23 Md. 1 | Md. | 1865
delivered the opinion of this Court:
The appellants seek an abatement of the purchase money for certain property advertised and described as “that valuable cotton factory known as the Phoenix Factory, with 18T acres of land, more or less, attached thereto,” with this-further representation, viz., “the machinery is in good running order, and now in use,” and sold at public vendue by the appellee. They allege, that relying upon the truth and accuracy of the description, and representation of the lands and machinery, they were induced to become the purchasers for a large sum, when, in fact, upon survey, the lands are found to contain only one hundred and thirty-four acres, and the machinery was found exceedingly imperfect and in bad condition, requiring large outlays for repairs, for which they claim proper allowances and deductions.
The appellants do not charge in their petition any fraud, actual or constructive, against the trustee, but rely upon the facts alleged for their claim to an allowance for the deficiency in the quantity of the land, and the defects in the-quality of the machinery. Their solicitor, however, in his brief and argument, assumed broader ground, and contended that this case was to be distinguished from those in which the parties were equally innocent, and the sale was fair, and the property sold by estimation, and not by measurement. He insists the fraud in this-case consists in omissions and concealments, which involve a breach of legal or equitable duty, trust and confidence, justly reposed, which was injurious to the appellant ; that in reference to the machinery, there was gross misrepresentation, which the vendor was bound to make-good.
Trustees will not be permitted to make representations which are untrue, knowing them to be so, or which they have no reason to believe to be true, but if acting in good faith, they commit mistakes, such mistakes will not prejudice sales made by them, more than those made by other vendors. The general principles which regulate applications of this kind are familiar.
" Equity, as a practical system, although it will not aid immorality, does not affect to enforce mere moral duties. But its policy is to administer relief to the vigilant, and to put all parties upon the exercise of a searching diligence.’" 1 Story’s Eq. Jur., sec. 148.
'' Where each party is equally innocent, and there is-no concealment of facts which the other has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference.” It is strictly ' ‘ damnum absque injuria. ’ ’
The misrepresentations complained of, are, that the lands contained “187 acres of land, more or less,” and “that the machinery was in good running order.” The terms used in describing the quantity of the land, have acquired a legal meaning in this State, which is supposed to be known to all purchasers. The construction of these terms is judicially determined by the cases cited by Judge Krebs, in his elaborate opinion in the case of Hall, et al., vs. Mayhew, 15 Md. Rep., 559, afterwards affirmed by this Court. The learned Judge says: “ It is not necessary to look beyond the decisions of our own Courts for the true import and effect of the terms 'more or less,’ or 'estimated to contain,’ in contracts for the sale of lands.” In Jones v.
In Hurt vs. Stull, 3 Md. Ch. Dec., 26, the Chancellor says: “If the representation of the quantity he mere matter of description, and not of the essence of the contract, as where there are qualifying words, as more or less,’ or ‘by estimation,’ the vendee must he understood as assuming' upon himself the risk of the quantity.” He also quotes the language of Judge Story, as above cited, and says r “It must he regarded as establishing the law here.” This decision was affirmed in 9 Gill, 451, where .the Court says : “These words must he considered as qualifying the representation- of quantity, and neither party could claim relief on account of a deficiency or a surplus.”
According to these decisions, the purchasers were notified that quantity did not enter into the essence of the contract, and they were warned to ascertain the quantity at their own risk.
There is no evidence that there was a “swppressio veri” or “suggestio- falsi” in advertising or conducting the sale. The purchasers were virtually invited to examine for themselves, by the information that the premises could he reached by the morning cars from Baltimore. The same property had been sold at public sale in August 1851, for $33,000, by a trustee of good legal standing and reputation, who described it, both as to quantity and quality, in almost the identical terms here used, — -the present trustee being the purchaser, for the benefit of certain creditors, at that sale.
It. would be harsh in the extreme, without further. ■ evidence, to impute to the appellee fraud in adopting a de-
The defects in the machinery (if any) were open to observation, — in the language of the appellants' witness, McKenzie, “ such as any practical man could see as soon as he entered the factory.”
In the opinion of the last occupant and operator of the factory, “so far as the machinery was concerned, the mill was always in a condition to do full work.” It was not the province of the trustee, an officer of the Court, to decide a question of this character, and the mill being in actual use when sold, the presumption is, that he was credibly informed and believed the condition of the mill to he such as represented. Finding no fraud or misconduct in the trustee, the order dismissing the appellants’ petition must he affirmed.
Order affirmed.
