Smith v. Fly
Texas Supreme Court
Appeal from Gonzales. Tried below before the Hon. Fielding Jones. This was a suit brought by David E. Smith against John D. Fly, on the first day of April, 1859, to recover damages for an alleged deficiency of 115 acres, in a tract of land purchased by him from the defendant, on the 29th of December, 1853. The petition alleged, that on the day last aforesaid, the plaintiff purchased of the defendant a tract of land therein described, and that the defendant then executed to…
Read the full summary
Appeal from Gonzales. Tried below before the Hon. Fielding Jones. This was a suit brought by David E. Smith against John D. Fly, on the first day of April, 1859, to recover damages for an alleged deficiency of 115 acres, in a tract of land purchased by him from the defendant, on the 29th of December, 1853. The petition alleged, that on the day last aforesaid, the plaintiff purchased of the defendant a tract of land therein described, and that the defendant then executed to him a deed, which was made a part of the petition ; that at the time of the said purchase and the receipt of the deed,…
1Opinion of the CourtWheeler, C. J.
It appears to be well settled that, in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to *350have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief. (1 Sugden on Vendors, ch. 7, § 3; Mitchell v. Zimmerman, 4 Texas Rep. 75; 4 Kent, Com. 457; 1 Story, Eq. § 141.) And this, says Judge Story, would be so, although the land was described as so many acres, “more or less.” It would certainly be so,…
2Cases cited6 opinions
- Bell v. MorrisonSupreme Court of the United States · 1828
- Bank of the United States v. DANIELSupreme Court of the United States · 1838
- Mitchell v. ClayTexas Supreme Court · 1852
- Hopkins v. WrightTexas Supreme Court · 1856
- Smith v. TalbotTexas Supreme Court · 1857
1 more not listed; retrieve them via the Exa API.
3Cited by109 opinions
- Luckenbach Steamship Co., Inc. v. United StatesCourt of Appeals for the Second Circuit · 1963
- Mason v. PetersonTexas Commission of Appeals · 1923
- Bass v. JamesTexas Supreme Court · 1892
- Gordon v. Rhodes & DanielTexas Supreme Court · 1909
- Oldham v. MedearisTexas Supreme Court · 1897
104 more not listed; retrieve them via the Exa API.