Opinion
34313.
DECIDED DECEMBER 5, 1952. REHEARING DENIED DECEMBER 19, 1952.
Action for damages; from Chattooga Superior Court — Judge Nichols, presiding. July 31, 1952.
Archibald A. Farrar, Brinson Davis, for plaintiffs in error.
Thomas J. Espy Jr., Claude H. Porter, Hugh Reed Jr., contra.
Having failed to allege that the plaintiffs were misled as to the amount of timber contained in the land involved by any representation of the defendant as to the amount of timber contained therein, or that the plaintiffs were misled as to the amount of timber involved by the defendant's representation as to the boundaries of the land involved, the petition did not allege a cause of action for deceit, and the court did not err in sustaining a general demurrer thereto and in dismissing the action.
DECIDED DECEMBER 5, 1952 — REHEARING DENIED DECEMBER 19, 1952.
A. G. Perry and W. A. Perry sued M. H. Copeland for damages for alleged deceit. The petition alleged substantially: 1. On May 24, 1948, the defendant sold to plaintiffs all the salable timber upon a tract of land which was represented by defendant to be bounded as described herein below (physical boundaries described). 2. On said tract there was then standing sufficient salable timber to produce 500,000 board feet of lumber. 3. The reasonable market value of the timber on the tract described in plaintiff's paragraph 1 is $5000. 4. Defendant on May 24, 1948, executed a timber deed, a copy of which is hereto attached, marked Exhibit "A", and made a part hereof. 5. The land described in plaintiffs' Exhibit "A" is only a small portion of the land described in paragraph 1 of this petition and as represented by defendant to plaintiffs. 6. There was on the land described in plaintiffs' Exhibit "A" an amount of timber which, when cut into lumber, was sufficient to produce only 93,000 board feet. 7. The reasonable market value of the timber standing upon the tract described in plaintiffs' Exhibit "A" was $930. 8. On account of the discrepancy between the value of the timber on the two above tracts, respectively, and on account of the defendant's representation that he was the owner of the tract described in plaintiffs' paragraph 1, defendant is indebted to plaintiffs in the amount of $4070. 9. The boundary lines of the tract described in plaintiffs' paragraph 1 constituted material facts, and the representations made by defendant to plaintiffs were made for the purpose of inducing plaintiffs to act as hereinafter specified; and plaintiffs acted upon said representations to their injury as will more fully appear hereinafter. . . 11. Said representation by defendant that he owned the tract of land described in paragraph 1 was a wilful misrepresentation and was known to be such by defendant at the time he made such representation; and further, said representation was reckless, was made as true, and was intended to deceive the plaintiffs. Exhibit "A" was a timber deed from the defendant to the plaintiffs, conveying to them all the salable timber on the following described lands located in Cherokee County, Alabama: The Northwest Quarter and the west half of the Northeast Quarter of Section eighteen; and the Northwest Quarter of the Southeast Quarter; the Northeast Quarter of the Southwest Quarter; the Southwest Quarter of the Northeast Quarter; and the Southeast Quarter of the Northwest Quarter of Section eight; all of the above described lands being in Township ten, south of Range eight, east, containing in the aggregate four hundred acres, more or less, and lying and being situate in Cherokee County, Alabama; being the identical lands conveyed to W. D. Person and Martin H. Copeland by Charles Hudon Shropshire, as the executor of the will of Tol Haynes Shropshire, deceased, by his deed, dated March 17, 1944, which said deed is recorded in the Probate Offices of Cherokee County, Alabama, in Deed Record Vol. A-26 at page 24; also the east half of the Southeast Quarter of Section seven and the west half of the Southwest Quarter and the Southwest Quarter of the Northwest Quarter of Section eight; all said lands being in Township ten, south of Range eight east, containing in the aggregate two hundred acres more or less, and lying and being situated in Cherokee County, Alabama; being the identical lands heretofore conveyed to R. O. Shaneyfelt by S. J. Wright and wife by their deed dated February 16, 1943; which said deed is recorded in Deed Record A-24 at page 326 in the Probate Offices of Cherokee County, Alabama. The court sustained a general demurrer to the petition and dismissed the action. To such judgment the plaintiffs except.
The only possible construction that can be placed on the petition is that the defendant misrepresented the amount of land which was described in the timber deed, Exhibit "A" of the petition, and that it was the representation as to the amount of land involved that they relied upon. It is not alleged nor can it be construed to allege that the defendant ever represented to the plaintiffs what amount of timber was contained in the tract as it was represented or what amount was contained in the tract on which the timber conveyed by the deed was located. Neither the timber deed, Exhibit "A", nor the allegations concerning the defendant's representation of the physical boundaries of the land, paragraph 1 of the petition, contain any reference to any definite amount of timber. There is no allegation that the plaintiffs knew or had reason to believe that the tract as represented contained enough salable timber to produce 500,000 board feet of lumber, or any definite amount of lumber. There is nothing alleged which would show that the alleged misrepresentation as to the amount of land covered by the timber deed misled the plaintiffs as to the amount of timber involved. This case is based on the theory, not that the plaintiffs were damaged by a shortage of acreage, but that they were damaged by a shortage of timber. It does not necessarily follow that more land contains more timber.
In the absence of allegations that the plaintiffs were misled by representations as to the amount of timber on the land involved, or of allegations that they were misled as to the amount of timber involved by the misrepresentation as to the amount of land involved, the petition fails to allege a cause of action for deceit.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.