(after stating the facts as above). [1] Plaintiff in error requested and the court refused to instruct the jury to return a verdict for the defendants. This is assigned as error, on the ground that no recovery of damages can be had for misrepresentations when they are not shown to have amounted to actual fraud, but, in the absence of such showing, the complaining party is limited to an action for rescission. We differ with plaintiff in error in this view of the law, because we regard it as immaterial whether or not the misrepresentations were willfully made where the land is sold by the acre, and it afterwards turns out that • there is a material shortage therein. In such event the law seems to be that, notwithstanding the fact feat there may have been a mutual mistake as to the quantity conveyed, even though the misrepresentations were innocently made, plaintiff would in equity be entitled to a proportionate abatement of the purchase price, See -Franco-Texan Land *838 Co. v. Simpson, 1 Tex. Civ. App. 600, 20 S. W. 953; Mitchell v. Zimmerman, 4 Tex. 75, 51 Am. Dec. 717; Walling v. Kinnard, 10 Tex. 508, 60 Am. Dec. 216; Moore v. Hazelwood, 67 Tex. 626, 4 S. W. 215; Wheeler v. Boyd, 69 Tex. 298, 6 S. W. 614; Smith v. Fly, 24 Tex. 351, 70 Am. Dec. 109; Wuest et al. v. Moehrig, 24 Tex. Civ. App. 124, 57 S. W. 864; Yates et al. v. Buttrill, 149 S. W. 347.

Chief Justice Wheeler, in Smith v. Ely, supra, says:

“It appears to be well settled that in the sale of land, where there has been misrepresentation as to the quantity, though innocently made, and the parties were under a mistake as to the quantity, and the deficiency is so great as to have been material, in the object of the purchase, affecting the essence of the contract, equity will grant relief. [Citing authorities.] And this, says Judge Story, would be so, although the land was described as so many acres ‘more or less.’ It would certainly be so where the land is sold by the acre, and the statement of the quantity of acres in the deed is not mere matter of description, but is of the essence of the contract.”

Again, in Wheeler v. Boyd, supra, Judge Gaines says:

“It is insisted also that, if the parties to the transaction are mutually mistaken as to the quantity of the land, defendant is entitled to * * * no abatement of the purchase money. The authorities are not in accord upon this question; but we think the decisions of this court recognize that, save in a case where the land is sold in gross and the quantity stated in the conveyance is qualified by the words ‘more or less,’ the purchaser will be relieved in equity, if the deficiency be great. The disparity being gross between the quantify believed by both parties to exist and that which is found actually, to exist, and both having been mutually mistaken, and the quantity being a material element of inducement in the sale, it is but equitable to let the purchaser retain his bargain and to relieve him from payment for that which he does not get”—citing O’Connell v. Duke, 29 Tex. 299, 94 Am. Dec. 282, and Smith v. Fly, Walling v. Kinnard, and Mitchell v. Zimmerman, supra.

In Franco-Texan Land. Co. v. Simpson, supra, it is held, as shown by the syllabus, that:

“Where land is sold by the acre, and the parties are under a mutual mistake as to the quantity conveyed, or where the vendee is moved to the purchase by the false representations of the vendor as to the amount, even though innocently made, and the deficiency is afterward discovered, equity will grant to the vendee a proportionate abatement of the purchase price.”

We therefore overrule this assignment, because the court did not err in refusing to give the charge requested. Eor a similar reason we, overrule the second assignment of error.

[2] Taylor in his cross-action against Brown sought to recover damages on account of certain misrepresentations as to the value of a machine, as well as other property which he had taken in part payment from Brown for the land in question. The court sustained plaintiff’s exceptions to said answer, and it was stricken out. This furnishes the basis for plaintiff in error’s third assignment of error, insisting by his proposition thereunder that Brown and Taylor were sued as being severally liable, and Brown was permitted, without exception on the part of plaintiff, to ask for judgment over against his codefendant Taylor, wherefore Taylor should have been permitted to plead in offset and in cross-action over against his eodefend-ant Brown. Brown’s cross-action against Taylor having been dismissed, the case stood as though Brown had never filed such plea. Therefore the proposition is based on a reason that did not, in fact, exist; hence was properly overruled. The statement under this assignment is deficient, in that it fails to set out Taylor’s cross-action, and the assignment might also have been disregarded for this reason.

[3] The fourth assignment complains that the court erred in permitting Brown to dismiss his cross-action against Taylor. In this there was no error, since Brown had the absolute right to dismiss his plea against Taylor at any time, and Taylor had no right to complain, since he could not be injured thereby.

[4] The court submitted a special issue as follows:

“Did the plaintiff, Hood Hill, in purchasing said land, make such purchase relying upon the representations of the defendant Taylor or his agent, Dalton, or the witness John D. Ereeman, or all of them, that there were 191 acres of land?”

And it refused to submit two special issues as follows:

“Did plaintiff, in purchasing said land, rely upon the representations of defendant Taylor; or did he rely upon the representations of Eree-man that there were 191 acres in said tract?”

There was no error in giving the first charge and refusing the other two, for the reason, we think, that if the plaintiff relied upon the representations of Taylor, Dalton, or Ereeman, or either or all of them, and such representations proved to be untrue, he would be entitled to recover, because the evidence in this case showed that Dalton was acting as the agent of Taylor in making the sale; that, when plaintiff declined to purchase the land until it was surveyed in order to ascertain whether it contained 191 acres, both Dalton and Taylor assured him that said tract did contain said number of acres, the latter stating that he had recently had it surveyed by Ereeman, and referred plaintiff to Ereeman in confirmation of the fact that it did contain 191 acres. Defendant Taylor was therefore bound by the answer of Freeman, who told Hill that he had surveyed the land, and that it contained said number of acres. See Holland v. Cabaness, 47 S. W. 379. For the purpose of such reference Ereeman, to all intents and purposes, became the agent in this respect of Taylor, and the latter was therefore bound by his answer. Hence we overrule the fifth, sixth¡ and seventh assignments of error.

[5] The eighth assignment urges that the court erred in excluding the proffered testi *839 mony of Hill that the shortage was in the less valuable part of the land. Upon an examination of the bill upon which this assignment is predicated we find that the only question asked Hill was:

“What is the character* of the soil of that land; what kind of soil is it?”

The question was objected to on the ground that it was immaterial and irrelevant, which objection was sustained. As this question related to the character of the soil of the entire tract, and not to any particular portion of it, the court did not err in excluding the testimony.

The remaining assignments have had our consideration, and are regarded without merit, and are therefore overruled.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.