                               No. 53-560 b
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1985



JACK HUGO PARCEL,
                Plaintiff and Appellant,
     -vs-
MERLIN W. MYERS, et al. ,
                Defendants and Respondents.




APPEAL FROM:    District Court of the Tenth Judicial District,
                In and for the County of Fergus,
                The Honorable R D. McPhillips, Judge presiding.
                               .

COUNSEL OF RECORD:

      For Appellant:
                Mark L. Stermitz; Law Office of John R. Christensen,
                Stanford, Montana


      For Respondents:
                William E. Berger; Wilkins & Berger, Lewistown,
                Montana
                Hauge, Ober & Brown, Havre, Montana



                                Submitted on Briefs:     Nov. 29, 1984
                                              Decided:   March 20, 1985
Mr. Justice Frank B. Morrison, Jr., delivered the opinion of
the Court.
     Myers, respondent/cross appellant, appeals from that
portion of the District Court judgment which reduced the
purchase price of the contract for deed in favor of Parcel,
appellant.
     Parcel brought an action against Myers for reformation
of the contract for deed containing a defective legal de-
scription.   Parcel's action against the surveyors responsible
for the erroneous survey was dismissed with prejudice due to
Parcel's failure to respond to surveyors' motion to dismiss.
Finding no liability of defendants to plaintiffs, the trial
court reformed the contract by correcting the legal descrip-
tion and reducing the purchase price.     Parcel's a.ppea1 from
denial of fees and costs is addressed in our first opinion
published in Parcel v. Myers (Mont. 1984),       P.2d     I   41
St.Rep.   2426.   This supplemental decision discusses Myers'
cross appeal.
     Jack Parcel purchased approximately eleven acres from
Merlin and Marcia Myers in 1979.        The contract for deed
required Myers to have a survey of the subject property
prepared and a certificate of survey recorded.      Parcel had
the requisite survey prior to closing when the contract for
deed was executed.
     Error in the legal description of the real estate re-
sulted from the surveyor using the edge of the adjacent
county road as the starting point of the description inst.ead
of the center line.      This mistake shifted the otherwise
correct description of the land thirty feet to the north.
Pursuant to this defective certificate of survey, the Myers
contracted to convey a strip of land, thirty feet wide and
approximately 700 feet long, which belonged to their neighbor
to the north.
        Parcel brought an action against Myers to have the legal
description corrected and the contract price reduced commen-
surate with that thirty foot wide strip of land which the
Myers        did   not   have   merchantable   title   to convey.   The
district court judgment reformed the contract to correctly
describe the land conveyed and reduced the total purchase
price in the amount of $1,500.
     The singular issue in this cross-appeal is:
        1.    Whether the sale of the property was "in gross"
barring appellant's entitlement to reformation of the con-
tract for deed by reduction of purchase price.
    At the outset of our discussion, we mention that appel-
lant does not address this issue in either the original brief
or a reply brief.          Technically, the matter could be resolved
by default in favor of respondent/cross appellant.
    Myers contends that the real estate transaction was a
sale in gross which does not entitle the purchaser to any
reduction in the total purchase price.            We agree.
    The trial court's findings and conclusions on this issue
are internally inconsistent and warrant reversal.              Although
the specific term "in gross" is not used. in the language of
its decision, the trial judge clearly described a bulk real
estate transaction between Parcel and Myers in its findings.
        In Finding No. V the trial court found:
     "That Defendants and/or their agent represented to
     Plaintiff the property to be conveyed was wj-thin
     the existing fences, excluding the County Road
     right-of-way."
Followed by Finding No. VI which reads:
     "That Plaintiff reasonably entitled to, and did,
     rely upon the representations of said boundaries."
     The trial court's most convincing description of a real
estate transaction "in gross" is found in Finding No. XI11
which provides:
     "Plaintiff looked at the property with Mr. Homer
     Huges at least three (3) times.   They walked the
     property.   The property is fenced on its borders
     and Mr. Huges explained to Plaintiff, 'you are
     looking at what you get.' There was no conversa-
     tion about price per acre.      Negotiations were
     primarily about the total purchase price and
     buildings."
     After this unambiguous description of a bulk sale of
real estate, the trial court contradicted well-established
principles of law and ordered a $1,500 reduction in the
original contract purchase price.
     The legal authority is unequivocal on this subject.   77
Am.Jur.2d, Vendor and Purchaser, S 90 provides:
     "A contract of sale by the acre is one wherein a
     specified quantity is material.       Under such a
     contract the purchaser does not take the risk of
     any deficiency and the vendor does not take the
     risk of any excess.     The contract of sale by the
     tract or in gross is one wherein boundaries are
     specified, but quantity is not specified, or if
     specified, the existence of the exact quantity
     specified is not material; each party takes the
     risk of the a.ctua1 quantity varying to some extent
     from wha-t he expects it to be."
     We adopt the rationale of the Arizona Supreme Court
which, citing the above legal authority, held:


     "Therein, the rule was stated that on a sa.le of
     land by its legal description, or other specific
     description by which its boundaries are made cer-
     tain, for a sum in gross, the bounda.ries will
     control in case of a discrepancy as to quantity,
     and that such a sale in gross affords no remedy to
     the grantor or the grantee for an excess or defi-
     ciency unless such excess is so great as to raise a
     presumption of fraud." Carrel1 v. Lux (1966), 101
     Ariz. 430, 420 P.2d 564, 572.
     The trial judge found no evidence of cross appellants'
intent to defraud the appellant.    Th.e opinion does not ex-
plain the reformation of the contract purchase price as an
exercise of the trial court's equitable power.
     For the reasons herein discussed, w e reverse the Dis-

trict Court's   decision reducing the original purchase price
by $1,500.




We concur:
