Arnold v. Campbell

Decision Date09 October 1936
PartiesARNOLD et al. v. CAMPBELL et al.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Whitley County.

Suit by J. W. Campbell and others against O. L. Arnold and another wherein defendants filed counterclaim. On the named defendant's motion for an appeal.

Appeal granted, and judgment reversed, and cause remanded for new trial.

J. B Johnson, of Williamsburg, and Gray & Feather, of Corbin, for appellants.

J. J Tye, of Barbourville, for appellees.

CLAY Chief Justice.

By a written contract dated and executed April 2, 1930, A. C Black and J. W. Campbell sold to O. L. Arnold and B. H. Goodin "all of the white oak timber on the first tract of land described in deed from W. H. Campbell and wife to J. W. Campbell and A. C. Black, said deed being dated December 23rd, 1929, but the said second parties will get only the white oak timber on the East Side of Indian Creek, the said timber is located on the following boundary of land, to wit:" (here follows the description by metes and bounds). The contract further provides: "Second parties shall have all of the merchandisable white oak timber on said boundary of land fourteen inches and more in diameter, measured two feet above the ground, the point on the ground from which measurement is to be made will be the average level of the land." There are other references to "the above described boundary of land" and to "the land described in this contract." Another provision is "J. W. Campbell agrees to point out the boundary lines of the timber lands described herein so that second parties may avoid cutting timber on the lands of other parties." The consideration for the sale was $1,000 cash and three notes for $416.67, payable respectively in 60, 90, and 120 days from date.

This suit was brought by J. W. Campbell and A. C. Black against the purchasers, O. L. Arnold and B. H. Goodin, to recover the sum of $321, the balance due on the note payable 120 days after date. By joint answer and counterclaim and amendments thereto the purchasers presented the following defense: Before the contract was signed, plaintiff, J. W. Campbell for himself and as joint owner and agent of his copartner, took John Taylor, defendant's agent, who was sent to estimate the timber, to the tract of land described in the contract and pointed out to him the outside boundary lines of said tract.

The boundary so pointed out included the timber on about 20 acres of land that was afterwards found not to be the land of plaintiffs, and which timber the defendants did not get to cut or use. The defendants did not know the boundary of the land and plaintiffs did know. The defendants relied upon the representations of plaintiffs, which were made for...

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6 cases
  • Piper v. Jenkins
    • United States
    • Maryland Court of Appeals
    • May 18, 1955
    ...point, the purchaser cannot rely upon such a representation as a fact but must ascertain the boundary lines for himself. Arnold v. Campbell, 265 Ky. 485, 97 S.W.2d 32; Gunther v. Ullrich, 82 Wis. 222, 52 N.W. 88; Davis v. Central Land Co., 162 Iowa 269, 143 N.W. 1073, 49 L.R.A.,N.S., 1219; ......
  • Toney Schloss Properties Corp. v. Berenholtz
    • United States
    • Maryland Court of Appeals
    • June 22, 1966
    ...point, the purchaser cannot rely upon such a representation as a fact but must ascertain the boundary lines for himself. Arnold v. Campbell, 265 Ky. 485, 97 S.W.2d 32; Gunther v. Ullrich, 82 Wis. 222, 52 N.W. 88; Davis v. Central Land Co., 162 Iowa 269, 143 N.W. 1073, 49 L.R.A.,N.S., 1219; ......
  • Hall v. Commonwealth
    • United States
    • Kentucky Court of Appeals
    • October 9, 1936
  • VESTAL LUMBER & MANUFACTURING COMPANY v. McMillan
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 20, 1956
    ...Apple v. McCullough, 239 Ky. 74, 38 S.W.2d 955; Haag v. Dixon, 151 Ky. 768, 152 S.W. 930; Davis v. Parrish, 16 Ky. 153; Arnold v. Campbell, 265 Ky. 485, 97 S.W. 2d 32. The judgment of the district court sustaining the motion of Mabel Medill McMillan, for herself individually and as executri......
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