Another large group of cases should be noticed in connection with collateral mistake. Where a conveyance of land is for a gross price, though the land was supposed by the parties to contain a certain area, and this has been so stated, relief has generally been denied.50 But if the difference is great and the court injured by the mistake.52 Rescission of the whole contract will not generally be allowed.52
Vogt, 182 N. Y. App. D. 736, 169 N. Y. S. 1049.
46 Sections 7, 8. See supra, Sec. 1560.
47 See infra, Sec. 1578.
49 Cases may be added where it is more open to argument whether the mistake was collateral or went to the identity of the thing. One who bought land was allowed to recover his payment because a house supposed by both parties to be wholly on the granted premises, was partly on adjoining land. McKay v. Coleman, 85 Mich. 60, 48 N. W. 203. A contract for the sale of a life insurance policy was held voidable because both parties supposed that the insured was living at the time, whereas he was dead. Scott v. Coulson,
 2 Ch. 249; Riegal v. American life Ins. Co., 140 Pa. 193, 21 Atl. 392, 11 L. R. A. 857, 23 Am. St. Rep. 225. See also Fink v. Smith, 170 Pa. 124, 32 Atl. 566, 50 Am. St. Rep. 750.
"Costello v. Sykes, (Minn. 1919), 172 N. W. 907, Hallam, J., diss. See also Kennedy v. Panama etc. Mail Co., L. R. 2 Q. B. 580; Otis v. Cullum, 92 U. S. 447, 23 L. Ed. 496. Cf. Emmer-son's Case, L. R. 1 Ch. App. 433.
50 Capshaw v. Fennell, 12 Ala. 780; Frederick v. Youngblood, 19 Ala. 680, 54 Am. Dec. 209; Wright v. Wright, 34 Ala. 194; Wilson v. Browning, 61 Ala. 80; Young v. Craig, 2 Bibb, 270; Harrison v. Talbot, 2 Dana, 258; Innis v. McCrummin, 12 Mart. (La.) 425, is satisfied that the price was in fact influenced by the supposed area, relief has been allowed.61 Obviously where land is contracted to be sold at a certain price an acre or a foot and settlement is made on the assumption that the tract contains a certain number of acres, if this assumption proves erroneous recovery may be had for the deficiency or excess by the party
13 Am. Dec. 379; Gormley v. Oakey, 7 La. 452; Stull v. Hurtt, 9 Gill, 446; Smallwood v. Hatton, 4 Md. Ch. 95, 100; Stebbiius v. Eddy, 4 Mason, 414; Noble v. Googins, 99 Mass. 231; Frenche v. Chancellor, 51 N. J. Eq. 624, 27 Atl. 140, 40 Am. St. Rep. 548; Marvin v. Bennett, 8 Paige, 312; Morris Canal Co. v. Emmett, 9 Paige, 168; Ketchum v. Stout, 20 Oh. 453; Belknap v. Sealey, 14 N. Y. 143, 67 Am. Dec. 120; Stevens v. McKnight, 40 Ohio St. 341; Rodgers v. Olshoffsky, 110 Pa. 147, 2 Atl. 44; Rich v. Scales, 116 Tenn. 57, 91 S. W. 50; Smith v. Fly, 24 Tex. 345, 76 Am. Dec. 109; CConnell v. Duke, 29 Tex. 299, 94 Am. Dec. 282; Darling v. Osborne, 51 Vt. 148; Yost v. Mallicote's Ad'm, 77 Va. 610. See also Painter v. Wilson, 197 Pa. 434, 47 Atl. 349; Smith v. Evans, 6 Binn. 102; Kreiter v. Bomber-ger, 82 Pa. 59, 22 Am. Rep. 750.
61 Thomas v. Perry, 1 Pet. C. C. 49; Moaher v. Lack (Cal. App.), 181 Pac. 813; Gardner v. Kiburg (la.), 168 N. W. 814; Biggs v. Lexington etc. R., 79 Ky. 470, 474; Miller v. Craig, 83 Ky. 623, 4 Am. St. Rep. 179; Nave v. Price, 108 Ky. 105, 55 S. W. 882; Newton v. Tolles, 66 N. H. 136, 19 Atl. 1092, 9 L. R. A. 50, 49 Am. St. Rep. 593; Couse v. Boyles, 4 N. J. Eq. (3 Green Ch.) 212, 38 Am. Dec. 514; Weart v. Rose, 16 N. J. Eq. 290; Straus v. Norris, 78 N. J. Eq. 488, 79 Atl. 611; Rich v. Scales, 116 Tenn. 57, 91 S. W. 50; Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371; Ladd v. Pleasants, 39 Tex. 415; Yost v. Mallicote's Adm., 77 Va. 610; Wardell v.
Birdsong, 115 Va. 294, 78 S. E. 564. See also Coppage v. Equitable Ac. Trust Co. (Del. Ch.), 102 Atl. 788. But see Jolliffe v. Baker, 11 Q. B. D. 254; Palmer v. Johnson, 13 Q. B. D. 351.
In McMahan v. Terkhorn (Ind. App.), 116 N. E. 327, 329, the court quoted with approval a classification in Harrison v. Talbot, 2 Dana, 258: "Sales in gross may be subdivided into various subordinate classifications: First, sales strictly and essentially by the tract, without reference, in the negotiation or in the consideration, to any estimated or designated quantity of acres; second, sales of 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 be reasonably 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 under-stood by the parties."