This suit in equity was brought by S. H. Watring against Virginia S. Gibson and J. A. Gibson, her husband, to re ■cover baek $1,125.00, 'of the purchase price paid Virginia S. Gibson for standing timber, on account of a shortage in the quantity purchased and paid for, and to enjoin her from prosecuting an action at law, brought against this plaintiff to recover damages for cutting dead timber, which was interspersed with the green timber purchased, but which was not included in the contract of sale:
The contract bearing date April 22, 1915, was signed, sealed and acknowledged by both Mrs. Gibson and her husband and showed a sale of ‘ ‘ all the green hemlock and spruce timber 10 inches and over in .diameter standing and being ■on that certain tract of land containing 410 acres,” at the price of $3.00 per M. feet stumpage. It gave the location of the tract and the terms of payment, which have been fully complied with and are not now material, the entire sum paid for the timber being $4,500, determined upon the basis of an estimated stumpage of 1,500,000 feet. The stump-age was not ascertained when the contract was signed, but it was therein provided that it should be determined in the following manner: Each party was to select an estimator and these two an umpire, in case .they failed to agree, who were to make the estimate “in the tree according to the standard rule of lumbermen, and said estimjate to be final and complete and to constitute the basis of settlement.” 'Only a comparatively small portion of the 410 acre tract had any grleen spruce or hemlock on it, and, it formed a practically contiguous boundary, irregular in shape, fringed and interspersed with dead, standing spruce and hemlock and with fallen trees of the same kind that had been blown down by wind' storms. All the negotiations and transactions con
Three and a half acres of dead, standing timber was included in the boundary, which Gibson told plaintiff and the estimators they might include with the green timber, and they say they did include it in making the average of 25,000 feet per acre. Plaintiff cut and manufactured this dead timber, and it was( to /recover for this trespass that Mrs. Gibson brought the action at law which plaintiff prayed to have enjoined. On final hearing upon bill, answer, replication, and depositions of numerous witnesses, itjhe court en-. tered a decree refusing to grant plaintiff any relief on account of shortage in the acreage, for the reason, stated in a written opinion printed with the record, that the court, was of the opinion Mrs. Gibson should not :be held responsible for the representations of her husband as to the number of acres in the boundary, notwithstanding the learned chancellor found the fact, "established by the proof,” to be that Gibson had made such declarations. In addition thereto, both the estimators swear they did not estimate the acreage, did not know what the boundary contained and relied on the statement of Gibson as true, and determined the quantity of timber on the whole boundary accordingly. Plaintiff’s testimony is to the same effect, that no measurements were made by the estimators' to ascertain the acreage, and that Gibson stated several times that the boundary of green timber contained 60 or 61 acres. In view of the established fact that Gibsoii did represent that he and another man had measured the boundary and found it contained 60 or 61 acres, and the undisputed) testimony of the surveyor, who afterward surveyed it, that it contained only 45 acres, considered in connection with the uncontradicted testimony of the estimators, to the effect that they relied on Mr. Gibson’s statement as true and made their estimate accordingly, we think the court erred in denying plaintiff relief on account of the shortage. However, the court decreed plaintiff a recovery of $834.96 on’ account of the dead timber which Gibson had * assumed to authorize him to cut and which had been in-
Although plaintiff has accepted the benefit of that part of the decree in his favor, he may, nevertheless, appeal from that part of it denying the special relief prayed for, because the decree expressly provides that his acceptance of the amount decreed him should not prejudice his right of appeal in respect to his claim to reimbursement on account of shortage in acreage. The saving provision of the decree prevents the application of the doctrine of waiver which might otherwise defeat his right of appeal, as was the case in McKain v. Mullen, 65 W. Va. 558; discussed also in Eakin v. Eakin, 83 W. Va. 512, 98 S. E. 608.
The bill seeks to recover back money which plaintiff was induced to pay because of the fraudulent representations made by the defendant’s husband and agent, on the truth of which he relied and was thereby misled, the very kind of a wrong that a court of equity delights to correct, notwithstanding courts of law may furnish a concurrent remedy. See numerous cases cited in 6 Encyc. Dig. Va. & W. Va. Cases, 476.
Where a vendee has been induced, by the false and fraudulent representations of the vendor ‘or his agent, to accept
The marital relation does not prevent a husband from acting as agent in the management of his wife’s property. Trapnell v. Conklyn, 37 W. Va. 242. No rule of law is better settled and more universally applied than the rule which holds a principal bound by the declarations and representations as to matters of fact, not mere expressions of opinion, made by his agent respecting a transaction entrusted to him. Nutter v. Brown, 51 W. Va. 598. “Where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject matter will bind the principal, where made at the same time and constituting a part of the res gestae.” Coyle v. B. & O. R. R. Co., 11 W. Va. 94. This rule applies to married women respecting those matters concerning which they axe authorized by law to contract. Mrs. Gibson could sell and convey her timber by deed, acknowledged by her, her husband joining therein, and did dispose of her timber in that manner. She would also be liable for any fraudulent representations made by her-in respect thereto. 2 Bishop’s Law of Married Women, §490; and 21 Cyc. 1425. The fraudulent representations of which plaintiff complains were made by Mrs. Gibson’s husband while acting as her agent, after the written contract had been fully executed by her, and were made in her interest for the purpose of increasing the amount of . money she was to receive under the contract, and must, therefore, be regarded as having been made by herself. 21 Cyc. 1425. It does not appear that she authorized him to make those •statements, or that she even knew that he had made them, be■fore receiving the money for the timber. Still she cannot jbe permitted to retain the benefits of the contract, procured .for her by her husband and at the same time repudiate any
Having held her husband out as her agent in negotiating . the sale of her timber, and having signed and acknowledged a written contract therefor, executed in the manner provided by law for the sale of married women’s real estate, and having received the benefits thereof, she is estopped to deny his agency. 13 R. C. L. 1169.
Counsel for defendant cross-assign the following errors in their brief. First, they insist plaintiff should have litigated the matters set up in his bill, in defense of the action at law which he asked to have enjoined. That was an action of trespass on the case for cutting timber, an action foreign to the contract, and while the matter complained of in the bill might have formed the basis of an action at law, either in tort for the deceit, or in assumpsit for money had and received, still our procedure does not admit of set-off in an action of tort, hence they could not have litigated in defense of that action. Second, in not sustaining the demurrer in its entirety to the plaintiff’s bill. At a term previous to the one at which the final decree was rendered, the court sustained the demurrer to the bill in so far only as it prayed for an order enjoining prosecution of the action at law. The bill is clearly good in respect to the other relief prayed for..
The third cross-assignment of error relates to the decree against Mrs. Gibson for the repayment of the money, paid on account of the dead timber not included in the written contract of sale. The decree in that respect was clearly right. She could not be permitted to retain the money actually paid for the timber, and at the same time recover for the trespass committed in cutting it; that would be unjust and unequita-ble. But even if the decree in that respect were erroneous,
The decree gave plaintiff a recovery against Mrs. Gibson for $834.96 on account of the dead timber, which had been included in the estimate of green timber, for the whole of which, both green and dead, plaintiff had paid $4,500.00. Mrs. Gibson should have credit for the amount decreed against her, thus reducing the amount which plaintiff actually paid for' the green timber on the estimated boundary, to $3,665.04, one fourth of which he is entitled to recover back from her, as the shortage of fifteen acres is one fourth of the acreage which Gibson had represented in the boundary.
In so far as the decree appealed from denies plaintiff relief on account of the shortage in the estimated amount of timber, it will be reversed and a decree entered here in his favor for the sum of $916.26, with interest thereon from April 22/1915; and in all other respects the decree will be affirmed, with costs to appellant.
Reversed in part. Affirmed in part. Decree for Plaintiff.