#### L. H. DUFFY v. J. HENRY PHIPPS.

(Filed 10 November, 1920.)

1. Contracts — Sale of Hands — Price Per Acre.

Defendant’s contract to sell about 204 acres of land known as a certain farm, adjoining named owners and others, at a certain price per acre, is a sale by the acre, and plaintiff is entitled to a rebate, or a return of the amount he has overpaid on account of less acreage than that specified in the contract.

2. Same — Deeds and Conveyances — Merger—Pleadings—Demurrer.

A contract for the sale of about 204 acres of land at a certain price per acre does not merge in a deed given for the tract specifying 197 acres, in assumed execution of the contract, and the plaintiff may recover of the defendant for the shortage of acres ascertained; and a demurrer to the complaint with these allegations is bad.

Appeal by defendant from Bay, J., at September Term, 1920, of G-uileoed.

Tbe defendant entered into a written contract in November, 1919, as follows: “I agree to sell L. J. Duffy about 204 acres of land, known as tbe Buffalo farm, and adjoining tbe lands of Cicero Ifoore, C. D. Benbow, and Thomas Pemberton and others, at $100 per acre, and I acknowledge tbe payment of one bundled dollars as first payment on said lands, and in case tbe sale is not closed within 60 days then this $100 is forfeited and all agreements are null and void. I agree in case that L. J. Duffy completes this trade, to take $2,000 cash; $3,000 in six months; $5,000, 1 December, 1920; $5,000, 1 December, 1921; $5,000, 1 December, 1922 — all notes bearing 6 per cent interest from date of deed, possession to be given by 1 January, 1920.”

On 4 December, 1919, tbe defendant made a deed to tbe plaintiff reciting therein that be conveyed 197 acres, and stating that tbe tract contained that number of acres. Tbe plaintiff paid cash and executed notes on that basis. On actual survey tbe tract was found to contain 156.565 acres, a shortage of 40.435 acres, and this action is brought to *314recover casb or cancel notes for $4,043.50, for failure of consideration upon tbe ground tbat tbe lands were purchased by tbe acre and not as a tract.

Tbe defendant demurred upon tbe ground tbat tbe complaint fails to state a cause of action because tbe contract bad becorpe merged in tbe deed, and further, because tbe contract was indivisible, and tbe plaintiff’s remedy, if any, was to offer to return tbe land and recover tbe entire purchase money. Tbe defendant appealed.

Brooles, Hines & Kelly and Broadhurst & Cox for plaintiff.

Fentress & Jerome for defendant.

Glare, O. J.

Tbe defendant’s contract to sell tbe plaintiff “about 204 acres of land, known as tbe Buffalo farm, and adjoining tbe lands of Cicero Moore, C. D. Benbow, Thomas Pemberton, and others, at $100 per acre” was a sale by tbe acre, and tbe plaintiff is entitled to a rebate, or a return, of tbe amount overpaid. Henofer v. Realty Co., 178 N. C., 584.

Tbe defendant contends tbat tbe contract was merged in tbe deed, and therefore tbe complaint does not state a cause of action. Tbe deed representing tbat tbe acreage was 197 acres was tbe act of tbe defendant in assumed execution of tbe contract and tbe acceptance of it by the plaintiff does not estop him from showing a shortage in tbe acreage and from a recovery of tbe amount overpaid. McGee v. Craven, 106 N. C., 353; Brown v. Hobbs, 147 N. C., 77; Kendricks v. Ins. Co., 124 N. C., 318.

Tbe deed was made in pursuance of tbe contract, and tbe estimate in tbe contract, “about 204 acres,” and tbe estimate in tbe deed, “197 acres,” and tbe estimate in tbe contract of $20,000 are all subsidiary to tbe contract of sale “at $100 per acre.” "Whenever tbe true acreage was ascertained, whether it was more than tbe above estimates or less, tbe amount of tbe purchase monby was to be ascertained by multiplying such acreage by $100. This is tbe basis' of tbe contract. If it bad turned out tbat tbe true acreage was more than this estimate, tbe plaintiff would have bad to pay tbe increased amount. It proving to be less, tbe defendant must refund tbe overpayment.

Affirmed.