This section contains the nature of the case and procedural background.

Waters (P) purchased a tract of land from Hoell (D). P negotiated the terms with D’s agent, Herbert. In September 1978, Herbert and P viewed the property, and the boundaries were described to P. The boundaries of the property conveyed deviated from that description as to exclude at least 125 acres. Herbert testified for P and admitted that he had represented to P in a very general manner that the southern boundary of the property was canal no 10, the eastern boundary was the Broadcreek Outfall canal, and the northern boundary was canal no 9. Prior to making these representations, Herbert had been given a freehand sketch of the property by D. The sketch correctly depicted the boundaries of the property conveyed. Herbert testified that he did not tell P that he knew where all of the boundaries were and in fact, he admitted he did not know where they were. P sued D for mutual mistake. The court granted D’s motion for a directed verdict. P appealed.

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