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 1/2 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 *Page 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 designation of the land referred to. The trial court construed the agreement to amount to a covenant and we agree in that construction. In our 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 refer 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. But 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 the 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 *Page 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 done, Ward raised a question of the actual acreage, he engaged Peter Shockley to make a survey. Shockley, as he himself testified, had an assistant, Converse, run the lines of the timber from information given by others, and, Converse being out of the state as the trial approached, Shockley resurveyed the land a few days before trial, using Converse's notes and plat. Downing, the real estate agent, testified that he had seen the lines as run by Mr. Shockley, and that those he saw cut on the land were exactly the same as those Mr. Tom White had shown him, and which he, in turn, had shown Ward, the purchaser. It is first objected that this testimony of Downing's was inadmissible because his statement of the identity of outlines was a conclusion from facts rather than testimony to facts. We do not agree with that argument. We think it a direct statement of fact. Then, after the testimony of both Downing and Shockley just recounted, the plaintiffs offered the plat as the basis for calculating the acreage, and to its admission an exception was taken on the ground, as stated in the argument, that it is not identified by any one having knowledge of the facts as a true representation of the outlines of the area from which the timber was sold. We agree that there is no proper foundation for admitting this plat to be found in the testimony that Converse made it, originally, on statements of others. Only one of these other persons, Hillman, testified, and he was present during only a portion of the work of surveying, and pointed out only a few lines. The reported statements of the other persons was hearsay in this case. The plat, to *Page 23 be admissible, must be made, in effect, part of the testimony of a witness who had knowledge. 2 Wigmore, Evidence, secs. 790 and 793. If it was admissible at all, then, it was made so by the testimony of Downing that the outlines on which he sold the timber, at the direction of the owner, were exactly the same as the lines he saw cut on the land. If those lines cut on the land were identified as exactly the same as those on the plat, then, of course, there was legally sufficient testimony to identify the lines given at the sale with those on the plat, and the plat would be admissible. The question is, finally, whether, without testimony directly on the point, the lines cut on the land and the lines on the plat could be taken as the same so as to serve as foundation for admitting the latter. This Court has come to the conclusion that they could not, and that for this reason the ruling excepted to, in the third exception, was erroneous; and for the error the judgment must be reversed.
As the case must be retried, it is necessary to pass on other exceptions to rulings on evidence. There were nine exceptions to the exclusion of evidence offered by the appellants to show the location and size of a tract named "Great Swamp," or "Great Swamp Tract," and title lines of a large tract referred to as "Tract No. 10," both owned by Captain White, to identify the land referred to in the contract, and an exception to the exclusion of evidence offered to show that the seller owned land on both sides of the road mentioned in the contract. This evidence should, in the opinion of this Court, have been admitted, so far as any part of the land referred to in it might be identified as included within the "Swamp piece of land," "Swamp or tract of swamp land," and as the area from which the timber was bought and sold by the parties.
Evidence of the appellants as to circumstances under which the written agreement or receipt was prepared, in order, as the appellants state, to show the jury under what conditions the contract was prepared, seems irrelevant for that purpose. There was no attack on the validity and binding *Page 24 effect of the contract, no ambiguity in expressions to be resolved against the writer, and the offer would seem on its face to be merely one of parol evidence to affect the writing. We do not find error in the rejection of the offer.
Evidence for the appellees by an assistant of the surveyor, that Hillman had pointed out the lines of one portion of the tract, and that the remainder had been pointed out by others, was, so far as it went, proper introduction to the offer of the surveyor's plat, and the admission of it was proper, and harmless to the appellants, although, as we have found, it was not sufficient as foundation for the introduction of that plat. Two other exceptions were taken to exclusion of testimony which was immaterial and were not pressed in argument, and discussion of them seems unnecessary.
Judgment reversed, and new trial awarded, with costs to theappellants.