Scott-Strother Lumber Co. v. Danner

139 S.E. 119, 37 Ga. App. 99, 1927 Ga. App. LEXIS 488

Opinion

Luke, J.

1. Where a deed conveys “all the pine timber of sawable kind standing on that tract or parcel of land known as a part of the Old Danner place, and bounded as follows: on the north by lands of B. E. Danner Jr., east by lands of B. E. Danner Sr., south same lands, and west by lands of B. G-. Sayer, and containing thirty-eight acres or aboirfc 175,000 feet, more or less, in said tract,” and in the conveyance it is provided that $300 shall be payable at one time' and $575 at a subsequent time, and the sellers sue upon the contract, a defense seeking to apportion an alleged deficiency in the number of feet of timber conveyed must show actual fraud on the part of the grantor. See King Lumber Go. v. Cowart, 136 Ga. 739 (72 S. E. 37), and cit.

(a) In the present case it was admitted, and the court charged the jury, that the sale of the timber was in bulk.

(b) The evidence was in conflict, but the jury were authorized to find that there was no intentional fraud on the part of the vendor.

(c) It was a question for the jury whether there was such gross deficiency in the number of feet estimated to be on the tract of land as to justify the suspicion of wilful deception, or mistake amounting to fraud.

2. The charge of the court was fair, and was not subject to the criticisms urged in the special grounds of the motion for a new trial. There being evidence to authorize the verdict rendered, and the court having approved the verdict, the motion for a new trial was properly overruled.

Judgment affirmed.

Broyles, O. J., and Bloodworth, J., concur.