
    PERKINS MANUFACTURING CO. v. WILLIAMS.
    1. Whether or not a deficiency in the quantity of land sold by the tract and described as so many acres, " more or less,” is “ so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud,” is, ordinarily, a question of fact to be decided by the jury in view of all the circumstances of the particular case, and not one of law for determination by the court. An exception may arise “in such extraordinary and pronounced cases as would afford no room for difference of opinion.” Under the facts disclosed by the record, the present case falls within the general rule.
    2. Where a deed conveyed absolutely to the grantee and his heirs and assigns all the saw-mill timber on a given tract of land, with the privilege of boxing the same for turpentine purposes for a designated period, and with “ full privileges ” to the grantee, his heirs and assigns, “ of right of way for railroad, tramroads and wagon roads across said tract of land during the time of this saw-mill operation in that section,” trees of a specified size being expressly excepted from the operation of the deed, such grantee is not liable to the grantor for damages caused by 'the cutting or boxing of the excepted trees, during the period indicated, by a third person to whom the grantee had leased the turpentine privileges upon the land, the lease to that person itself expressly declaring that no' trees of this description were to be boxed by him.
    May 4, 1896. Argued at the last term.
    Complaint for damages. Before Judge Reese. Glascock superior court. August term, 1895.
    
      RcmUngs & Hardwiclc and Evans & Evans, for plaintiff. Jwnies Whitehead, for defendant.
   Simmons, Chief Justice.

The Perkins Manufacturing Company, in 1887, purchased from Williams the saw-mill timber on a certain tract of land described in the deed as “containing 672 acres more or less,” for which it paid him $1,300. It subsequently ascertained that there was a deficiency in the number of acres, and brought suit against Williams, alleging that “the discrepancy is so glaring as of itself to suggest fraud and deception; that the warranty in the deed was intended to cover not only the title to the land but also the number of acres conveyed,” and that by reason of the deficiency the plaintiff -was damaged $1,000. Williams in his answer admitted that there were only 465 1-2 acres. Upon the trial of the case, counsel for the plaintiff requested the court to charge the jury that “it being conceded by the plea of defendant that the tract of land contained 465 1-2 acres only, and that the amount stated in the deed is 672 acres more or less, therefore I charge you as matter of law that the discrepancy is so> gross as to justify the suspicion of wilful deception or mistake amounting to fraud.” The court refused to give this in charge, and the refusal is complained of as an error.

1. The words “more or less” will cover any deficiency' not so gross as to justify the suspicion of wilful deception, or mistake amounting to fraud. (Code, §2642.) Questions of fraud or of what amounts to fraud in a particular case are generally for determination by the jury. Each case presents its own peculiar facts. The deficiency in one case is greater than in another. The purpose for which the land is purchased is very different in one case from what it is in another. If a man should purchase land for a mill-site, the water-power would be the principal thing he would have in view; he would not care so much for the number of aeres as he would for the mill-site, and would therefore pay less attention to the representations of the vendor as to the number of acres than he would if he were buying merely for the purpose of cultivation. The suspicion of wilful deception or of mistake amounting to fraud “could not arise or be justified unless some suggestion of fraud or gross mistake would occur to the mind as probable in consequence of the magnitude of the deficiency, in view of the object of the purchase and all the attending circumstances;” and whether, in a given instance, such a suspicion is justified, is, in ordinary cases, as was said by Bleckley, C. J., in Estes v. Odom, 91 Ga. 605, “a question of fact to be decided by tbe jury on all tbe circumstances of tbe particular case, including as one of the main considerations tbe object of tbe purchase (if any in particular) as understood between tbe parties at tbe time of tbe transaction.” “In sucb extraordinary and pronounced cases as would afford no room for difference of opinion, tbat question could doubtless be decided by tbe court hypothetically as one of law. Tbe deficiency might be so slight and trivial on tbe one band, or so excessive on tbe other, as either to present nothing whatever for trial by tbe jury beyond ascertaining the extent of tbe deficiency, or limit their functions to tbat and to tbe ultimate question, together with the assessment of damages.” Under tbe facts in evidence, we think the present case falls within tbe general rule, and tbat tbe court did not err in refusing to give in charge tbe request above quoted.

2. Tbe deed made by Williams to tbe plaintiff conveyed to tbe grantee and its heirs and assigns, all tbe saw-mill timber on tbe tract described therein, except certain specified trees, with tbe privilege of boxing tbe trees for turpentine purposes for six years and with “full privileges of right of way for railroad, tramroads and wagon roads across said tract of land during tbe time of this saw-mill operation in that section.” Tbe trees excepted were one hundred to be marked by Williams, and. all trees “measuring under fourteen inches at usual stump height,” it being stipulated tbat no sucb trees should be cut or boxed. Williams in bis answer to the action pleaded, that the plaintiff had violated this stipulation, and had cut and boxed the hundred trees, be had reserved, thereby damaging him $500, and bad boxed all tbe trees on the land measuring-under fourteen inches at usual stump height, thereby damaging him $1,000. It appears from tbe evidence tbat the plaintiff bad sold to Blue & Co. tbe privilege of boxing tbe timber on the tract, except trees measuring under fourteen inches at usual stump height; and tbat the boxing of trees under tbat size, if done at all, was done by Blue & Co., and not by tbe plaintiff. The court charged tbe jury, in substance, that as it was conceded that tbe plaintiff released to Blue & Co. and thus permitted and licensed Blue & Co. to enter into possession of tbe premises under their conveyance, tbe plaintiff became answerable for tbe acts of Blue & Co. in tbe premises, to tbe same extent as it would be chargeable with its own acts operating under tbe conveyance, and if Blue & Co. cut and boxed trees under fourteen inches in diameter at the usual stump height while operating under tbe license of tbe plaintiff, tbe plaintiff was liable to tbe defendant for such damages as resulted therefrom to tbe defendant. Under tbe facts of tbe case we think this part of "the charge was erroneous. Tbe deed from Williams to tbe Perkins Manufacturing Company conveyed title to tbe timber to tbe grantee and its assigns. It also conveyed tbe right to build railroads and tramroads to tbe grantee and its assigns. Tbe grantee sold to Blue & Co. tbe privilege of boxing tbe timber for turpentine purposes. Under tbe deed from Williams, tbe grantee had tbe legal title to tbe standing timber, and tbe right to sell tbe privilege of boxing the trees, and therefore bad tbe right to make tbe stipulation as to cutting and boxing tbe one hundred trees and boxing’ trees under fourteen inches. . Tbe conveyance to Blue & Co. was not a mere license, but was a sale of so much of the timber as was necessary for turpentine purposes. (Coody v. Gress Lumber Co., 82 Ga. 793; Morgan v. Perkins, 94 Ga. 353.) Blue & Co. were not agents or mere licensees of the Perkins Manufacturing Company, nor were they tenants of tbe company. If therefore they violated tbe stipulation in tbe deed by cutting and boxing timber which bad been reserved, they, and not their vendors, were answerable for tbe damages occasioned thereby. Tbe stipulation in each deed was in tbe nature of a covenant running with tbe land. It was a covenant for tbe benefit of tbe land, and created a privity in estate between the original grantor and the assignees of the original grantee; and inasmuch as the Perkins Manufacturing Company did not break the covenant, but Blue & Co., its assignees, did, Blue & Co. are liable, and not the Perkins-Manufacturing Company. See 1 Warvelle, Vendors, 422.

J udgment reversed.  