Harwell v. Martin

• Decision Date: 02 April 1902
• Citation: 41 S.E. 686,115 Ga. 156
• Parties: HARWELL v. MARTIN. MARTIN v. HARWELL.
• Court: Georgia Supreme Court

41 S.E. 686

115 Ga. 156

HARWELL

v.MARTIN.

MARTIN

v.HARWELL.

Supreme Court of Georgia.

April 2, 1902.

ERROR—DISMISSAL—SALE OF GROWING TIMBER—DEFICIENCY IN QUANTITY —ACTION FOR PRICE.

1. This case is controlled by the questions made in the cross bill of exceptions, and. the judgment thereon being reversed, the writ of error on the main bill of exceptions is dismissed.

2. Section 3542 of the Civil Code does not apply to a sale of timber growing upon land, when there is no deficiency in the quantity of the land, but only misrepresentation as to the quantity and character of the timber itself.

3. Such misrepresentation affords no ground for defeating an action for the agreed price of the timber, when the purchaser had sufficient opportunity to inspect the same, was not prevented by the seller's fraud from so doing, and voluntarily chose to rely on his statements, without making the necessary examination to ascertain the truth.

(Syllabus by the Court.)

Error from city court of Macon; W. D. Nottingham, Judge.

Action by Martha Harwell against E. L Martin. From the judgment, defendant brings error, and plaintiff assigns cross error. Judgment on cross bill of exceptions reversed. Main bill of exceptions dismissed.

Lane & Park, for Harwell.

Hall & Wimberly and Steed & Ryals, for Martin.

LUMPKIN, P. J. This was an action by Harwell against Martin upon a promissory note for $1,000. The defendant's original answer, in effect, admitted a prima facie case for the plaintiff. In addition to this answer, the defendant also filed what may be termed four special pleas. Two of these (the first and second) were stricken on demurrer, and of this he did not complain. He also offered an amendment to his answer, which the court refused to allow, and of this he did complain. It was, in substance, the same as the fourth special plea, the nature of which will hereinafter more fully appear. At the close of the testimony the court directed a verdict for the plaintiff, Harwell, and the defendant, Martin, brought the case here for review. Harwell, by a cross bill of exceptions, assigns error upon the refusal of the court to sustain his demurrer to the third and fourth special pleas referred to above.

1. In our judgment, these pleas ought to have been stricken, and, this being so, there was, of course, no error in refusing to allow the amendment to the answer, which was, as already stated, in substance the same as the fourth special plea. If this plea was not good, it necessarily follows that the proposed amendment was properly rejected. It accordingly results that this case is controlled by the questions made in the cross bill of exceptions; for, with the special defenses upon which the defendant relied out of the way, a verdict for the plaintiff was inevitable. We therefore confine ourselvesto the questions just mentioned. See Andrews v. Kinsel, 114 Ga. 390, 40 S. E. 300.

2. The following is the defense set up by the third special plea: "On February 2, 1900, T. E. Williams and W. J. Rogers sold and conveyed to the defendant, Martin, P. D. Todd, and A. Causey the timber on certain described lands in Berrien county, including 'all pine timber 14 inches in diameter, 14 inches above the ground, suitable for sawmill purposes, growing upon lots Nos. 414 and 415 in the Ninth district, and lots 414 and 415 in the Tenth district, in said Berrien county, containing 1, 200 acres, more or less.' The consideration of this sale, as stated in the contract evidencing the same, was $8,000. This sum was in fact paid to the owners of the timber. On the same day Harwell sold and conveyed to the above-named purchasers his interest in the timber described in that contract; he having, under an option given him by the owners, effectuated for them the sale of the timber to those purchasers. The price to be paid Harwell was $2,000, 'the same representing his profit in the transaction.' The note sued on was given to Harwell by Martin for his part of the indebtedness thus created. Todd and Causey gave to Harwell their promissory notes for the balance of the $2,000. All of the timber so purchased was at an agreed valuation of $3.10 per acre. The timber in the last-mentioned tract did not amount to twelve hundred acres, and said tract of timber did not contain said twelve hundred acres, the quantity specified, but, on the contrary, contained only 358.7 acres, according to actual survey; and the deficiency in the quantity of acres contained in said tract of timber is and was 841.3 acres, which, at three dollars and ten cents per acre, amounts, at the agreed valuation and purchase price, to the sum of two thousand six hundred and eight dollars and three cents. This defendant shows that the deficiency was so gross as to justify suspicion of willful deception, and that it was, in law, fraudulent, and a breach of contract, to sell and convey said tract of 358.7 acres of timber as a tract containing twelve hundred acres, more or less, of timber. Wherefore this defendant prays for an apportionment of the price of the relative value represented by said deficiency, and defendant prays that the present suit pending against him, and the suit brought by the said Harwell against the said Todd and Causey, respectively, and the other two notes given as part consideration of the purchase of said timber, may be consolidated and tried as one case; and this defendant prays that the said sum of two thousand six hundred and eight dollars and three cents, in which the said Harwell is indebted to this defendant and the said Todd and Causey, may be recouped and set off against the demand of the said Harwell, and that judgment may be rendered in his and their behalf for the overplus." It is evident that the plea with which we are now dealing was framed upon the idea that section 3542 of the Civil Code was applicable to the facts set up by the plea. In this view we are unable to concur. That section deals with sales of land, and cannot be invoked in a case like the present, where there was a sale of all the timber of a given description growing upon a designated tract of land. This plea, taken by itself, and certainly when read in the light of the allegations embraced in the next plea, does not allege that there was any deficiency in the quantity of the land upon which stood the purchased timber, but alleges that a considerable portion of this land was not timbered as represented. The section cited declares that, when there is a sale of land "by the tract or entire body, a deficiency in the quantity cannot be apportioned." If, however, in stating the quantity, the qualifying words "more or less" are used, there may be an apportionment in price where the deficiency is so gross as to justify the suspicion of willful deception or mistake amounting to fraud. These statutory provisions are so clearly inapplicable to a case like the present that we do not deem it essential to further discuss this point, and are entirely satisfied with our conclusion that the court erred in not sustaining the demurrer to this particular plea. It was also insufficient in law for the same reasons as those we will set forth in dealing with the fourth special plea.

3. In it the following facts were alleged as a defense to the plaintiff's action: The plaintiff C. A. Harwell "in the said sale of...