Musselman v. Moxley

¹⁴ Pattison, J., delivered the opinion of the Court. The appeal in this ease is from a judgment for defendant’s costs, in a suit instituted by the appellants, Erank M. Musselman and Henry K. Hoke, co-partners, trading as Musselmap & Hoke, against the appellee, James E. Moxley, to recover money claimed to, have been wrongfully paid him by the appellants, in the purchase of timber. The appellants were, in the year 1923, engaged in the lumber business. In the spring or summer of that year, Mussel-man, one of the appellants, a resident of Pennsylvania, went to Howard County, and there looked at the timber on two pieces of land owned by Moxley, with the view of purchasing the timber.

At that time no purchase was made of it. Later, in October of the same year, Musselman again looked at the timber and then bought it for five thousand dollars. In the written contract of sale therefor, the timber is described as follows: “All the timber now standing and growing on all those two pieces of wood land, containing in the aggregate seventy acres more or less, situate and lying on the farm which the said James E. Moxley recently purchased from the Westphal Estate in * * * Howard County, Maryland.” The entire amount of the purchase money (five thousand dollars) was paid to Moxley. The purchasers, after cutting some of the timber, were of the opinion that the two timber tracts did not contain the number of acres stated in the contract of sale, and they had the land surveyed, when it was found that the larger tract contained thirty-one acres and twenty-one and one-third square perches, while the smaller tract contained sixteen and one-fourth acres, making in all less than forty-seven and one-half acres.

It was to recover the amount paid for timber they did not get, because of the shortage in acreage, amounting with interest to $1,814.49, that this suit was brought. In the trial of the case, three exceptions were taken to the rulings of the court. Two relate to the evidence and one to the action of the court in granting defendant’s prayer at the conclusion'pf the plaintiffs’ evidence, withdrawing the case from ¹⁵ the consideration of the jury. In disposing of the last exception, it will be necessary for us to state the evidence at some length.

Musselman, one of the plaintiffs, testified that, on the occasions when he visited the timber tracts; he was told by Moxley that there were seventy-five acres in the two tracts. After he had agreed to purchase the timber, he accompanied Moxley to the office of Moxley’s attorney, Mr. Glark, in Ellieott City, to have the written contract prepared. In the course of its preparation, Mr. Clark asked the number of acres in the two tracts, that he might insert it in the contract, and Moxley replied, saying “seventy acres.” As this amount was less than that which he had previously told Musselman, the latter said “all right, but it is not supposed to vary over an acre either way.” This he said three times while the contract was being prepared. Musselman stated that when upon the land he made an estimate of all the lumber that could be cut therefrom, by taking a piece of ground that he supposed was about an acre and counting the trees upon it and figuring the amount of lumber that could be cut ■therefrom, which amount he placed at seven thousand feet.

He did this with one acre only, but in this way ho estimated the value of all the timber on the two tracts, consisting, as he was told, of seventy-five acres. The timber varied in amount on the different parts of the tracts, but he allowed for such variance in making an estimate of its value. That he was not shown all the boundaries, nor did he go over all the land, and that on one side, at least, it bordered upon the timber land of others. He was then asked: “Do' you mean to say you bought the timber without having the boundaries pointed out to you or walking over the ground” ?

Answer: “Yes, sir; I was buying it by the acre.” Mr. Talbot, who, at the instance of the plaintiffs, surveyed the two timber tracts, found them to contain the amount already stated, less than forty-seven and one-half acres. He, when asked if there was any land adjacent to the tracts surveyed that was also in timber, replied: “Yes-, this thirty ¹⁶ acres (which was one of the tracts) was partly surrounded by other timber.” Joseph A. Brunsman testified that he, under power of attorney from the owner, sold the Westphal property, which contains said timber'tracts, to James B. Moxley, who owned a nearby farm. He was then asked: “What was said, if anything, about the timber on that land, as to- the quantity of acreage, at the time of the sale you made to- him ? A. I say about fifty acres.

Q. Did you