#### PINCKNEY MORRISON vs. JOHN RUSSELL.

An award must be signed by the arbitrator, and made known to the parties- and delivered, before it can be admitted in evidence.

Appeal from the Superior Court of Law of Cabarrcs County, at the Fall Term 184S, his Honor Judge Moore presiding.

This was an action of assumpsit. The contract, upon which the plaintiff declared, was the following : The plaintiff purchased, from the defendant a tract of land of 200 acres, at a certain price by the aere, and it was agreed at the time of the purchase, that, if there should not he 200 acres in the tract, the defendant was to refund to him whatever the deficiency might amount to, at the rate at which.the plaintiff was to pay for the laud, and it was further state',1, as a part of the contract, that, after the deed had been made for the land, the plaintiff had the land- surveyed, and it was ascertained, that the tract consisted of a much less number of acres than that for which it was bought, of which the defendant was duly notified, and that the defendant agreed to refund at the rate, at which the plaintiff had purchased the land. For the purpose of proving the contract set forth in the declaration, the plaintiffintroduced a witness, who stated, that, at the time of the contract of sale, the legal title was in him, it having been previously conveyed to him by the defendant by a deed of trust; that both the plaintiff and the defendant came to him, and stated, that the defendant bad sold the land tp the plaintiff, as a tract of 200 acres, at *274'02.000. Before the deed was executed, a survey was made of the 'land a'nd it was ascertained to contain 212 acres, whereupon the witness refused to execute the deed» ■unless the plaintiff would agree to pay more than #2,000. After some conversation upon the subject, the witness stated, he would join with the defendant in a conveyance ■of the la'ndfif the plaintiff would pay an additional sum. The plaintiff accordingly secured that amountto the satisfaction of the witness and the defendant, and they joined in a conveyance of the land to tire plaintiff. This sate -took place on the day of 18 In May 1840, the plaintiff had the land surveyed by one Smith, who made out but IS6 1-4 acres in the tract. The ■defendant had no notice of the time when this survey was made, but, after if bad been made, the plaintiff informed him of theresult of the survey and the defendant remarked that Smith’s survey was not correct, as his compass'did ■not work right. He also stated, that if the plaintiff would get another surveyor to run off the land, and it should be ascertained by him tobe less than what he sold it for, he would pay him in money or land or give him the 19 acres, if ifhat would satisfy him. The plaintiff proved, that, shortly after this, he did get the -surveyor named by the defendant to survey the land, and gave notice to the defendant of the time the survey was to be made, but the defendant refused to attend. There is no evidence by what paper title this survey was made, nor was it proved that any person pointed out to the surveyor the lines by which the land was defined. Upon these facts, and it being proved thatthe surveyor was dead, the plaintiff offered in evidence the plot of the land purchased, w'hich the surveyor had made, for the purpose of showing that the quantity of land was less than it was represented to be by the defendant. This evidence was rejected by the Court. The plaintiff here closed his case, and thé Court expressing the opinion that the plaintiff could not recov*275er, upon the evidence offered, the plaintiff,.in submission, ■ thereto, suffered a non-suit. Judgment and appeal. :

Osborne, for the plaintiff.

Wilson, H. G: Jones and Boyden, for the defendant.’

Nivsir, J.

We concur with.-his Honor, that the plaintiff' was not entitled to a verdict. There was a variance between the contract proved by the witness and that declared on.. The contract declared on was, that the defendant sold to the plaintiff a tract of land, as containing; two hundred acres at $.10’per acre, and it was agreed, if, , upon survey, it should turn out, that the tract did not con-tain two hundred acres, the defendant should refund whatever the difference might amount to, at the rate of which the plaintiff was to pay for the whole, and the conveys, anee was made. The contract proved was as follows the defendant had conveyed the land- in trust, and the trustee testified, that the parties came to him and stated* that the-defendant had sold the tract to the plaintiff as: containing two hundred acres, at the price of $2000. Before the deed was made, a survey was had,.and it was as- - certained to contain two. hundred, and twelve acres, whereupon the witness refused to execute the deed unless the plaintiff would agree to pay more than two thousand, dollars ; whereupon it was agreed between the plaintiff and. the defendant that the former should-pay for the land $2100 — and the conveyance was made. These contracts are essentially different. One is for the sale of a tract of. land, containing two hundred acres at the price of $2000 the other for the sale of a tract of land containing two hundred and twelve acres for the sum of $2100 ; nor was. there in the latter contract any agreement on the part of the defendant to refund any part of the price, upon the contingency that the tract should, not contain two hun»dred and twelve acres. If the contract declai’ed on. ever *276was made, it was certainly rescinded by the parties, and a new one made, different from it. The plaintiff further alleged, that, after the conveyance was made for the land,, ho ascertained by the survey that the tract did not contain two hundred and twelve acres, but only one hundred and eighty six and one quarter acres, which he communicated to the defendant, who promised, if he would get the land surveyed by a particular surveyor, and it should be ascertained, that the quantity of land was less than what he sold it for, he would pay him in land or money and give him the twelve acres, if that would satisfy him. If this was a valid contract, as founded on a sufficient consideration, it differed from both the others and certainly did not support the declaration.

A question, however, has been made, as to the admissibility of the evidence offered by the plaintiff to show that the land was different in quantity. The surveyor selected to make the survey is dead, and a plot of the land, alleged to have been made by him, was offered in evidence and rejected by the Court, and we think very properly. It had no feature of a paper, entitled to be regarded as evidence. It could not assume a higher character, than that of an award, which in fact and substance it was. But to make it available as such, it must be signed by the surveyor and made known to the parties. Until delivered, an award by the arbitrator, may be altered. It is the delivery, which makes it final as to him. There is nothing to show, that the surveyor considered the plot as finished. We give an opinion on this point, as it is made in the case, and it may facilitate a future trial. Judgment affirmed.

Per Curiam

Judgment affirmed#