.

"When a contract is reduced to writing, parol evidence cannot be admitted, to vary, add to, or contradict the same. But when a part of the contract is in parol and part in writing, the parol part can be proven if it does not contradict or change that which is written. Nissen v. Mining Co., 104 N. C., 310, and citations in annotated edition.

It is true, also, that an agreement for the conveyance of land is not binding unless reduced to writing and signed by the party to be charged; but a guarantee of the number of acres, like the receipt of the purchase money or recital of the consideration, is not required to be in writing. Sherrill v. Hagan, 92 N. C., 349; McGee v. Craven, 106 N. C., 356; Currie v. Hawkins, 118 N. C., 595; Quin v. Sexton, 125 N. C., 452; Brown v. Hobbs, 147 N. C., 77.

In requiring, therefore, the plaintiff to show that the guarantee of the acreage was omitted from the instrument by mistake, the court placed an undue burden upon the plaintiff, but of this the defendant cannot complain.

In a contract to convey, or a conveyance of land, if there is a shortage in the number of acres, the grantee is not entitled to a pro rata abatement in the purchase price if both parties had equal source of information (which was not the case here), unless the vendee has taken a guarantee as to the number of acres. Smathers v. Gilmer, 126 N. C., 757. But this is what the plaintiff contends he did on this occasion, and the jury has found this issue in accordance with his testimony. It was optional with the vendee, in view of so material a* shortage, to cancel the contract or to take the deed with pro rata abatement in the price. 26 A. & E. (2d Ed.), 116.

The defendant contends that the verdict was inconsistent in ■6Tiding on the third issue that the defendant believed the land contained 100 acres, and in response to the sixth issue that he *463was guilty of fraud in inducing tbe plaintiff to believe tbat it contained 100 acres. Both, these allegations were in the complaint, there being two causes of action set out. There was evidence to support both, and the issues were submitted by consent. This is not the case of inconsistent findings upon the same evidence, nor is it the case where one finding would require a judgment in favor of the plaintiff and the other a judgment in favor of the defendant. In McCaskill v. Currie, 113 N. C., 316, it is said: “A careful review of the cases in which this Court has given its approval to setting aside verdicts on account of inconsistent findings discloses the fact that the rulings have invariably rested upon the ground that there were two responses to different issues in each case, one of which would support a decree for the defendant, while the other would entitle the plaintiff to recover. So that, the court could not proceed to judgment, because there was no principle of law which empowered the judge to choose between the two contestants, both of whom had been declared by the jury to be the prevailing party. Mitchell v. Brown, 88 N. C., 156; Bank v. Alexander, 84 N. C., 30; Morrison v. Watson, 95 N. C., 479; Turrentine v. Railroad, 92 N. C., 638; Porter v. Railroad, 97 N. C., 66; Allen v. Sallinger, 105 N. C., 333; Puffer v. Lucas, 107 N. C., 322. But when the verdict points out who is the prevailing party, and determines distinctly the facts upon which the nature and measure of his redress depend, the court is not precluded from pronouncing the sentence of the law upon the findings, because, upon two allegations in the complaint, in the nature of separate counts in a declaration or distinct grounds'of action, issues have been framed and responses returned which are not in perfect harmony with each other, when it appears that upon either finding, considered separately, the same party (here the plaintiff) would be entitled to precisely the same judgment. In the case at bar, whether the defendant inserted the description of the 150-acre tract of land in the deed before it was signed, and, by undue influence .or false representation, induced the grantor to execute it in that shape, or whether, after execution, he forged the portion of the deed embracing the calls of that tract, in either event the court would declare the deed fraudulent and void as a conveyance of the 150-acre tract, and adjudge that the plaintiff recover the possession and costs in the action. ... If the judge who presided in the court below entertained any doubt about the weight of the evidence and thought that the findings of the jury upon both issues, together with other circumstances, indicated that they were unduly biased in favor of the plaintiff, he might have *464set aside tbe verdict in tbe exercise of a sound discretion, and tbe order would not bave been reviewable bere. But we do not tbink tbat tbe verdict is so contradictory or inconsistent tbat tbe court could not see wbat judgment should be entered. Mere informality will not vitiate a verdict if it appears tbat no injustice will result from an adjudication upon its substance or general purport. Hawkins v. House, 65 N. C., 614; McMahon v. Miller, 82 N. C., 317; Walker v. Mebane, 90 N. C., 259. . . . We bave extended our examination of authorities upon practice in cases of this kind to tbe text writers and decisions of other courts, and we bave not found any case where two findings which would support precisely the same judgment in favor of tbe same party bave been set aside on tbe ground of inconsistency in tbe verdict.”

Tbe foregoing is tbe case presented bere. Tbe plaintiff is entitled to precisely tbe same relief, regardless of which of tbe issues (three and six) tbe jury answered affirmatively. In no phase of tbe case is the defendant entitled to a decree upon tbe findings of tbe jury; and by no possibility, with reference to tbe relief sought, is injury done him by the findings on tbe sixth issue.

There were sundry exceptions to tbe evidence, in which we find no error 'and which require no discussion, in view of wbat we bave said, which is also conclusive as to tbe exceptions, for tbe refusal of certain prayers for- instructions. Tbe charge was full and complete, and not excepted to, in any material particular. Tbe jury evidently understood the facts in issue and bave determined them.

As to tbe ninth issue, tbe plaintiff was entitled to recover the net value of tbe wheat crop, if (as tbe jury found) it was to pass to tbe vendee, but-not tbe expense of bringing bis son and family from Virginia and boarding them while disappointed of getting possession. This was too remote. Tbe damages while wrongfully kept out of possession of realty are tbe rents and profits, while tbe vendor is entitled to interest on tbe purchase money. If there were any mesne profits, except tbe wheat, probably the parties can agree as to their value; if not, tbe court below will permit the plaintiff to amend bis complaint, and there will be a new trial of the ninth issue, as to tbe wheat and value of other mesne profits. In all other respects we find

No error.

MANNING, J.,

dissenting: Concurring with tbe conclusion reached by tbe Court, tbat a partial new trial should be bad, I regret tbat I cannot agree with them in tbe conclusion reached *465in tbe disposition of tbe principal questions presented by tbe appeal. In my opinion, tbe option giving tbe plaintiff thirty days to determine bis acceptance or rejection, it, wben accepted, became tbe contract and embodied all its terms, and it was not permissible to add to or vary its terms. If tbis were permitted, non constat, tbat' tbe defendant would bave made sucb a proposition.