Shoemaker v. Cake

Citations

• 83 Va. 1
• 1 S.E. 387
• 1887 Va. LEXIS 31

Syllabus

<p>1. Contracts of Hazard—Sales in Gross.—A sale in gross, when applied to the thing sold, means a sale by the tract without regard to quantity, and in that sense is ex vi termini a contract of hazard. Russell v. Keeran, 8 Leigh, 9.</p> <p>2. Fraud—Damage—Right of action.—Fraud and damage must concur before right of action accrues.</p> <p>3. Idem—Elements of.—It is an essential element of fraud that the artifices employed to deceive were successful.</p> <p>4. Sales—Standing timber—Deficiency—Abatement—Fraud—Case at Bar.—Tract as “300 or 400 acres” and upwards, as “400 acres” of timber land is advertised for sale. The land was offered at auction, but not sold. Then the timber on the tract was put up, and purchased by C., an experienced lumberman. The quantity was 21Sf acres. But before purchase, C. went on the land and was shown the timber until he expressed himself satisfied. Immediately after purchase he was shown a paper by a competitor showing the tract to contain only 225 acres. After that, he completed the purchase by making cash payment and providing for deferred payments, and got off all the lumber he chose, (6,000 logs), and sold the residue standing, without paying $1 per log as it was removed, until the whole price ($3,000) was paid, according to the terms of sale. The vendor made no fraudulent representations.</p> <p>“Held :</p> <p>1. The sale was in .gross and of hazard. No abatement of price should be made. There was no fraud and no damage.</p> <p>2. Had there been fraud, C. was entitled to no relief, because, after its discovery, he for a long time acquiesced without complaint, and treated the lumber as his own.</p>