98 Ga. 388 | Ga. | 1896
The Perkins Manufacturing Company, in 1887, purchased from Williams the saw-mill timber on a certain tract of land described in the deed as “containing 672 acres more or less,” for which it paid him $1,300. It subsequently ascertained that there was a deficiency in the number of acres, and brought suit against Williams, alleging that “the discrepancy is so glaring as of itself to suggest fraud and deception; that the warranty in the deed was intended to
1. The words “more or less” will cover any deficiency' not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud. (Code, §2642.) Questions of fraud or of what amounts to fraud in a particular case are generally for determination by the jury. Each case presents its own peculiar facts. The deficiency in one case is greater than in another. The purpose for which the land is purchased is very different in one case from what it is in another. If a man should purchase land for a mill-site, the water-power would be the principal thing he would have in view; he would not care so much for the number of aeres as he would for the mill-site, and would therefore pay less attention to the representations of the vendor as to the number of acres than he would if he were buying merely for the purpose of cultivation. The suspicion of wilful deception or of mistake amounting to fraud “could not arise or be justified unless some suggestion of fraud or gross mistake would occur to the mind as probable in consequence of the magnitude of the deficiency, in view of the object of the purchase and all the attending circumstances;” and whether, in a given instance, such a suspicion is justified, is, in ordinary cases, as was said by Bleckley, C. J., in Estes v. Odom, 91 Ga. 605, “a question of fact to be
2. Tbe deed made by Williams to tbe plaintiff conveyed to tbe grantee and its heirs and assigns, all tbe saw-mill timber on tbe tract described therein, except certain specified trees, with tbe privilege of boxing tbe trees for turpentine purposes for six years and with “full privileges of right of way for railroad, tramroads and wagon roads across said tract of land during tbe time of this saw-mill operation in that section.” Tbe trees excepted were one hundred to be marked by Williams, and. all trees “measuring under fourteen inches at usual stump height,” it being stipulated tbat no sucb trees should be cut or boxed. Williams in bis answer to the action pleaded, that the plaintiff had violated this stipulation, and had cut and boxed the hundred trees, be had reserved, thereby damaging him $500, and bad boxed all tbe trees on the land measuring-under fourteen inches at usual stump height, thereby damaging him $1,000. It appears from tbe evidence tbat the plaintiff bad sold to Blue & Co. tbe privilege of boxing tbe timber on the tract, except trees measuring under fourteen inches at usual stump height; and tbat the boxing of trees under tbat size,
J udgment reversed.