The opinion of the Court was delivered by

This case is distinguishable from the class of cases that have received so much consideration in the Courts of this State on the question of the right of a purchaser to rescind, wholly or in part, the contract of purchase, when there has been a material failure in value, as it regards .the quanity or quality of the property sold, as in the present case the bond for the purchase money of the land sold contained a clause designed to cover the very case made by the defendants. The clause in question is as follows: “this bond, subject to an apportionment, if, on a survey, there proves a deficiency of the land for purchase of which this bond is given.”

It is clear that a Court of Equity could take jurisdiction of the specific enforcement of this contract to the extent of making such apportionment on just and equitable principles. The defendant’s answer was such as to entitle him to claim the interposition of the equitable powers of the Court, where the most complete relief would result from the application of .the principles and rules of equity.

The question then remains to be considered whether the rule of *504apportionment submitted by the Court to the jury was conformable to the rules of equity. It clearly was not.

The contract of sale was for a tract of land of an assumed number of acres, valued at a gross sum. The required number of acres failed. The tract consisted, in part, of land fitted for cultivation, and, in part, of land unfit for that use. The tract was sold as a “ plantation,” and, of course, fitness for culture was a chief element of value. The rule of apportionment, as laid down by. the Court, omitted the consideration of the two descriptions of land embraced in this tract. It submitted to the jury a mere arithmetical calculation, based on the number of acres and the price called for by the deed, and required the reduction of the contract price in the ratio of the diminution of quantity, according to actual measurement, without regard to the character of the land as to which the failure had occurred, whether of the class of the most valuable or of the least valuable land.

No illustration is required to make clear the practical defect of the rule applied by the Court. It certainly is not justified by the terms of the contract which the Court was called upon to enforce. The object and intent of that contract was to conform the sum paid to the actual.value of the property sold, taking for the elements of that value the gross price agreed upon, the • total quantity of land in acres assumed at the making of the contract, and the relative quantities of the two kinds of land assumed at that time.

A new trial should be ordered.