Coke, J.
The question in this case is, whether the appellee, Duke, who had sold the appellant, O’Connell, a tract of land containing in its boundaries a surplus, can recover such surplus, or compensation for it in money? It is unnecessary to consider the various assignments of error in detail, because this one question embraces substantially all the points made in them.
“ It is well settled, as a general rule, that where parties have contracted in ignorance or mistake of a fact material and essential in the inducement to and formation of the contract, which mistake injuriously affects the rights and interests of one of the parties under the contract, a court of equity will grant relief against the consequences of the mistake. This general principle applies not only to cases where there has been a studied suppression or concealment of material facts by one of the parties which would amount to a fraud, but also to many cases of innocent ignorance and mistake on both sides.” (1 Story Eq. Jur., § 141; Hill v. Buckley, 17 Ves., 394.)
In cases where relief is granted, it is only where the mistake is made out clearly and satisfactorily, and this upon the ground, that the contract, as it is, ought to be treated as a full and correct expression of the intention of the parties, until the contrary is established with reasonable certainty. [310]*310When it is so established, and the right of the injured party is not impaired by a failure on his part to use proper precaution and diligence, the relief is usually granted. Contracts for the sale of land are not an exception to this general rule, but are as much amenable to its principles as other contracts are.
As was said by Chief Justice Boyle, delivering the opinion of the supreme court of Kentucky, in Young v. Craig, 2 Bibb, 270: “In contracts of this character, the same good faith is required, and the same responsibility attaches to its violation, which law and reason prescribe in every description of contract. If, through fraud or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with or the purchaser to receive, the injured party would be entitled to relief in like manner as he would be for an injury produced by a similar cause in a contract of any other species.”
The apparent conflict and discrepancies in the adjudicated cases arise not from a denial of or a failure to recognize this general principle, but from the difficulty of its practical application in particular cases. It has long since been settled, that the relative extent of the surplus or deficit cannot furnish, per se, an infallible criterion in each case for its determination, but that each case must be considered with reference not only to that, but its other peculiar circumstances. The conduct of the parties, the value, extent, and locality of the land, the date of the contract, the price, and other nameless circumstances, are always important, and generally decisive. In other words, each case must depend upon its own peculiar circumstances and surroundings.
It is evident that, in a sale per acre, much less variation from the quantity intended to be conveyed would be indicative of a mistake than where a specific tract is sold by metes and bounds, the quantity of acres being mentioned merely, as matter of description. But the impracticability [311]*311of ascertaining the exact amount in a tract with precision, the different results that are produced by different surveyors on account of roughness of ground, variation of instruments, &c., will render a small surplus, or deficit, however exactly the parties may have intended to be confined to a specific quantity, ineffectual as a basis for relief; because parties are presumed to have contracted with reference to such ordinary contingencies, and to have accepted the hazard of gain or loss. On the other hand, of where a surplus is evidently contemplated by the terms of the contract, but it turns out that the surplus exceeds considerably or greatly what the proof shows was contemplated by the parties, and such excess, if known, would have materially influenced the contract, which is to be judged of from the proof, this is a mistake against which relief will ordinarily be granted, unless the injured party has been guilty of culpable negligence. In these cases, the inquiry is first to be made whether the parties have made a mistaken estimate of the quantity which materially influenced the price, and then whether, notwithstanding such mistaken estimate, they have waived the right to compensation by an acceptance of the hazard of gain or loss by the estimate. Whenever the excess or deficiency is palpable and unreasonable, and such as is shown not to have' been in the contemplation of the parties, relief will be granted, unless the proof shows that the hazard of gain or loss, whatever it might be, was accepted and entered into the contract. (Young v. Craig, 2 Bibb, 270; Grundy’s Heirs v. Grundy, 12 B. Monr., 271.)
Contracts for the sale of land have been considered with reference to the question under discussion to be of two descriptions: first, where the sale is of a specific quantity, which is usually denominated a sale by the acre; second, where thé sale is of a specific tract, by name or description, each party risking the quantity. This is called a sale in gross. In the well-considered case of Harrison v. [312]*312Talbot, 2 Dana, 258, the supreme court of Kentucky, after an able review of the authorities, and an elaborate discussion of the principles involved, reached the conclusion that, “ Sales in gross may be divided into various subordinate classifications: first, sales strictly and essentially by the tract, without reference, in the negotiation or in the consideration, to any designated or estimated quantity of acres; second, sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances, or in such a manner, as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how much soever it might exceed or fall short of that which was mentioned in the contract; third, sales in which it is evident, from extraneous circumstances of locality, value, price, time, and the conduct and conversations of the parties, that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might reasonably be calculated on as within the range of ordinary contingency; fourth, sales which, though technically deemed and denominated sales in gross, are in fact sales by the acre, and so understood by the parties. Contracts belonging to either of the two first-mentioned classes, whether executed or executory, should not be modified by the chancellor, when there has been no fraud. But in sales of either of the latter kinds, an unreasonable surplus or deficit may entitle the injured party to equitable relief, unless he has, by his conduct, waived or forfeited his equity.”
The court of appeals of Virginia have, in numerous cases, held substantially the same doctrine. (Blessing’s Administrators v. Beatty, 1 Rob., 302-303; Quesnel v. Woodlief, 6 Call., 218; Joliffe v. Hile, 1 Call., 301; Duvals v. Ross, 2 Munf., 290.) This doctrine is so well supported on principle, so thoroughly imbued with a spirit of broad [313]
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Coke, J.
The question in this case is, whether the appellee, Duke, who had sold the appellant, O’Connell, a tract of land containing in its boundaries a surplus, can recover such surplus, or compensation for it in money? It is unnecessary to consider the various assignments of error in detail, because this one question embraces substantially all the points made in them.
“ It is well settled, as a general rule, that where parties have contracted in ignorance or mistake of a fact material and essential in the inducement to and formation of the contract, which mistake injuriously affects the rights and interests of one of the parties under the contract, a court of equity will grant relief against the consequences of the mistake. This general principle applies not only to cases where there has been a studied suppression or concealment of material facts by one of the parties which would amount to a fraud, but also to many cases of innocent ignorance and mistake on both sides.” (1 Story Eq. Jur., § 141; Hill v. Buckley, 17 Ves., 394.)
In cases where relief is granted, it is only where the mistake is made out clearly and satisfactorily, and this upon the ground, that the contract, as it is, ought to be treated as a full and correct expression of the intention of the parties, until the contrary is established with reasonable certainty. [310]*310When it is so established, and the right of the injured party is not impaired by a failure on his part to use proper precaution and diligence, the relief is usually granted. Contracts for the sale of land are not an exception to this general rule, but are as much amenable to its principles as other contracts are.
As was said by Chief Justice Boyle, delivering the opinion of the supreme court of Kentucky, in Young v. Craig, 2 Bibb, 270: “In contracts of this character, the same good faith is required, and the same responsibility attaches to its violation, which law and reason prescribe in every description of contract. If, through fraud or gross and palpable mistake, more or less land should be conveyed than was in the contemplation of the seller to part with or the purchaser to receive, the injured party would be entitled to relief in like manner as he would be for an injury produced by a similar cause in a contract of any other species.”
The apparent conflict and discrepancies in the adjudicated cases arise not from a denial of or a failure to recognize this general principle, but from the difficulty of its practical application in particular cases. It has long since been settled, that the relative extent of the surplus or deficit cannot furnish, per se, an infallible criterion in each case for its determination, but that each case must be considered with reference not only to that, but its other peculiar circumstances. The conduct of the parties, the value, extent, and locality of the land, the date of the contract, the price, and other nameless circumstances, are always important, and generally decisive. In other words, each case must depend upon its own peculiar circumstances and surroundings.
It is evident that, in a sale per acre, much less variation from the quantity intended to be conveyed would be indicative of a mistake than where a specific tract is sold by metes and bounds, the quantity of acres being mentioned merely, as matter of description. But the impracticability [311]*311of ascertaining the exact amount in a tract with precision, the different results that are produced by different surveyors on account of roughness of ground, variation of instruments, &c., will render a small surplus, or deficit, however exactly the parties may have intended to be confined to a specific quantity, ineffectual as a basis for relief; because parties are presumed to have contracted with reference to such ordinary contingencies, and to have accepted the hazard of gain or loss. On the other hand, of where a surplus is evidently contemplated by the terms of the contract, but it turns out that the surplus exceeds considerably or greatly what the proof shows was contemplated by the parties, and such excess, if known, would have materially influenced the contract, which is to be judged of from the proof, this is a mistake against which relief will ordinarily be granted, unless the injured party has been guilty of culpable negligence. In these cases, the inquiry is first to be made whether the parties have made a mistaken estimate of the quantity which materially influenced the price, and then whether, notwithstanding such mistaken estimate, they have waived the right to compensation by an acceptance of the hazard of gain or loss by the estimate. Whenever the excess or deficiency is palpable and unreasonable, and such as is shown not to have' been in the contemplation of the parties, relief will be granted, unless the proof shows that the hazard of gain or loss, whatever it might be, was accepted and entered into the contract. (Young v. Craig, 2 Bibb, 270; Grundy’s Heirs v. Grundy, 12 B. Monr., 271.)
Contracts for the sale of land have been considered with reference to the question under discussion to be of two descriptions: first, where the sale is of a specific quantity, which is usually denominated a sale by the acre; second, where thé sale is of a specific tract, by name or description, each party risking the quantity. This is called a sale in gross. In the well-considered case of Harrison v. [312]*312Talbot, 2 Dana, 258, the supreme court of Kentucky, after an able review of the authorities, and an elaborate discussion of the principles involved, reached the conclusion that, “ Sales in gross may be divided into various subordinate classifications: first, sales strictly and essentially by the tract, without reference, in the negotiation or in the consideration, to any designated or estimated quantity of acres; second, sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances, or in such a manner, as to show that the parties intended to risk the contingency of quantity, whatever it might be, or how much soever it might exceed or fall short of that which was mentioned in the contract; third, sales in which it is evident, from extraneous circumstances of locality, value, price, time, and the conduct and conversations of the parties, that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might reasonably be calculated on as within the range of ordinary contingency; fourth, sales which, though technically deemed and denominated sales in gross, are in fact sales by the acre, and so understood by the parties. Contracts belonging to either of the two first-mentioned classes, whether executed or executory, should not be modified by the chancellor, when there has been no fraud. But in sales of either of the latter kinds, an unreasonable surplus or deficit may entitle the injured party to equitable relief, unless he has, by his conduct, waived or forfeited his equity.”
The court of appeals of Virginia have, in numerous cases, held substantially the same doctrine. (Blessing’s Administrators v. Beatty, 1 Rob., 302-303; Quesnel v. Woodlief, 6 Call., 218; Joliffe v. Hile, 1 Call., 301; Duvals v. Ross, 2 Munf., 290.) This doctrine is so well supported on principle, so thoroughly imbued with a spirit of broad [313]*313and comprehensive equity, and so strongly characterized by practical wisdom, in its adaptation to the exigencies of our society, where transactions to which it is applicable are of daily occurrence, that it commends itself to our unqualified approbation.
An application of these principles to the facts of this case, as found by the jury, in response to the special issues submitted to them by the court, is decisive of the correctness of the judgment. The deed executed by Duke to O’Connell, on the 3d of February, 1858, conveyed a tract of land, described by metes and bounds, estimated to contain “ seven hundred and fifty acres, or more.” In the deed it is said to be all of a tract of “ eight hundred and fifty acres, or more,” except one hundred acres previously sold off. During the negotiation between the parties, Duke repeatedly said, he supposed there would be an excess of twenty or twenty-four acres, but that it was a small matter, which would do him no good, and that he was willing for O’Connell to have it. The surplus contemplated by Duke when he made the sale was twenty-four acres. This accounts for the language of the deed, “seven hundred and fifty acres, or more.” O’Connell took no hazard, but bound Duke in the deed to refund the purchase-money in proportion to the deficit, should there be one. He evidently feared a deficit. Hot having taken any risk, it is only by virtue of clear and satisfactory proof that Duke, by the contract, agreed to hazard any amount of excess that might be in the tract that O’Connell would be entitled to hold such an unreasonable and gross excess as three hundred and forty-eight acres in a sale of seven hundred and fifty. (Smith v. Fly, 24 Tex., 350.)
The principle on which the rule of law is founded, that gives to the purchaser the excess in ordinary cases, is his liability to loss in case of a deficit. His hazard of a loss is the consideration he pays for the excess. If that consideration be wanting, he must rely on his express contract, if [314]*314he would claim an excess. The deed in this case shows that the contract contemplated that O’Connell should have an excess; but, if it had been for seven hundred and fifty acres, “more or less,” which would have thrown on him the risk of loss from a deficit, it is very clear, on principle and authority, that he would not be entitled to a gross and unreasonable excess, not contemplated when the contract was made; much less can he claim it, when he took no risk of a deficit. (Smith v. Fly, 24 Tex., 350; 1 Sug. on Vend., ch. 7, § 3; 4 Kent’s Com., 457; 1 Story’s Eq. Jur., § 141.)
The deed itself, independent of any extrinsic evidence, repels any presumption that any such surplus may have been contemplated or deemed probable. The “seven hundred and fifty acres or more” conveyed was all of a tract of “eight hundred and fifty acres or more,” except one hundred acres sold off previously. This, in connection with the covenant contained in it, to refund the purchase-money in proportion to the deficit, if there should be one, shows that it was considered doubtful whether there were seven hundred and fifty acres, and that at most the surplus, if any, would be insignificant.
All this testimony was before the jury, and in response to the issue submitted to them on this subject they answered, as follows:
“ We find there to be three hundred and forty-eight acres, over and above the number anticipated by the parties.”
We are of opinion that their finding on this, as on the other issues, is abundantly supported by the testimony. The charge of the cour’t is substantially correct. The special issues submitted to the jury cover fully the material issues made by the pleadings. The law is correctly applied to the facts found by the jury, in the rendition of the judgment, in which we see no error, except where title is decreed to the appellee, Duke, in these words: “ To the said plaintiff, Thomas M. Duke, a share amounting to parts thereof.” Which is evidently a clerical error, and [315]*315should have been T3T4383 parts instead. This error will be corrected here.
The second deed from Duke to O’Connell, made in November, 1858, has not been considered, because it is believed that the rights of the parties are fully defined and governed by the first deed, which is evidence of an executed, and not an executory, contract. Duke, by this second deed, did not waive his equity, because, as the jury very correctly found, he was still ignorant of the mistake in the quantity of land in the tract. If O’Connell’s rights had depended on this deed, it is believed that the result must have been the same, on account of his' fraudulent concealment of the material fact of the large excess in the tract.
The cases of Simonton v. Lawrence, 13 Tex., [223,] and Hatch v. Garza, 22 Tex., [76,] referred to by counsel for appellant, are not authorities on the questions in this case, because their decision was neither necessary nor proper in either of those cases. The dicta of the court in those cases are, however, entirely consistent with our opinion in this. The case of Dalton v. Rust, 22 Tex., [133,] also referred to, is evidently decided on the acts of Bust and wife, who are held to be estopped from setting up any rights in the land, they having, by petition to the county court, caused the tract to be sold as the property of Lindsay’s estate, and received the purchase-money, at which sale Mrs. Dalton became the purchaser. The very general remarks in the opinion of the court in that case, on the question of the right of a party to be relieved against a mistake as to the number of acres contained in a tract of land sold by metes and bounds, must therefore be considered with much allowance, when it is manifest that the point did not receive the particular attention of the court, and the decision of the case was rested on another and different ground. We do not regard the opinion in that case as assuming to decide the question under discussion here. We are fortified in this [316]*316conclusion by the opinion of the court in the more recent case of Smith v. Fly, 24 Tex., 350, where the question was directly involved, which very plainly indicates the correctness of the views we have expressed.
Subject to the correction of the error adverted to, the judgment of the court below is in all things affirmed.
Decree entered accordingly.