The opinion of the Court was delivered by

The defendant, in September 1814, contracted, by article of agreement, to buy of his father, at $26.67 per acre, a tract of land adjoining lands of Deardorff and others, containing, according to a late survey, 32 acres and 61 perches, and was allowed to retain the sum of $266.67, the hand-money, without interest, till a final settlement should be made of his father’s estate, the residue to be paid in gales of $20 on the 1st of April yearly. The father agreed to make a clear patent deed on his son’s giving obligations for the yearly gales. Seventeen months afterwards •the defendant took a deed, and gave his bonds, and when sued on *444one of them in 1839, sets up in bar that on a measurement made in 1838, it turned out that there were but 25 acres and 94 perches.

Even if the question rested merely on the article, it might well be contended that the defendant having agreed to purchase according to a recent survey, must be considered as contracting to buy according to that survey, in the same manner as if he had contracted to buy according to certain courses and distances, and the land turned out to contain less. It would be impossible to say, without evidence, what was the basis on which the parties agreed to consider it as 32 acres and allowance, whether it was by mistake or fraud, or whether the facts were known to them both at the time of contracting; nor can we aver that the contract would have been made as it is, containing terms very favourable to the defendant as to payments, on any other basis than the one agreed on. It is possible the inequality might in some cases be so monstrous and glaring as to be of itself conclusive to show mistake or imposition: but the difference here will not warrant that, and there is nothing to show the existence of actual mistake or fraud. It would rest on nothing but conjecture, and that in opposition to the express agreement of the parties to sell and buy according to a recent survey.

In Bailey v. Snyder, (13 Serg. & Rawle 163) the court considered it a sale by the acre, because no draught or survey was referred to which, it might be supposed, the parties intended to adopt in order to avoid further expense. But where the sale is according to a late survey, it falls within the class of cases in which it is a sale by the quantity in gross and not by the acre.

It is to be observed further, that the contract is not now to be judged of simply by the article of agreement. That has been carried into execution by the acceptance of a deed, and the sealing and delivery of bonds for the purchase money, which, even where the sale is to be at so much per acre, closes the question on the article, merges it in the conveyance and precludes the parties from afterwards claiming, either on the one hand an allowance for a deficiency in the land, or, on the other, payment for a surplus. Smith v. Evans, (6 Binn. 102); Bailey v. Snyder, (13 Serg. & Rawle 162).

Judgment affirmed.