decreeing an abatement of the purchase price for the shortage of 78 acres at $30 an acre, or $2,340.

No. 2784. Submitted April 28, 1915. Decided May 10, 1915.

HEARING on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia granting the relief sought in a bill in equity to require the defendant to make an abatement of the purchase price of land because of a shortage in the number of acres called for in the deed.

Affirmed.

The COURT in the opinion stated the facts as follows:

Appellee, James Sharp, plaintiff below, filed a bill in equity in the supreme court of the District of Columbia seeking an abatement on the purchase price of a farm purchased from appellant, Mary E. Dulin, because of a shortage in the number of acres called for in the deed.

It appears that in May, 1911, defendant conveyed to plaintiff a farm in Virginia described in the deed as follows: "All that certain tract or parcel of land, with all improvements thereon and all of the appurtenances thereunto belonging or in any wise appertaining, situated in Brentsville magisterial district, Prince William county, Virginia, on the road leading from Bristow to Greenwich, and bounded by the Greenwich and Brentsville road, the lands of Michael House, George Hunton, and Samuel Simpson and Broad Run, containing 500 acres, more or less." The consideration in the deed was $15,000, of which $5,000 was paid in cash and the balance in deferred pay

ments.

After plaintiff entered into possession of the land and made considerable improvements thereon, he caused a survey to be made, which disclosed a shortage of over 100 acres. Not satisfied with the accuracy of this survey, he had another made, which showed that the farm contained 422 acres, which was 78 acres short of the amount called for in the deed. The court. below decreed an abatement of the purchase price for 78 acres

at $30 per acre, or $2,340. From the decree defendant has appealed.

Mr. Michael J. Colbert and Mr. Charles C. Lancaster, for the appellant, in their brief, cited: 20 Am. & Eng. Enc. Law, 2d ed. 813-815, 831; Caldwell v. Craig, 21 Gratt. 132; Crislip v. Cain, 19 W. Va. 438; Crowder v. Langdon, 38 N. C. 476; Cunningham v. Miller, 82 Va. 526; Delta Co. v. County Commissioners, 17 Colo. 41; Eastman v. Water Power Co. 24 Minn. 437; Emerson v. Stratton, 107 Va. 303; Farrier v. Reynolds, 88 Va. 141; Fritz v. Fritz, 94 Minn. 264; Graham v. Larmer, 87 Va. 222; Grymes v. Sanders, 93 U. S. 55; Hall v. Mayhew, 15 Md. 551; Jackson v. Magbee, 21 Fla. 622; Jones v. Tatum, 19 Gratt. 720; Kenton v. Bradford, 5 Leigh, 47; Kerr, Mistake; King v. Brown, 54 Ind. 368; Max Meadow Land & Improv. Co. v. Brady, 92 Va. 76–80; McDonnell v. Milholland, 48 Md. 545; Lewman v. Kay, 67 W. Va. 98; Northwestern M. L. Ins. Co. v. Nelson, 103 U. S. 549; Orr & Litton v. Goodloe, 93 Va. 263; Pendleton v. Stewart, 5 Call (Va.) 1; Russell v. Keeran, 8 S Leigh. 9; 1 Story, Eq. Juris. § 150; Sappiris v. Goldberg, 192 U. S. 232; Sawyer v. Horey, 3 Allen, 331; Stellheimer v. Killip, 75 N. Y. 282; Stiles v. Willis, 66 Md. 552; So. Development Co. v. Silva, 125 U. S. 247; Trinkee v. Jackson, 86 Va. 238; Tucker v. Cocke, 2 Rand. (Va.) 51; Turner v. Kelly, 70 Ala. 85; Van Horn v. O'Connor, 42 Wash. 513; Ward v. Moore, 60 W. Va. 615; Wells v. Lagorio, 112 Va. 522; Whittaker v. S. W. Va. Imp. Co. 34 W. Va. 221; Wilson v. Western N. C. Land Co. 77 N. C. 445.

Mr. E. Hilton Jackson and Mr. Robert H. Turner, for the appellee, in their brief, cited: Benson v. Humphreys, 75 Va. 303, 307; Berry v. Fishburne, 104 Va. 459; Blessing v. Beatty, 1 Rob. 287, 289; Boschen v. Jurgens, 92 Va. 756; Brine v. Insurance Co. 96 U. S. 627; Caldwell v. Craig, 21 Gratt. 132; Emerson v. Stratton, 107 Va. 303, 307; Farrier v. Reynolds, 88 Va. 141; Gallagher v. Hastings, 21 App. D. C. 87, 88; Garrell v. Goff, 61 W. Va. 221; Hull v. Walls, 95 Va. 10; Hundley

v. Lyons, 5 Munf. 342; Hurt v. Staull, 3 Md. Ch. 2428; Jones v. Tatum, 19 Gratt. 726; Keyton v. Brawfords, 5 Leigh, 39, 48; McGoon v. Scales, 9 Wall. 23; Massie v. Watts, 6 Cranch, 148; Moore v. Jaeger, 2 MacArth. 465; Pack v. Whitaker, 110 Va. 122, 124; Pendleton v. Stewart, 5 Call, 6; Penn v. Lord Baltimore, 1 Ves. Sr. 444; Quesnal v. Woodlief, 6 Call. 218; Roger v. Kane, 5 Leigh, 606; Russell v. Keeran, 8 Leigh, 9; Smallwood v. Hatton, 4 Me. Ch. 95; Sergeant v. Linkous, 83 Va. 664; Trinkle v. Jackson, 86 Va. 238; Tucker v. Cocke, 2 Rand (Va.) 51; Watson v. Hoy, 28 Gratt. 696; Yost v. Mallicote, 77 Va. 201.

Mr. Justice VAN ORSDEL delivered the opinion of the Court:

We are satisfied with the findings of fact by the court below, both that a shortage exists and that plaintiff was led to purchase the farm in the belief and upon the representation that it contained 500 acres. In fact, it is conceded in the answer that it was generally understood in the community that the farm contained 500 acres. The contract of sale called for 509 acres, more or less, but the deed supplemented that contract, and must be treated as the final agreement between the parties. With this defendant cannot complain, since the shortage is less according to the deed than the contract. Besides, the number of acres mentioned in the deed conforms to the number of acres the farm was reputed to contain.

The deed must be interpreted according to the law of Virginia. In Benson v. Humphreys, 75 Va. 198, the rules of construction applicable to conveyances of this sort are stated as follows: "First. Every sale of real estate where the quantity is referred to in the contract, and where the language of the contract does not plainly indicate that the sale was intended to be a sale in gross, must be presumed to be a sale per acre. Second. The language 'more or less,' used in contracts for sale of land, must be understood to apply only to small excesses or deficiencies, attributable to variations of instruments of surveyors, etc. When these terms are used it rather repels the idea

Opinion of the Court.

[43 App of a contract of hazard, and implies that there is no consider able difference in quantity. Third. While contracts of hazard are not invalid, courts of equity do not regard them with favor. The presumption is against them, and while such presumption may be repelled, it can only be effectually done by clear and cogent proof. Fourth. The burthen of proof is always upon the party asserting a contract of hazard; for the presumption always being in favor of a sale per acre, a sale in gross, or contract of hazard, must be clearly established by the facts. Fifth. Where the parties contract for the payment of a gross sum for a tract or parcel of land upon the estimate of a given quantity, the presumption is that the quantity influences the price to be paid, and that the agreement is not one of hazard. Sixth. Whether it be a contract in gross or for a specific quantity depends, of course, upon the intention of the contracting parties, to be gathered from the terms of the contract and all the facts and circumstances connected with it. But in interpreting such contracts the court, not favoring contracts of hazard, will always construe the same to be contracts of sale per acre, wherever it does not clearly appear that the land was sold by the tract, and not by the acre." This rule of interpretation is also sustained in Watson v. Hoy, 28 Gratt. 698; Camp v. Norfleet, 83 Va. 380, 5 S. E. 374.

While it is true that plaintiff visited the land before making the purchase, and the lines were pointed out to him in a general way, the evidence is convincing that defendant represented to plaintiff that the farm contained 500 acres, and on this basis the price was fixed at $30 per acre, or $15,000 for the 500 acres. If there was doubt on this point, the doubt would be resolved in favor of a sale by the acre. Pack v. Whitaker, 110 Va. 122, 65 S. E. 496. But independent of the decisions of the Virginia courts, the great weight of authority is to the effect that where the vendor represents to the vendee that a tract contains a given number of acres, the vendee may rely upon the representation, and where the sale is of a given number of acres, more or less, and the shortage is so great as to indicate a mutual mistake, equity will extend relief. The rule is the same where the vendee is taken upon the premises and

shown the boundaries. Quarg v. Scher, 136 Cal. 406, 69 Pac. 96; Lovejoy v. Isbell, 73 Conn. 368, 47 Atl. 682; Estes v. Odom, 91 Ga. 600, 18 S. E. 355; Antle v. Sexton, 137 Ill. 410, 27 N. E. 691; Ledbeter v. Davis, 121 Ind. 119, 22 N. E. 744; Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Boggs v. Bush, 137 Ky. 95, 122 S. W. 220; Starkweather v. Benjamin, 32 Mich. 305; Judd v. Walker, 114 Mo. App. 128, 89 S. W. 558; Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371; Cawston v. Sturgis, 29 Or. 331, 43 Pac. 656; Rich v. Scales, 116 Tenn. 57, 91 S. W. 50.

The decree is affirmed with costs.

Affirmed.

SPATES v. WELLS BROTHERS.*

MASTER AND SERVANT; FELLOW SERVANTS; ASSUMPTION OF RISK; NEGLI

GENCE.

1. While it is the duty of a master to provide reasonably safe places in which and structures upon which his servants are to work, he cannot be expected, and is not required, to keep a building which they are employed in erecting in a safe condition at every moment of their work, so far as its safety depends upon the due performance of that work by them and their fellows.

2. If an act is done in the discharge of some positive duty of the master to the servant, then negligence in the performance of the act is negligence of the master, notwithstanding that it was performed through another servant. (Citing Carter v. McDermott, 29 App.

* Master and Servant-Safe Place to Work—Changing Conditions. -For cases passing upon the applicability of rule as to safe place where the conditions of work are changing, see notes to Citrone v. O'Rourke Engineering Constr. Co. 19 L.R.A. (N.S.) 340, and Smith v. North Jellico Coal Co. 28 L.R.A. (N.S.) 1267.

Same-Fellow Servants.-As to master's nonliability for coservant's negligence in respect to dangers arising from changing condition of building or other structures while in course of erection or repair, see note to Lafayette Bridge Co. v. Olsen, 54 L.R.A. 139.