delivered the opinion of the Court.
The Court ordered this case to be re-argued, and a majority of the Judges who heard the re-argument are of opinion the judgment should be affirmed.
*297The note sued on was given in payment for wood, growing and standing upon a certain tract of woodland, sold by the plaintiff, Sentman, to the defendants Gamble and Logan. The subject-matter of the sale being growing wood or timber, it was a sale of goods only. Smith vs. Bryan, 5 Md., 141.
The plaintiff having proved the execution of the note, the defendants then offered in evidence a contract for the sale of the wood, which was in writing and dated the 26th of February, 1886. By this contract Sentman agreed to sell to Gamble and Logan “all the wood” (with the exception of certain rails and posts already cut, and the chestnut timber fit to make rails and posts) which he, Sentman, had purchased from T. Snowden Thomas, by agreement dated the 22d of February, 1886, “said tract of woodland lying north of the east and west road connecting the road from Bay View to North East with that from Bay Yiew to Charlestown,'except a few acres on the west of the. Bay View and Charles-town road, adjoining the land of S. P. Maffitt, for the sum of 8300.” By reference to the contract between Sentman and Thomas, which was also in writing, and was afterwards offered in evidence by the plaintiff, we find the same description of the tract except that the words “said Thomas’ tract of woodland, part of ‘Russell’s Union’ ” are used. So far as the description of boundaries is concerned the two contracts are identical. In neither of them is any boundary definitely described except the road referred to, and in neither of them is any mention made of the eastern boundary, separating the lands of Thomas from those of McDaniel.
Having offered this contract in evidence, Gamble, one of the defendants, testified that before the contract was signed he went with the plaintiff and Logan to the tract several times to examine it; that they walked over the land and examined the wood; that the plaintiff pointed *298out to them the boundaries and told them that the eastern boundary, between the Thomas tract and the land of McDaniel, toas marked by an old fence; that-neither witness nor Logan knew where the boundaries of the Thomas tract were, and that relying on said representation of the plaintiff in regard to the eastern boundary, witness signed the contract; that he and Logan then put men in the woods and cut timber next to the old fence, which plaintiff had pointed out to them as the true line; that he afterwards learned he had been trespassing on McDaniel’s land, and that the true eastern boundary line was to the westward of the old fence, and between that fence and the true line there were about t-welve acres of land which belonged to McDaniel; that he and Logan had cut on these twelve acres about 100 cords of wood which they were compelled to leave there, and that McDaniel had sued them for the trespass; that the wood on these twelve acres would cut 28 cords to the acre, exclusive of chestnut rail timber and posts, and was worth standing in the woods seventy-five cents a cord net; that when he learned that McDaniel claimed these twelve acres, and had had the true line established, he went to the plaintiff, and endeavored to have the matter settled, but without effect; that at the time the error was' discovered he had cut a portion of the wood on the true Thomas tract; that he then offered to Sentman to retire from the contract if he would pay him, but they could not come to terms and Sentman refused to leave the matter to be adjusted by arbitrators; that witness then thought he had better hold on to his contract and go ahead, and he then proceeded to cut the remaining wood on the Thomas tract and sold some of it as wood, and had other portions made into charcoal, and thought he had sold about 9000 bushels of charcoal. This witness also proved that a-few days before the note sued *299on became due, and before suit brought, he tendered the sum of $160 to the plaintiff which the latter refused to accept. The same facts as testified to by Gamble were also testified to by Logan.
The defendants then offered in evidence a survey and plat of the Thomas tract, showing its true eastern boundary as well as the location of the old fence, and proved hv the surveyor that there were twelve acres between the true line and this fence.
The plaintiff then proved by himself as a witness, that prior to the contract of the 26th of February, he had been negotiating with Thomas for the purchase of the rail and post timber on this tract for the purpose of filling a fencing contract with the B. & O. Railroad Company; that he had no use for the cord wood on the land, hut Logan and Gamble came to him and told him that if he would buy all the wood on the tract, they would purchase from him the cord wood for $300 and he could reserve the chestnut rail and post timber; that he knew nothing of the lines of the tract himself, but Thomas had walked with him over it, and had pointed out what he said were the boundaries, and pointed out the old fence as the boundary between himself and McDaniel; that he afterwards walked over the tract with Logan and Gamble and told them that Thomas had told him that this old fence was the eastern boundary of his tract; that he did not profess to know anything about the lines himself, but merely repeated to them what Thomas had told him, and told them that Thomas had so told him; that relying on what Thomas had told him, witness believed this fence to he the true eastern boundary, and so believing he had a large number of chestnut trees growing on the land between the true line as shown by the plat and the old fence, cut and made into posts and rails, a portion of which he had hauled off, and *300after the true line was discovered he had heen compelled to leave the rails and posts he had not hauled off, and to haul hack those he had taken away ; 'that after he had walked over the tract with G-amble and Logan as aforesaid, he bought from Thomas all the wood growing thereon for $500, by a written contract dated the 22nd of February, which he. produced and offered in' evidence. This contraet has already been sufficiently described.' The plaintiff further testified that he acted in perfect good faith in making the representations to Gamble and Logan in regard to the old fence as the eastern boundary; that he made it solely upon the representations made to him by Thomas and told them so at the time," and that he was as much deceived as they were, and lost his chestnut which he had cut; that after the survey, disclosing the error, had been made, he saw Logan and Gamble and offered to relieve them of their contract and pay them their expenses of getting the wood, if they would surrender the contract, but they refused to do so and said they would hold on to their contract. On cross-examination plaintiff admitted he was not the agent of Gamble and Logan to purchase the cord wood for them from Thomas, but that he had purchased it to make out of it what he could for himself by a resale to them. Boyd, another witness for the plaintiff, testified that he had by the orders and direction of Thomas cirt cross-ties on the land lying west of the old fence, and that McDaniel who owned the adjoining land had made a fuss about it.
The defendants then produced Thomas as witness, who testified that some months prior to the signing of the contract of the 22nd of February, he had sold plaintiff leave to cut chestnut for posts and rails ; that afterwards, and sometime before the contract was signed, plaintiff had offered, and witness agreed to sell. *301him all the wood on the tract for $500, including the rails and posts already cut; that on the day the contract' was signed the plaintiff came to him and asked him to have it put in writing, which was done, and both parties signed it; that he and plaintiff had been over the land several times prior to the purchase of the wood and he had pointed out the lines in a general way, but had never 'pointed out the old fence as one of the lines, but pointed out the beginning point as laid down on the plat, and told him, it was a due north and, south line between himself and McDaniel. Logan and Gamble further testified that the plaintiff had already purchased from Thomas before they approached him, and had heard him attempting to sell the wood to a man named Clayton before that time.
Such is the evidence on both sides as disclosed by the record. We have done the unusual thing of setting it out in detail in the opinion, because, having granted the motion for a re-argument, we desire the real merits of the case as disclosed by the testimony, as well as the grounds of our present decision, should clearly appear. It is to be especially noted that all this testimony was admitted without any objection on any ground to the admissibility of any portion of it for any purpose whatever, being made by the plaintiff.
Upon the testimony thus let in both sides asked instructions from the Court. The five asked by the plaintiff were all rejected, and of these the second, third and fourth have been abandoned in this Court. The stress of the argument made by the able counsel for the appellant, has been very properly addressed to the granting of the single instruction asked by the defendants, for we think it very clear that if this instruction be correct it covers the whole law of the case. By it the jury were instructed that if they believe from the evidence that Gamble and Logan *302were induced to enter into the contract of the 26th of February, 1886, by the representation of the plaintiff, that he was the owner of the wood on the tract of land mentioned in the evidence up to the fence laid down on the plat offered in evidence, and that hut for such representations they would not have entered into said contract, and if they further believe that the plaintiff was not the owner of said wood beyond the red divisional line on the east laid down on said plat, then the defendants are entitled to a deduction from the amount of the note sued on, to the extent of the value of the wood on.the portion of land between said fence and the. division line, and such reasonable expenses, if any, as the jury may find the defendants incurred in cutting the- wood on said portion of land, provided the jury further find that said representation was made by the plaintiff either fraudulently, or falsely in point of fact.
' This instruction places the right of recoupment or abatement of the purchase money on two grounds, ,/zrsi, if the jury found the representation was fraudulently made, and second, if they found it was false in point of fact, though it may have been made innocently and in good faith.
In regard to the first ground there is no dispute. It is conceded that if the representation was fraudulently made (and we may remark there was evidence from which the jury could have so found,) and the defendants were thereby induced to sign the written contract, the right of recoupment is unquestionable, because in that case the defendants could have sued the plaintiff in an action of deceit for the fraud he had perpetrated upon them which induced them to enter into the contract, and in order to avoid circuity of action, the law allows them to recoup the damages sustained by the fraud, when he undertakes to enforce against them the note obtained by means of the fraud.
*303But it is strenuously contended that if the representation was made innocently and in goodfaith, there can, in this case, be no abatement of the purchase money. The principal ground taken in support of this position is, as we understand it, that the written agreement is the only evidence of what the contract between the parties was; that by the true construction of this instrument the wood sold was the wood on the Thomas tract, and only embraced the wood within the true lines of that tract wherever they might be found to be; that if it was the intention of the parties on the one side to sell, and on the other to buy the wood up to the old fence, they should have so stipulated in the written agreement; that to allow to this antecedent representation the effect of making the contract a sale of the wood lip to the old fence, would be to vary or add a new term to the subsequent written instrument, in violation of the familiar rule that all antecedent negotiations and understandings are merged in the subsequent written agreement which is the only evidence of what the contract actually was, and hence this antecedent representation was only admissible upon the question of fraud, and was inadmissible and must be so treated- by this Court, for the purpose of affecting the written contract. We think this is a substantial and fair statement of the position contended for.
.Now assuming (but ex gratia argumenti only) that this representation has the effect of varying or adding to the written contract, and would have been inadmissible for that purpose if objection had been made to it on that ground at the trial, still the question arises, has this Court authority to decide in this case, that question, and treat the evidence as inadmissible for such purpose, when no such objection was made to it in the Court below?
*304This Court is strictly an appellate tribunal, and its power to decide certain questions has long since been . limited by statute. Thus in appeals from Courts of equity, it has been the law of the State since the year 1832, that no ojection to the admissibility of evidence shall be made in the Court of Appeals, unless it appears by the record that such objection has been made by exceptions filed in the Court of equity where the. case was tried. Code, Art. 5, sec. 26. Under this provision many decisions have been made in which this Court in obedience to this mandate of the Legislature, has found itself compelled to receive in the particular case, and give full effect to testimony which, if exception to it had been filed in the Court below, would have been ruled inadmissible under the plainest rules of evidence. In one case oral testimony as to a party having purchased land at a sheriff's sale, admitted without exception, was allowed to prove title in the purchaser notwithstanding the fact that sheriff's.sales are within the Statute of Frauds, and must be evidenced by some memorandum in writing. Spencer vs. Pearce, 10 G. & J., 294. In another case parol evidence that a lessor did not intend by a certain covenant in the lease, to bind his assigns, and that the words “heirs and assigns" were left out of the covenant, for this reason, having been admitted without exception, was allowed to have the effect of making the covenant personal in its character and not binding upon heirs or assigns. Gibbs vs. Gale, 7 Md., 76. In that case it was argued by counsel for the appellant that the facts thus proved by parol could have no influence upon the intrepretation of the covenant, because to allow them any would be to violate the established rule which prohibits the introduction of parol evidence to contradict, or vary a written instrument, and that though the appellant could not, under *305the statute, object in this Court to the admissibility of the evidence, he nevertheless had the right to insist that it should not be considered in the decision of the case. But the Court said they could not concur in this view, and “if the testimony he in the case it must be considered and allowed its full force.”
Again in appeals from Courts of law a statute has existed since the year 1825, which declares that “the Court of Appeals shall in no case decide any point or question which does not appear by the record to have been raised, or made in, and decided by the Court below.” Code, Art. 5, sec. 12. Under this it has been decided in cases at law, that evidence let in without objection, which was clearly inadmissible and would have been rejected had objection been made to it, is evidence in the cause, and must be treated as such by this Court, and allowed to have the same effect as if it had been admitted according to the strict rules of evidence. Farmers Bank of Maryland vs. Duvall, 7 G. & J., 78; Atwell vs. Grant, 11 Md., 101.
It frequently happens that evidence may be inadmissible if offered generally, and yet admissible for some special purpose. In such cases counsel for the party opposing its general admissibility, but conceding its admissibility for a special purpose, should, if he wishes the question to be decided by this Court, take the proper steps to that end. He should object to the testimony when offered generally, or ask from the Court an instruction confining its admission and effect to the particular purpose for which he concedes it to be admissible. But if evidence is let in generally without objection, and no attempt is made in the trial Court to confine or limit its effect, it is in for all purposes, and the decisions above cited are conclusive as to how it must be treated by this Court.
*306. Here the representation in.question was let in without objection, was in fact proved by both parties to have been made, and no instruction was asked and no attempt made in the Court below to coniine its admissibility or effect, or to have the jury instructed that they could consider it only in case they found it was fraudulently made. Being thus in, this Court must, under the authorities above cited, treat it as in for all purposes, without regard to its effect upon the written contract. Under the testimony thus admitted, and upon the assumption that the representation was made in good faith,'the real contract was a sale of the wood up to'the line of the old fence, and the wood growing on the twelve acres between that fence and the true eastern line of the Thomas tract as afterwards ascertained, formed part of the consideration of the note sued on. In the absence of fraud, no one can ‘doubt upon this testimony, but that such was the actual contract between them, and that they hoth so understood it when the note was given. ' The case then becomes a very plain one. The plaintiff’ sold to the defendants the wood growing on a certain tract of land and up to a certain line, and they gave him their note for the purchase money. It afterwards turned out that twelve acres of the wood thus sold did not belong to the plaintiff, and he had, therefore, no right to sell it. To the extent of these twelve acres there was a failure of consideration of the note sued on. The suit is between the original parties to the note, and we think there can he no doubt as to the right of the defendants to set up in this action, this partial failure of consideration, notwithstanding they have held on to their contract as to the residue of the wood. This proposition we consider a plain one. If authority upon the subject be needed we refer to the case of Groff vs. Hansel, 33 Md., 165, *307where the Court said that “where there has been a failure of consideration total or partial, or a breach of warranty, fraudulent or otherwise, all or any of these facts may be relied on in defence by a party when sued upon such contracts, and he shall not be driven to assert them cither for protection or as a ground for compensation in a cross-action.” If a vendor sells the wood growing on fifty acres of woodland, and the vendee gives him his note for the purchase money, audit after-wards turns out that the vendor had but forty acres, and suit is brought on the note by the vendor against the vendee, we hold that the latter may set up the partial failure of consideration in that action, even if he has proceeded to cut and take away the wood on the forty acres, and that he shall not be compelled to pay the note in full, and then sue the vendor for his breach of contract in reference to the ten acres. This proposition seems so consonant with reason and justice, that even if there has been any doubt upon the subject in other jurisdictions, we shall endeavor to make it the law in this State by the affirmance of this judgment.
(Decided 14th June, 1888.)We are all of opinion that the motion to dismiss must be overruled. The appeal was taken in due time after the judgment in favor of the defendants was rendered, and could not have been taken before.
Judgment affirmed.