White v. Northup

²⁰ Bond, C. J., delivered, the opinion of the Court Thomas W. H. White, since deceased, referred to in -the testimony as Captain White, sold to- John Bowden and Company standing timber owned by him in Wicomico County, and upon receipt of the first payment on account of the purchase price, signed and delivered to the buyers a paper evidencing the transaction, which, in that part involved in this controversy, reads: “Received of John Bowden & Company the sum of one thousand dollars ($1,000.00), same being a part payment for all the timber on my swamp’ piece of land binding on the Chatham Road, except a strip of woods thirty-five yards wide extending from said Chatham Road and bordering on the cleared lands on the Southwest of said swamp the length of said cleared lands; said swamp or tract of swamp land contains Two Hundred (200) acres, or not less than one hundred and ninety (190) acres. Balance of the Ten Thousand Dollars ($10,000.00) which is the purchase price for the timber on said swamp lands, to be secured by note signed by John Bowden & Company, said note with interest until paid, to mature on October 25, 1920, with the distinct understanding that nothing be cut off of these swamp lands by either party to this agreement, unless the note has been paid in full and a clear title given by me to said timber.” Bowden and Company later paid the remainder of the purchase price, and completed the cutting of the timber. They have now sued for a return to them of a portion of the money so paid because of a deficiency in the acreage of the timber, contending that the seller undertook to sell them standing timber of not less than 190 acres, and that as soon as the timber could be surveyed it was found to contain only 131% acres. A verdict was rendered in their favor for $3489, and this is the defendants’ appeal from the judgment entered on that verdict.

There is, first, a' question of the construction of the agreement as expressed by the parties. The appellants contend ²¹ that the clause on the acreage does not amount to a covenant that the area of land holding the timber sold shall be not less than 190 acres, but is only part of a description or desigu nation of the land referred to. The trial court construed the agreement to amount to a covenant and we agree in that construction. In onr opinion the statement in the agreement that “said swamp or tract of swamp land contains two hundred (200) acres, or not less than one hundred and ninety (190) acres,” amounts to a covenant on the minimum stated.

The appellants refer1 to the principle that statements of quantity of land sold in deeds of conveyance imply no covenant that the land contains the quantity stated, unless it is clearly so expressed. Put it has never been held, and we believe could not be held, that a statement in an agreement that a tract contains not less than a: given number of acres, could be construed as anything but a covenant on that minimum. The only conceivable purpose in the fixing of the minimum would be to make it a covenant between tbe parties. See Cohen v. Numsen, 104 Md. 676 , 681 ; Mendenhall v. Steckel, 47 Md. 453 ; Marbury v. Stonestreet, 1 Md. 147 .

The rulings which applied that construction were those on a demurrer to the eighth count of the declaration, and those on the two prayers of the plaintiffs and on three of the defendants’. We find no error in these rulings, for the reasons stated. The defendants’ second prayer is construed by the majority of the court, as a prayer drawing the distinction between one hundred and ninety acres of swamp land with whatever timber stood upon it and one hundred and ninety acres of timber, and considering this 'to be according to the proper construction of the contract of sale, it is held, to be a correct instruction. The ruling on that prayer is, therefore, disapproved.

Exceptions were taken to the admission of plaintiffs’ evidence to identify and outline the area from which the timber was sold, and to establish the actual acreage. The substance of that evidence is this: 'Captain White asked a real estate agent, Downing, to sell the timber for him, and with his ²² son, Thomas W. H. White, Jr., pointed the tract out to Downing. 'Captain White, himself, showed only the front lines, not going back into the woods, but the son went with Downing to all the corners and showed him in the distance trees supposed to be line trees at that time. Downing, in selling, showed Ward, of John Bowden and Company, the turns and corners, 'and told him the acreage, but he could not follow the lines through the woods with him because of the wet condition of the ground. When, after much of the cutting had been