аfter stating the case: The findings of fact by a referee, when there is evidence tending to support them, affirmed by the Judge on the bearing, are conclusive upon this Court and must be made the basis of the judgment. Harris et al. v. Smith, at this term, reported in current S. E., vol. 57, No. 2.
Tbe referee in tbe case before us reports bis finding of fact No. 12 as follows:
“Twelfth. I find as a fact that in some conversations between the plaintiffs and the defendant’s agent and manаger that John Erey told the defendant’s agent that be felt satisfied that there was frоm 250,000 to 300,000 feet of good timber on the boundary embraced by the Breedlove lands; that the declaration was made to apply to the entire Lick Log Crеek boundary; that it was given as a mere guess or opinion, based upon what thе plaintiff bad seen himself and bad been told by John Breedlove, but that it was not intended as a 'willful or gross misrepresentation of the quantity of timber on the boundary; that thе parties were dealing with each other at arm’s length, on practicаlly equal terms; that it was *761 easily within the power of the defendant to have had thе timber on the boundary estimated or measured; that he had been upon and examined part of the timber and had equally as good opportunity, in the exercise of reasonable diligence, to have examined the whole boundary; that the negotiations for the sale were pending for more than two months before the -assignment of the contract; that the parties were upоn the identical premises on which the timber was located at the' time of сlosing the contract; that the defendant had one or more oppоrtunities to rescind the contract before it was finally closed, which it refused to do; that the contract showed and.the defendant knew that he was getting the timbеr under the contracts by the 1,000 feet, at a certain fixed price; that the рrice of $100 paid was for the benefit of the contracts and not for the timber; that there was no guaranty or warranty by the plaintiffs that the boundary contained any particular quantity of timber, and that there was no complaint of any shоrtage or fraudulent misrepresentations by the plain-' tiffs in making the sale until the plаintiffs brought this action to recover the amount dire on the cattle on aсcount of the funds in the defendant’s hands by Breedlove and Grrooms for that purpоse. I therefore find as a fact that the sale of the contracts to the defendant by the plaintiffs was not brought about by false and fraudulent representаtions that were calculated to deceive and mislead a prudent business man.”
There was evidence in the record in support of this action by the rеferee, and, the same having been affirmed by the Judge, the conclusion neсessarily follows that defendant’s counter-claim has not been sustained.
We are referred by counsel to the decision in
May v.
Loomis,
In the сase before us the finding is that the representations were mere matters of opinion, given and received as such, and when the parties were at аrm’s length, each having equal opportunities of informing himself; and the cause сomes rather witbin the principle so clearly announced by
Mr. Justice Brown
in
Cash Co. v.
Townsend,
As heretofore stated, tbe finding of fact No. 12, which we have no power to disturb, determines tbe question of tbe counter-claim against the defendant, and tbe judgment below is affirmed.
Affirmed.