Daniel Andrews v. Robert G. Horton

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CA 00-667

February 21, 2001

DANIEL ANDREWS

APPELLANT APPEAL PULASKI COUNTY

CIRCUIT COURT

VS.

HONORABLE JOHN WARD

CIRCUIT JUDGE

ROBERT G. HORTON

APPELLEE AFFIRMED

Daniel Andrews appeals from an order abating the purchase price on a parcel of land he sold to appellee, Robert Horton. For reversal, appellant contends that appellee was not entitled to a reduction in the purchase price because it was a sale of land "in gross." We affirm.

On August 3, 1997, appellant placed an ad in the newspaper for the sale of sixty-seven acres of land in the Keo area at a price of $1,200.00 an acre. Appellee responded to this ad, and the parties entered into an offer and acceptance agreement whereby appelleeagreed to purchase 66.76 acres "more or less" at a cost of $1,200.00 an acre. The closing statement showed a total purchase price of $80,112.00. Appellant provided a survey of the property before closing. The survey report contained both a description of the property taken from a previous deed, and a description based on the survey. The description taken from the deed reflected that the parcel consisted of 66.76 acres, while the survey description stated that the parcel contained only 61.4 acres. The warranty deed executed at closing reflected an acreage of 61.4 acres "more or less."

Two years after the sale, appellee learned from the county tax assessor that the property consisted of only 61.4 acres. Appellee then filed suit contending that he had purchased the land for $80,112.00, calculated at a cost of $1,200.00 an acre for 66.76 acres. Because the parcel contained 5.36 acres less than what was believed, appellee demanded an abatement of the purchase price in the amount of $6,432.00. After a hearing, the trial court granted appellee judgment in that amount.

Appellant contends on appeal that because the words "more or less" were used in the various descriptions of the acreage, the sale was one "in gross" and that appellee was not entitled to a reduction in the purchase price absent fraud or a gross disparity between the acreage represented and that which is actually sold. See, e.g., Burk v. Hefley, 32 Ark. App. 133, 798 S.W.2d 109 (1990). On the other hand, appellee relies on the rule that where there is a sale by the acre and the statement of the quantity of acres is of the essence of the contract, the purchaser, in case of a defi ciency, is entitled to a corresponding deduction from the purchase price. See Brady v. Powell, 217 Ark. 694, 233 S.W.2d 61 (1950). Here, the trial court found that this was a sale by the acre, and we are not prepared to say that this finding is clearly against the preponderance of the evidence. It is undisputed that the offer and acceptance agreement called for a purchase price of $1,200.00 an acre for 66.76 acres, and the total purchase price of $80,112.00 is the exact product of those two sums.

Appellant contends that appellee should not be heard to complain because of his own negligence in failing to notice the discrepancy since it was reflected in the survey report and the warranty deed. Appellee's failure to carefully inspect these documents is not necessarily fatal to his claim. See Meeks v. Borum, 240 Ark. 805, 402 S.W.2d 408 (1966). See also Jones v. Pfeiffer, 222 Ark. 754, 262 S.W.2d 455 (1953). Furthermore the appellant stated in a post-trial affidavit that he himself did not notice the discrepancy.

Affirmed.

Hart and Crabtree, JJ., agree.