An executor sold a field of wheat, supposing it to belong to him, but which proved afterwards to belong to the widow of the testator. The wheat was called 105 acres, but was sold subject to measurement. The purchaser gave his note for the wheat, estimating it at 105 *252acres. The widow, on being apprised of her rights, agreed with the executor, instead of asserting her claim to the wheat, to permit the sale to stand, and to accept the note of the purchaser in lieu of the wheat. She was not informed at the time of the sale, or at the time of taking the note, that the wheat was sold subject to measurement, but she had been told by the executor that the purchaser so claimed.

Upon measurement the wheat fell short, and the purchaser thereupon paid to the widow the amount of the note, deducting for the deficiency; she, however, insisted upon the payment of the whole, and brought this suit to recover the balance.

.Held) that she could not recover; that by consenting to adopt the sale she became bound by its terms; that, as against the executor, the purchaser had a clear right to deduct for the deficiency in the quantity of wheat, on the ground of a failure pro tanto of the consideration of the note; and that he could not be deprived of this right by the transfer of the note to the plaintiff.

(S. C., 11 Barb. 147.)