Estes v. Odom , 91 Ga. 600 ( 1893 )

Bleckley, Chief Justice.

1. The code, §2642, reads thus: “In a sale of lands, if the purchase is per acre, a deficiency in the number of acres may be apportioned in the price. If the sale is by the tract or entire body, a deficiency in the quantity sold cannot be apportioned. If the quantity is specified as “more or less,” this qualification will cover any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud; in this event, the deficiency is apportionable: the purchaser may demand a rescission of the sale or an apportionment of the price according to relative value.” Here the sale was by the tract or entire body, and the quantity was specified in the conveyance as forty acres, more or less. According to the evidence of the vendee, the vendor represented the quantity to be forty-one and a quarter acres. Let it be granted that this representation. was willfully false and that the tract contained less than forty acres, would it necessarily follow that the vendee could recover for the deficiency, however small or inconsiderable that might be? ¥e think not, for,, according to the section of the code just quoted, the qualifying words “more or less” covered any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud. By accepting such a conveyance, the vendee waived both mistake and deception, unless fraud either by one or the other would, after ascertaining the true quantity, he suggested to the mind by a comparison of that quantity with the quantity named in the descriptive words of the conveyance. If either direct fraud or a mistake so gross as to be equivalent thereto would be suggested by such a comparison,, then a recovery could be had. Otherwise, it could not;, for “any deficiency not so gross as to justify the suspicion of willful deception, or mistake amounting to fraud,” is covered by the qualification “more or less.” Such a suspicion could not arise or be justified unless some suggestion of fraud or gross mistake would occur to the mind as probable in consequence of the magnitude of the deficiency, in view of the object of the purchase and all the attendant circumstances. Where the vendor qualifies his conveyance with the terms “more or less,” the vendee is put upon notice not to rely upon any representation of quantity as being exact. He is put upon notice that the true quantity may, on being ascertained, vary not only from that mentioned in the representation, but from that mentioned in the conveyance, by any difference whatever which is not suggestive of fraud either by deception or by gross mistake. Is it a question of law or a question of fact, whether, in the given instance, there is a suspicion of willful deception or of mistake amounting to fraud ? In ordinary cases, we think it is a question of fact to be decided by the jury on all the circumstances of the particular case, including as one of the main considerations the object of the purchase (if any in particular) as understood between the parties at the time of the transaction. Where the quantity was substantially material to the object, the suspicion would arise far more readily than where it was not. For instance, where a purchase of a large tract is made with a view to putting all of the land immediately in cultivation, a deficiency in quantity would count for much more than would the same deficiency in a tract of the same size bought as a building site, or as a business stand for a country store. In the one instance, a somewhat small deficiency might well justify the suspicion, and in the other a much larger deficiency might afford no ground for it whatever. In the one instance there might be good reason for believing that the vendee relied upon a false representation, thinking it to be true; in the other, the jury might well believe that he fully realized the object of his purchase in the land as it actually was, and that he placed no reliance upon any representation, not caring whether it was true or false. Unless a suspicion of willful deception or of mistake equivalent thereto first arises, without ascertaining the actual fact whether there was or was not such deception or mistake, no final inquiry into the actual fact is in order. Until this preliminary question is decided affirmatively, the additional and ultimate question is immaterial. Though all the evidence bearing on both questions must be submitted at the same time, or in the course of the same trial, the jury should be instructed to deal with the former question first, and not to deal with the latter at all in the event they should determine the former in the negative. "We say the preliminary question is for the jury in ordinary cases. In such extraordinary and pronounced cases as would afford no room for difference of opinion, that question could doubtless be decided by the court hypothetically as one of law. ’ The deficiency might be so slight and trivial, on the one hand, or so excessive, on the other, as either to present nothing whatever for trial by the jury beyond ascertaining the extent of the deficiency, or limit their functions to that and to the ultimate question, together with the assessment of damages. We deem the present case, under the facts in evidence, an ordinary, not an extraordinary one, the deficiency being seven acres, and the description in the deed being forty acres, more or less. We cannot say, as matter of law, that the deficiency is so gross as to justify a suspicion of willful deception or of mistake equivalent to fraud; nor can we say, on the other hand, that it is not. For the sake of emphasizing an essential distinction, we repeat that the sufficiency of the words “more or less” to cover a given deficiency, when ascertained, does not depend upon the actual existence or non-existence of' fraud, either in the form of mistake or of willful deception, but solely upon whether the deficiency is such as-to justify a suspicion of fraud. When the suspicion is thus justified, then and then only is the actual existence of fraud material. The suspicion may be rebutted, for the suspicion without the fraud will not warrant a recovery; nor will the fraud without the preliminary suspicion. The plaintiff must show a deficiency which is uncovered, and by this means make a prima facie case of fraud to the extent of raising a suspicion. The same facts which justify the suspicion may prove the fraud, prima facie. The suspicion, however, must be generated in a certain way; it must arise out of a comparison of quantities and out of the magnitude of the resulting deficiency — its magnitude either absolutely, or relatively to the object of the purchase, etc.; whereas, were the question only one of actual fraud, the fact of the fraud might be shown in various ways, none of them involving the magnitude of the deficiency. In raising a suspicion of fraud, what the vendor knew, said or did in negotiating the sale, need not be known. lie may have acted in perfectly good faith, but this will not be assumed, and therefore will not protect him from the suspicion which we are discussing; good faith can be shown only to rebut the suspicion after it has arisen, and to negative the actual commission of fraud, notwithstanding the apparently well-founded suspicion thereof.

2. We have examined carefully the charge of the court as brought up in the record. It nowhere submits, to the jury the preliminary question of fact above specified, but proceeds upon the theory that if there was willful deception, the vendor would be answerable at all events for the deficiency. In one of the paragraphs-excepted to, it says: “The amount of acres stated in the deed must be the amount of acres that you will say was sold, taking the' verbal testimony to throw light-upon that, but not to alter it, because when a matter is-in writing it cannot be substantially changed by verbal testimony.” Under the rule of the code, where the qualifying words “more or less” are used, no number of acres whatever, according to the writing, is sold other than the number contained in the tract, and this number is subject to be ascertained by parol evidence, whatever number maybe mentioned in the deed. The instruction just quoted, taken by itself, seems intended to bind both parties by the quantity stated in the deed, but this construction would he inconsistent with other parts of the charge, and is therefore not to be adopted. We cannot be sure of the precise idea which the court mehnt to express, but we are sure that the jury may have understood the court as meaning that they were to consider forty acres as the quantity sold; and in view of the rest of the charge, we reach the conclusion that the court designed the jury to understand that if the ti’act contained seven acres less than forty, and if there was a false and fraudulent representation by the vendor that it contained forty-one acres and a quarter, they were to allow damages on account of the deficiency of seven acres. Now such a result would not be correct, as we have already seen, unless the words “more or less” would not cover the deficiency, and whether they would-or not depends on whether that deficiency is so gross as to justify a suspicion of willful deception or of mistake amounting to fraud. We think the charge quoted was erroneous, and that a new trial should be had on account of that error.

3. In declining to charge as requested on the subject of estoppel the court did not err, for the reason suggested in the third head-note.

4. Assuming that the deficiency was more than the indefinite words in the deed would fairly cover, previous knowledge by the vendee of the boundaries of the tract would not hinder a recovery for the fraud, if he was actually deceived by a false representation made willfully by the vendor. Knowledge of boundaries need not involve knowledge of acreage or superficial area, and was not, in itself, notice of what the tract contained.

5. The theory that the vendee must be satisfied if he got in land the worth of his money is altogether wrong. He was entitled to have what he bought and paid for, and if the fraud of the other party deprived him of a part of the same so considerable that the fraud is manir fested prima facie, or fairly suggested as .probable, by the grossness of the deficiency, the minimum recovery should be the amount paid for the deficiency, with interest thereon from the time of payment. If the true tract, as it proved to be, was, on account of being so small, worth less than it would have been as part of a larger tract which the vendee supposed he was getting, and had a right to expect, this difference would be recoverable, no matter how valuable the true tract was. Smith v. Kirkpatrick, 79 Ga. 410. Judgment reversed.