Sentman v. Gamble

• Decision Date: 14 June 1888
• Citation: 14 A. 673,69 Md. 293
• Parties: SENTMAN v. GAMBLE et al.
• Court: Maryland Court of Appeals

14 A. 673

69 Md. 293

SENTMAN

v. GAMBLE et al.

Court of Appeals of Maryland.

June 14, 1888.

On reargument.

For opinion delivered on the first argument, see 13 Atl. Rep. 58. For opinion on former appeal, see 11 Atl. Rep. 584.

Reargued before ALVEY, C J., MILLER, ROBINSON, IRVING, STONE, BRYAN, and MCSHERRY, JJ.

William S. Evans, R. E. Thackery, and J. Wesley Falls, for appellants. Albert Constable and Heister Hess, for appellee.

MILLER, J. The court ordered this case to be reargued, and the majority of the judges who heard the reargument are of opinion the judgment should be affirmed. The note sued on was given in payment for wood growing and standing upon a certain tract of woodland sold by the plaintiff, Sentman, to the defendants Gamble and Logan. The subject-matter of the sale being growing wood or timber, it was a sale of goods only. Smith v. Bryan, 5 Md. 141. The plaintiff having proved the execution of the note, the defendants then offered in evidence a contract for the sale of the wood which was in writing, and dated the 26th of February, 1886. By this contract, Sentman agreed to sell to Gamble and Logan "all the wood," with the exception of certain rails and posts already cut, and the chestnut timber fit to make rails and posts, which he (Sentman) had purchased from T. Snowden Thomas by agreement dated the 22d of February, 1886; "said tract of woodland lying north of the east and west road connecting the road from Bay View to Northeast with that from Bay View to Charlestown, except a few acres on the west of the Bay View and Charlestown road, adjoining the land of S. P. Maffitt, for the sum of $300." By reference to the contract between Sentman and Thomas, which was also in writing, and was afterwards offered in evidence by the plaintiff, we find the same description of the tract, except that the words "said Thomas tract of woodland, part of Russell's Union," are used. So far as the description of boundaries is concerned, the two contracts are identical. In neither of them is any boundary definitely described except the road referred to, and in neither of them is any mention made of the eastern boundary separating the lands of Thomas from those of McDaniel. Having offered this contract in evidence, Gamble, one of the defendants, testified that, before the contract was signed, he went with the plaintiff and Logan to the tract several times to examine it; that they walked over the land, and examined the wood; that the plaintiff pointed out to them the boundaries, and told them that the eastern boundary between the Thomas tract and the land of McDaniel was marked by an old fence; that neither witness nor Logan knew where the boundaries of the Thomas tract were; and that, relying on said representation of the plaintiff in regard to the eastern boundary, witness signed the contract; that he and Logan then put men in the woods, and cut timber next to the old fence which plaintiff had pointed out to them as the true line; that he afterwards learned he had been trespassing on McDaniel's land, and that the true eastern boundary line was to the westward of the old fence, and between that fence and the true line were about 12 acres of land which belonged to McDaniel; that he and Logan had cut on these 12 acres about 100 cords of wood, which they were compelled to leave there, and that McDaniel had sued them for the trespass; that the wood on these 12 acres would cut 28 cords to the acre, exclusive of chestnut rail timber and posts, and was worth, standing in the woods, 75 cents a cord net; that when he learned that McDaniel claimed these 12 acres, and had had the true line established, he went to the plaintiff, and endeavored to have the matter settled, but without effect; that, at the time the error was discovered, he had cut a portion of the wood on the true Thomas tract; that he then offered to Sentman to retire from the contract if he would pay him, but they could not come to terms, and Sentman refused to leave the matter to be adjusted by arbitrators; that witness then thought he had better hold onto his contract, and go ahead, and he then proceeded to cut the remaining wood on the Thomas tract, and sold some of it as wood, and had other portions made into charcoal, and thought he had sold about 9,000 bushels of charcoal. This witness also proved that a few days before the note sued on became due, and before suit brought, he tendered the sum of $160 to the plaintiff, which the latter refused to accept. The same facts as testified to by Gamble were also testified to by Logan. The defendants then offered in evidence a survey and plat of the Thomas tract, showing its true eastern boundary as well as the location of the old fence, and proved by the surveyor that there were 12 acres between the true line and this fence. The plaintiff then proved, by himself as a witness, that, prior to the contract of the 25th of February, he had been negotiating with Thomas for the purchase of the rail and post timber on this tract for the purpose of filling a fencing contract with the Baltimore & Ohio Railroad Company; that he had no use for the cord-wood on the land, but Logan and Gamble came to him, and told him that, if he would buy all the wood on the tract, they would purchase from him the cord-wood for $300, and he could reserve the chestnut rail and post timber; that he knew nothing of the lines of the tract himself, but Thomas had walked with him over it, and had pointed out what he said were the boundaries, and pointed out the old fence as the boundary between himself and McDaniel; that he afterwards walked over the track with Logan and Gamble, and told them that Thomas had told him that this old fence was the eastern boundary of his tract; that he did not profess to know anything about the lines himself, but merely repeated to them what Thomas had told him, and told them that Thomas had so told him; that, relying on what Thomas had told him, witness believed this fence to be the true eastern boundary, and, so believing, he had a large number of chestnut trees growing on the land between the true line, as shown by the plat, and the old fence, cut, and made into posts and rails, a portion of which he had hauled off, and, after the true line was discovered, he had been compelled to leave the rails and posts he had not hauled off, and to haul back those he had taken away; that, after he had walked over the track with Gamble and Logan as aforesaid, he bought from Thomas all the wood growing thereon for $500, by a written contract dated the 22d of February, which he produced and offered in evidence. This contract has already been sufficiently described. The plaintiff further testified that he acted in perfect good faith in making the representation to Gamble and Logan in regard to the old fence as the eastern boundary; that he made it solely upon the representations made to him by Thomas, and told them so at the time, and that he was as much deceived as they were, and lost his chestnut which he had cut; that, after the survey disclosing the error had been made, he saw Logan and Gamble, and offered to relieve them of their contract, and pay them their expenses of getting the wood, if they would surrender the contract, but they refused to do so, and said they would hold onto their contract. On cross-examination, plaintiff admitted he was not the agent of Gamble and Logan to purchase the cord-wood for them from Thomas, but that he had purchased it to make out of it what he could for himself by a resale to them. Boyd, another witness for the plaintiff, testified that he had, by the orders and direction of Thomas, cut cross-ties on the land lying west of the old fence, and that McDaniel, who owned the adjoining tract, had made a fuss about it. The defendants then produced Thomas as witness, who testified that, some months prior to the signing of the contract of the 22d of February, he had sold plaintiff leave to cut chestnut for posts and rails; that after-wards, and some time before the contract was signed, plaintiff had offered to buy, and witness agreed to sell him, all the wood on the tract for $500, including the rails and posts already cut; that, on the day the contract was signed, the plaintiff came to him, and asked him to have it put in writing, which was done, and both parties signed it; that he and plaintiff had been over the land several times, prior to the purchase of the wood, and he had pointed out the lines in a general way, but had never pointed out the old fence as one of the lines, but pointed out the beginning point as laid down on the plat, and told him it was a due north and south line between himself and McDaniel. Logan and Gamble further testified that the plaintiff had already purchased from Thomas before they approached him, and had heard him attempting to sell the wood to a man named Clayton before that time.

Such is the evidence on both sides as disclosed by the record. We have done the unusual thing of setting it out in detail in this opinion, because, having granted the motion for a reargument, we desire that the real merits of the case as disclosed by the testimony, as well as the grounds of our present decision, should clearly appear. It is to be specially noted that all this testimony was admitted without any objection, on any ground, to the admissibility of any portion of it, for any purpose whatever, being made by the plaintiff. Upon the testimony thus let in, both sides asked instructions from the court. The five asked by the plaintiff were all rejected; and of these the second, third, and fourth have been abandoned in this court. The stress of argument made by the able counsel for the appellant has been very properly addressed to the granting of the single instruction asked by the defendants; for we think it very clear that, if this instruction be correct, it covers the whole law of the case. By it the jury were instructed that if they believe from the evidence that Gamble and...