29 Md. 305 | Md. | 1868
delivered the opinion of the court.
The controversy in this case grows out of a claim made by the appellee, for an abatement in the price of a farm purchased by him from Jesse Tyson and James W. Tyson, executors and devisees in trust, under the will of Isaac Tyson, Jr.; on account of an alleged deficiency in the quantity of land. The sale was made by James W. Tyson, and was evidenced by a contract in writing, dated on the [5th day of September, 1864, and signed by him and the appellee. It is in its terms an agreement “to sell the Wilna Farm, Harford County, Md., to Richard S. Hardesty, for the sum of eleven thousand dollars, 171 acres more or less.”
It was afterwards ascertained by an actual survey made in April or May, 1866, by Mr. Dawson, an accurate surveyor, *that the land contained 147 acres 17 perches. Mr. Dawson, the surveyor, was employed by the appellee, the vendors refusing to take part in the survey or to be bound by it.
The Superior Court, by its decree, appears to have allowed an abatement in the purchase money, upon the basis of Mr. Dawson’s survey, which the appellants have argued was error, even if the appellee be entitled to an abatement; because Dawson’s survey was not binding upon the apppellants, and is contradicted by that of Mahool. We shall not stop to discuss the question as to the precise quantity of land actually contained in the farm. Assuming that according to the proof, there were from twenty to twenty-three acres less than the quantity mentioned in the contract, we shall proceed to consider. whether, upon the facts and circumstances of the case as disclosed by the record, the appellee is entitled to any abatement for such deficiency.
We agree with the judge of the Superior Court, in overruling the appellants’.exceptions to the parol testimony offered by the appellee, for the reasons stated in his opinion; and upon the authority of Joice v. Taylor, 6 G. & J. 54; Kent v. Carcaud, 17 Md. 297; Mason v. Crosby, 1 Woodbury & Minot, 342, 353, 354. And in disposing of the question before us, shall consider that testimony as properly in the record.
There is great and irreconcilable conflict in the testimony of the witnesses, with regard to the acts and declarations of the parties át the time of the sale. On the side of the appellee, the proof is that the purchase was made relying upon the positive representation that the farm contained 171 acres, and on the part of the appellants the evidence is just as positive that “ the property was sold regardless of the quantity of *land, that the purchaser, or his son who was present, seemed to know the property as well or better than the vendor, and the exact quantity of land was not made a point of in the negotiation.”
If the decision of the case depended entirely upon that testimony, we should feel very great embarrassment in arriving at a conclusion; because the witnesses are alike unimpeachable, and testify under circumstances that entitle their statements
This rule has been sanctioned and adopted by the Court of Appeals of Maryland. See Jones v. Plater, 2 Gill, 128; Hall v. Mayhew, 15 Md. 551; Slothower v. Gordon, 23 Md. 1. See also the able opinion of Chancellor Johnson, in Hurtt v. Stull, 3 Md. Ch. 24, affirmed in 9 Gill, 446; Smallwood v. Hatton, 4 Md. Ch. 95. The principle deduced from these cases is, that when, by the contract, the qualifying words “more or less,” or equivalent expressions, have been used, they import that quantity did not enter into the essence of the contract of sale, and, in the absence of fraud, neither party can claim relief either for a deficiency or a surplus. Applying this rule to the case before us, we are of opinion that the appellee has failed to establish sufficient Aground to entitle him 'to an abatement in the price stipulated by the contract. The evidence furnishes no ground whatever for the imputation of any fraudulent or wilful misrepresentation on the part of the vendor; the proof shows that he was ignorant of the exact quantity of land contained in the farm. The plat which had been made by Mahool had never been seen by him before the sale. So he testifies, and his evidence in this respect is uncontradicted. With regard to the representations or statements which were actually made by him, as to the number of acres contained in the farm, there is a great conflict in the evidence; but, considering the fact that he was not exactly informed on that subject, and that the plat in his property-book, to which he re
For these reasons, the decree of the Superior Court must be reversed and the cause remanded.
Decree reversed and cause remanded.