saying, in reference to the reliance element of a fraud claim, that “[a] fact is material if ... its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction”
How later courts described this case
- saying, in reference to the reliance element of a fraud claim, that “[a] fact is material if ... its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction”
- noting that “in some cases an unreasonably large deficiency in quantity may be an indication of fraud”
Written by the judges who cited it.
The opinion
Marbury, C. J.,
filed the following dissenting opinion, in which Collins, J., concurred.
Justice Holmes once admonished: “To rest upon a formula is a slumber that, prolonged, means death.” To this statement, Justice Frankfurter, in his concurring opinion in Kovacs v. Cooper, 336 U. S. 77 , 69 S. Ct. 448, 458 , 93 L. Ed. 513 , added: “Such a formula makes for mechanical jurisprudence.”
Merely because the words “more or less”, standing unexplained, have been construed by this court for more *517 than one hundred years to mean that the parties to a contract assume the risk of the quantity of land sold, does not bind us to adopt them as a formula in every case. In the case of Kriel v. Cullison, 165 Md. 402 , pages 411-412, 169 A. 203 , decided in 1933, where all the earlier cases are discussed at length, this court stated that the principle decided by them was that the words “more or less”, when used to qualify a representation of quantity in a contract to convey land will be construed “as indicating an intention on the part of the parties to the contract to assume the risk of quantity, which, until rebutted by evidence of a different intent inherent in the instrument or extrinsic to it, will be recognized and enforced.” (Emphasis supplied.) The words, therefore, are not sacrosanct, but are subject to extrinsic proof of the intention of the parties.
In this case, the purchaser, after he had seen the property, although he could not tell its size by looking at it, refused to sign a contract for its purchase unless the quantity of land was mentioned. The advertisement which caused him to go to see it said: “About 1 acre lot.” The representative of the sellers inserted in the contract the words: “1 acre, more or less”, and thereafter the appellant signed it and paid the deposit. There is no dispute about this, nor is there any dispute that, upon a survey, it was found that the actual area of the lot was only .465 of an acre. Whatever may have been his reasons (and there may have been many), it is clear that the purchaser was not willing to buy the property unless he got about an acre of land with it. Had the real estate agent written the word “about” instead of the words “more or less”, the case would fall clearly within the decision in Baltimore Permanent B. & L. Society v. Smith, 54 Md. 187 , where the court said in a case in which a sale was made of about 65 acres, and the survey showed the land contained only 36: “The force of the qualifying word, we think, is simply that while the parties did not bind themselves to the precise quantity of 65 acres, it imports that the actual quantity is a mere *518 approximation to that mentioned, that is to say, within a fraction of an acre, or perhaps it might cover a discrepancy of one or two acres.”
There is no magic in the words “more or less”, so that a vendee, ignorant of legal terms, can be bound by those words when, if the word used had been “about”, a different -situation would exist. That is not the law, and it could not be the law. What the law says is that the use of such words as “more or less”, or “about”, or “estimated” indicates that the purchaser is not so concerned about the exact acreage that he cannot be compelled to take the property if the acreage falls short, but this is subject to proof that if the intention is clearly otherwise, then the .approximate amount of .land must be delivered, or else there is no sale. This court has not rested its decisions upon a formula. In one of the very early cases, Hurt v. Stull, 3 Maryland Ch. 24, 28, decided in 1849, Chancellor Johnson referred to.the case of Jones v. Plater, 2 Gill 125, which had quoted with approval Judge Story in Stebbins v. Eddy, 4 Mason 414, 417 , 22 Fed. Cas. No. 13,342. The chancellor said this established the law of the State, but he added the significant words: “There may no doubt be cases in which the deficiency, from its magnitude, would raise the presumption of fraud, imposition or mistake, and in such cases, the words ‘more or less’ would not be permitted to stand in the way of relief.”
This is such a case, and the .jury should not have been restricted by the court’s charge to find actual fraud, but, on the contrary, should have been permitted to consider whether, under the circumstances, fraud, imposition or mistake could be presumed. The judgment should be reversed.
Judge Collins authorizes me to say that he joins in this opinion.