Perkins Manuf'g Co v. Williams

• Decision Date: 04 May 1896
• Citation: Perkins Manuf'g Co v. Williams, 98 Ga. 388, 25 S.E. 556 (Ga. 1896)
• Parties: PERKINS MANUF'G CO. v. WILLIAMS.
• Court: Georgia Supreme Court

98 Ga. 388

25 S.E. 556

PERKINS MANUF'G CO.

v.WILLIAMS.

Supreme Court of Georgia.

May 4, 1896.

Vendor and Purchaser—Action for Fraud— Province of Court—Lessee—Liability for Trespass of Subtenant.

1. Whether or not a deficiency in the quantity of land sold by the tract, and described as so many acres, "more or less, " is "so gross as to justify the suspicion of willful deception, or mistake amounting to fraud, " is ordinarily a question of fact, to be decided by the jury in view of all the circumstances of the particular case, and not one of law, for determination by the court. An exception may arise "in such extraordinary and pronounced cases as would afford no room for difference of opinion." Under the facts disclosed by the record, the present case falls within the general rule.

2. Where a deed conveyed absolutely to the grantee and his heirs and assigns all the sawmill timber on a given tract of land, with the privilege of boxing the same for turpentine purposes for a designated period, and with "full privileges" to the grantee, his heirs and assigns,

of right of way for railroad, tramroads, and wagonroads across said tract of land during the time of this sawmill operation in that section, " trees of a specified size being expressly excepted from the operation of the deed, such grantee is not liable to the grantor for damages caused by the cutting or boxing of the excepted trees during the period indicated, by a third person, to whom the grantee had leased the turpentine privileges upon the land, the lease to that person itself expressly declaring that no trees of this description were to be boxed by him.

(Syllabus by the Court.)

Error from superior court, Glascock county; Seaborn Reese, Judge.

Action by the Perkins Manufacturing Company against John B. Williams. From the judgment rendered, plaintiff brings error. Reversed.

Rawlings & Hardwick and Evans & Evans, for plaintiff in error.

Jas. Whitehead, for defendant in error.

SIMMONS, C. J. The Perkins Manufacturing Company in 1887 purchased from Williams the sawmill timber on a certain tract of land, described in the deed as "containing 672 acres, more or less, " for which it paid him $1,300. It subsequently ascertained that there was a deficiency in the number of acres, and brought suit against Williams, alleging that "the discrepancy is so glaring as of itself to suggest fraud and deception; that the warranty in the deed was intended to cover, not only the title to the land, but also the number of acres conveyed"; and that by reason of the deficiency the plaintiff was damaged $1,000. Williams, in his answer, admitted that there were only 465 1/2 acres. Upon the trial of the case, counsel for the plaintiff requested the court to charge the jury that "it being conceded by the plea of defendant that the tract of land contained 465 1/2 acres only, and that the amount stated in the deed is 672 acres, more or less, therefore I charge you, as matter of law, that the discrepancy is so gross as to justify the suspicion of willful deception, or mistake amounting to fraud." The court refused to give this in charge, and the refusal is complained of as error.

The words "more or less" will cover any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. Code, § 2642. Questions of fraud, or of what amounts to fraud, in a particular case, are generally for determination by the jury. Each case presents its own peculiar facts. The deficiency in one case is greater than in another. The purpose for which the land is purchased is very different in one case from what it is in another. If a man should purchase land for a mill site, the water power would be the principal thing he would have in view. He would not care so much for the number of acres as be would for the mill site, and would therefore pay less attention to the representations of the vendor as to the number of acres than he would if he were buying merely for the purpose of cultivation. The suspicion of willful deception, or of mistake...