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"Moral certainty” is a probability suff
ciently certain to justify action upon it. MOORAGE
"Reasonable and moral certainty" may be Wharfage synonymous, see Wharfage. said to be that degree of probability which
exists with such strength as to justify huMOOT CASE
man action upon it. Austin v. State, 64 S. E.
670, 6 Ga. App. 211. A "moot case" is one which seeks to get a judgment on a pretended controversy, when Where a fact established by evidence is in reality there is none, or a decision in ad- the only one that can reasonably exist under vance about a right before it has been ac- the circumstances, the truth is established to tually asserted and contested, or a judgment a “moral certainty,” which is the highest deupon some matter which, when rendered, for gree of certainty obtainable in human af. any reason, cannot have any practical legal fairs. Evidenciary circumstances relied on effect upon a then existing controversy. Ex and essential to establish any necessary eleparte Steele, 162 Fed. 694, 702.
ment in a criminal prosecution must, in or
der to be efficient, be shown to exist to the The fact that a suit may be a friendly satisfaction of the jury with the same degree one would not of necessity render it a “moot of certainty as the ultimate object of inquiry case,” which is defined as one which seeks to is required to be to warrant a finding in the determine an abstract question which does affirmative. Schwantes v. State, 106 N. W. not rest upon existing facts or rights. State
237, 244, 127 Wis. 160. v. First Catholic Church of Lincoln, 128 N. W. 657, 658, 88 Neb. 2.
A "mathematical demonstration" is whol“A 'moot case' is one which seeks to de- ly different from a “moral certainty.” Ev.
idence of demonstration relates to necessary termine an abstract question which does not rest upon existing facts or rights." "It is truths, truths as to which the supposition of universally understood by the bench and bar and cannot be true, but what is also absurd,
the contrary involves, not merely what is not that a moot case is one which seeks to get a judgment on a pretended contro- whereas moral evidence is the basis of conversy when in reality there is none, or a de tingent truth. It follows obviously that the cision in advance about a right before it has ilar classes of evidence are capable of pro
convictions which these distinct and dissimbeen actually asserted and contested, or a ducing are necessarily of very different najudgment upon some matter which, when rendered, for any reason cannot have any prac result, to which moral certainty, the highest
tures. In the one absolute certitude is the tical legal effect upon a then existing con-degree of assurance of which truths of the troversy." Where a request is made of a
latter class admit, is necessarily inferior. public officer to perform an act under a statute, and he, although believing that the Wills, Cir. Ev. 5. Moral certainty is that
full and complete assurance which admits of law requires its performance, refuses because of a doubt on the subject and because he no degrees, and induces a sound mind to act wishes the question to be quickly and finally it naturally and reasonably leads. 2 Stew
without doubt upon the conclusions to which settled by the decision of a court, a proceed- art's Elements, c. 2, § 4. It is apparent, then, ing brought by the state to compel such ac- that the precision attainable in the one case tion on his part is not fictitious. State v.
is of a nature of which the other does not Dolley, 108 Pac. 846, 847, 82 Kan. 533 (quot- admit. Bowman v. Little, 61 Atl. 1084, 1086, ing Adams v. Union Railroad Co., 42 Atl.
101 Md. 273. 517, 21 R. I. 140, 44 L. R. A. 273; Ex parte Steele, 162 Fed. 694, 701).
The term "moral certainty,” as applied
to the evidence in a criminal case, has the MORAL
same meaning as "reasonable doubt." State
v. Martin, 74 Pac. 725, 728, 29 Mont. 273; See Contrary to Good Morals.
State v. Wappenstein, 121 Pac. 989, 998, 67
Wash. 502; Stewart v. State, 115 S. W. 374, MORAL CERTAINTY
375, 88 Ark. 602 (citing Commonwealth v. See To a Moral Certainty.
Costley, 118 Mass. 1; Jones v. State, 14 “Moral certainty" is that degree of proof South. 772, 100 Ala. 88; Woodruff v. State, which the law requires of moral evidence. 12 South. 653, 31 Fla. 320; Carlton v. PeoMoral certainty is described as a state of ple, 37 N. E. 244, 150 Ill. 181, 41 Am. St. impression produced by facts in which a Rep. 346); Norman v. State, 74 S. E. 428, 10 reasonable mind feels a sort of coercion or Ga. App. 802. See, also, People v. Buettner, necessity to act in accordance with it. It is 84 N. E. 218, 220, 233 Ill. 272, 13 Ann, Cas. also declared to be a certainty that con- 235. vinces and directs the understanding, and “Reasonable doubt" and "moral certainsatisfies the reason and judment of those ty" may be used interchangeably. The writwho are bound to act conscientiously upon it. ers of legal dictionaries define “moral cerPeople v. Lew Fook, 75 Pac. 188, 141 Cal. tainty" to mean that degree of certainty 548.
which will justify a jury in grounding upon it their verdict. Bouvier defines the term to St. Rep. 329 (quoting and adopting definition mean: "Certainty that convinces and directs in Adams, Eq. [8th Ed.) 98). the understanding, and satisfies the reason
MORAL HAZARD and judgment of those who are bound to act conscientiously upon it. A certainty beyond
“ 'Moral hazard,' in insurance, is but a reasonable doubt.” Black's Law Dictiona- another name for a pecuniary interest in the ry defines the term as follows: "In the law of insured to permit the property to burn.” criminal evidence that degree of assurance Glens Falls Ins. Co. v. Michael, 74 N. E, 961, which induces a man of sound mind to act 972, 167 Ind. 659, 8 L. R. A. (N. S.) 708 (quotwithout doubt upon the conclusion to which ing definition in Columbian Ins. Co. of Alexit leads. Hendrix v. United States, 101 Pac. andria v. Lawrence, 2 Pet. [27 U. S.] 25, 49, 125, 129, 2 Okl. Cr. 240.
7 L. Ed. 335); Connecticut Fire Ins. Co. v. To say that proof of the fact must be Manning, 160 Fed. 382, 385, 87 C. C. A. 334, made reasonably certain is, by literal import
15 Ann, Cas. 338; Johnson v. Sun Fire Ins. of the words, tantamount to saying that the Co., 60 $. E. 118, 119, 3 Ga. App. 430 (quotproof must be made beyond a reasonable
ing and adopting definition in 2 Cooley,
Briefs on Ins. p. 1831 et seq.). doubt. This has been expressly held as to the phrase "moral certainty,” which is equiv. The term “moral hazard," as used in the alent to the words “reasonable certainty.” law of fire insurance, means the possibility A charge that if a passenger's sickness was of loss by fires of incendiary origin. Hartnot the result of her being put off the train, ford Fire Ios. Co. v. Dorroh (Tex.) 133 S. W. and that it was “reasonably certain” to have 465, 468. resulted from other causes, the carrier is not
MORAL INSANITY liable is erroneous as requiring proof beyond reasonable doubt. St. Louis, A. & T. Ry. Co.
“Moral insanity" or "medical insanity" is v. Burns, 9 S. W. 467, 468, 71 Tex. 479, 481.
a perversion of the sentiment and affections.
Taylor V. McClintock, 112 S. W. 405, 412, Refusal to give an instruction in a mur- 87 Ark. 243. der trial that the presumption of innocence “must be overcome by competent evidence MORAL MARRIAGE which convinces you of his guilt to a moral
"Moral marriage" was a term applied to certainty” is not error where an instruction a relation between slaves who, although they is given that “moral certainty, only, is re- had no power to make the marriage contract, quired, or that degree of proof which produc, yet came together and agreed to live as man es conviction in an unprejudiced mind." and wife. The essence of such an agreement State v. Megorden, 88 Pac. 306, 310, 49 Or.
was that it be bona fide, and that the parties 259, 14 Ann. Cas. 130.
act in accordance with it. Watson v. Ellerbe, An instruction to the jury that they 57 S. E. 855, 856, 77 S. C. 232. must be satisfied to a "moral and reasonable certainty” is the same in effect as saying MORAL OBLIGATION that they must be satisfied “beyond a rea- " "Moral obligations' are those arising sonable doubt.” Warren v. Gay, 51 S. E. from the admonitions of conscience, and ac302, 303, 123 Ga. 243 (quoting and adopting countability to the Supreme Being. No hudefinition in Dwight v. Jones, 42 S. E. 48, man law-giver can impair them. They are 115 Ga. 744).
entirely foreign from the purposes of the
Constitution.” Ogden v. Saunders, 12 Wheat. MORAL CHARACTER
213, 318, 6 L. Ed. 606 (Trimble, J., dissentSee Good Moral Character.
ing). MORAL DUTY
"Moral obligation" is defined to be an obThe term “performance of a moral duty,” ligation which cannot be enforced by action as applied to a meritorious consideration for but which is binding on the party who incura contract, is confined to three duties, of red it in conscience and according to natural charity, of payment of creditors, and of justice.” It is again defined as "a duty maintaining a wife and children, and un- which would be enforceable by law were it der the last head are included provisions not for some positive rule which, with a view made for persons, not being children of the to general benefit, exempts the party in that party promising, but in relation to whom he particular instance from legal liability. It has manifested an intention to stand in loco is held that such ‘moral obligation will susparentis in reference to the parental duty tain an express promise to pay.” Rathfon v. of making provision for a child. Where the Locher, 64 Atl. 790, 791, 215 Pa. 571 (quoting only consideration for a deed by a father to and adopting definitions from Bailey v. City his daughter was love and affection, the of Philadelphia, 31 Atl. 925, 167 Pa. 569, 46 daughter could not enforce a provision in Am. St. Rep. 691). the deed that the grantor would pay an in- A debt which a person "morally owes” cumbrance on the property at maturity.! is one which he owes in equity and good conFischer v. Union Trust Co., 101 N. W. 852, science, lawfully owes, but which he cannot 853, 138 Mich. 612, 68 L. R. A. 987, 110 Am. I be personally adjudged to pay. MacDonald
V. Tefft-Weller Co., 128 Fed. 381, 385, 63 C. Carrying a concealed weapon is not an C. A. 123, 65 L. R. A. 106.
offense involving "moral turpitude," and the A "moral obligation” on the part of the offender's conviction is not ground for his de
portation. state must have something more substantial
Ex parte Saraceno, 182 Fed. 955,
957. than legislation obnoxious to the fundamental law to rest upon; something more for a foun- The keeper of a disorderly house within dation or starting point than a statute which Pen. Code 1911, art. 496, defining a disorderly is itself immoral. A moral obligation can nev- house as any assignation house, or theater or er be deemed to rest upon the people of the house where liquors are kept for sale and state to discharge a contract made by the women of bad reputation are permitted, is Legislature in direct violation of the Consti- guilty of an offense involving “moral turpitution. Minnesota Sugar Co. v. Iverson, 91 tude," and a witness for accused is properly Minn. 30, 97 N. W. 454, 457 (citing Adsit v. cross-examined as to whether he is under an Osmun, 48 N. W. 31, 84 Mich. 420, 11 L. R. A. indictment for keeping a disorderly house. 534).
Bird v. State (Tex.) 148 S. W. 738, 739 (citing
5 Words and Phrases, p. 4580). Political obligations distinguished
The illegal sale of intoxicating liquors is “ 'Moral obligations are universal and not a crime involving moral turpitude within immutable, but ‘political obligations' must Kirby's Dig. $ 5247, authorizing the revocafrequently vary according to political circum- tion of a physician's license on his conviction stances.” Shanks v. Dupont, 3 Pet. 242, 263, of crime involving moral turpitude, the words 7 L. Ed. 666 (Johnson, J., dissenting). "moral turpitude” implying something im
moral, regardless of the fact that it is punMORAL TURPITUDE
ishable by law, and offenses against the lig. “Everything done contrary to justice, uor laws, such as illegal sales of liquor, are honesty, modesty, or good morals is said to be statutory crimes, and merely mala prohibita. done with 'turpitude."" Thus where an at- Fort v. City of Brinkley, 112 S. W. 1084, 1085, torney, acting as a notary public, falsely cer- 87 Ark. 400. tified, to affidavits to be used in the prosecu- Proof of a conviction of an illegal sale of tion of pension claims, that the affiants per intoxicating liquors is not admissible to imsonally appeared before him and were sworn peach a witness' credibility; the crime not and acknowledged the execution thereof, and showing “moral turpitude," which signifies an he was convicted in a federal court, under inherent quality of baseness, vileness, or deRev. St. U. S. & 4746, imposing a fine for such pravity. Swope v. State, 58 South. 809, 811, 4 an offense not exceeding $500 or imprison- Ala. App. 83. ment for a term not exceeding five years, he
"Moral turpitude" is an act of baseness, was convicted of an offense involving “moral
vileness, or depravity in the private and social turpitude," justifying his disbarment, under
duties which a man owes to his fellow men Ballinger's Ann. Codes & St. § 4775. In re Hopkins, 103 Pac. 805, 806, 54 Wash. 569 or to society in general, contrary to the ac(quoting and adopting definition in Bouv. between man and man. Though the point at
cepted and customary rule of right and duty Law Dict.).
which an act begins to take on the color of “Turpitude,” in its ordinary sense in- turpitude is not very definitely marked, yet volves the idea of inherent baseness or vile- the commission of the crime of larceny, ness, shameful wickedness; depravity. In whether grand or petit, undoubtedly involves its legal sense, it includes everything done "moral turpitude,” as that term is commonly contrary to justice, honesty, modesty, or good used. In re Henry, 99 Pac. 1054, 1055, 15 morals. The word "moral,” which so often Idaho, 755, 21 L. R. A. (N. S.) 207. precedes the word “turpitude," does not seem
Fighting not being an offense involving to add anything to the meaning of the term, "moral turpitude,” the state may not, on other than that emphasis which often results cross-examination of defendant, show that from tautological expression, within the di- he had paid several fines for fighting before vorce statute. Holloway y. Holloway, 55 S. the charge of assault for which he was being E. 191, 126 Ga. 459, 7 L. R. A. (N. S.) 272, tried. Pollok v. State (Tex.) 101 S. W. 231, 115 Am. St. Rep. 102, 7 Ann. Cas. 1164 (citing 232. 5 Words and Phrases, p. 4580; Webst. Dict.; Black, Law Dict.; Bouv. Law Dict.).
MORE Proof of a prior conviction of assault and battery was inadmissible to affect a witness' More necessary public use credibility, under the rule permitting evi- Under a Code provision allowing properdence of prior convictions of offenses involv- ty already taken for public use to be taken ing "moral turpitude," as such term signities for a “more necessary public use" than that an inherent quality of baseness, vileness, and to which it has been already appropriated, depravity not inherent in assault and battery. the land of a private person, subject to an Gillman v. State, 51 South. 722, 723, 165 Ala. easement for a public highway, may be taken 135.
by a water company for a dam and reservoir.
Marin County Water Co. v. Marin County, 79 | MORE OR LESS (Personalty)
In a contract for sale of goods, the qual
ifying words "more or less" merely provide More particularly
against slight and accidental variations in “Particularly” is defined as "in a particu
number, measure or weight. Hills V. Edlar manner; expressly with a specific refer; mund Peycke Co., 110 Pac. 1088, 1089, 14 ence or interest; in particular; distinctly.”
Cal. App. 32. The term “more particularly described,” as used in a contract to convey a farm "consist
The phrase "more or less," as used in a ing of two hundred (200) acres, more or less, contract for the manufacture and sale of
more particularly described,” in a glass, where the quantity is stated at 200,000 deed specified, means exactly described. square feet “more or less," means only such Sweet v. Marsh, 117 N. Y. Supp. 930, 934, 133 immaterial variations in quantity as would App. Div. 315.
occur naturally in connection with such a
contract. Hadley-Dean Plate Glass Co. v. More testimony
Highland Glass Co., 143 Fed. 242, 243, 74 C. An instruction was correct which, con- C. A. 462. strued as a whole, told the jury that, after
The words "more or less," in a contract rejecting the testimony of witnesses discredit for the sale of a designated number of staves ed by them, their verdict should be for claim- "more or less," all being branded, etc., are ant, if there was “more testimony" (that is, a merely precautionary so as to cover slight preponderance of testimony) tending to es- and unimportant inaccuracies and do not entablish the validity of her claim, and if there large the descriptive words or quantity. Litwas not, their verdict should be for the es- tle Rock Cooperage Co. v. Gunnels, 101 s. W. tate. Taylor v. Taylor's Estate, 101 N. W. 729, 730, 82 Ark. 286, 12 Ann. Cas. 293. 832, 835, 138 Mich. 658.
The terms “about" and "more or less," More than one
as used in a contract of sale of “about" 250 An allegation, in a pleading contesting tons of grapes "more or less," do not create the validity of an election in a school dis- such an ambiguity in the contract as to let in trict authorizing the issuance of bonds, that extrinsic evidence of previous or contempo"more than one" person voted in favor of the raneous conversations to show intent. Pebonds who was not a taxpayer of the district terson v. Chaix, 90 Pac. 948, 951, 5 Cal. App. is tantamount to an allegation that two votes 525. were cast by persons who were not taxpayers
Quantity identified by independent cirof the district. Hicks v. Krigbaum, 108 Pac.
cumstances, or determined by op482, 486, 13 Ariz. 237.
tion of buyer More than ten years
Where a contract is made to sell or furWhere defendant pleaded that he had nish certain goods identified by reference to been in peaceable possession of all the prop lot deposited in a certain warehouse, or all
independent circumstances, such as an entire erty described in plaintiff's petition, using and exercising ownership over same for more that may be manufactured by the vendor in than ten years next preceding the filing of a certain establishment, or that may be shipsaid suit," the phrase quoted indicates that ped by his agent or correspondent in certain It was not the intention of the pleader to limit vessels, and the quantity is named with the the time of possession to the ten years im- qualification of “about,” or “more or less," mediately preceding the filing of the suit. or words of like import, the contract applied Campbell Real Estate Co. v. Wiley (Tex.) 83 to the specific lot; and the naming of the S. W. 251, 252 (citing Hennessy v. Savings quantity is not regarded as in the nature of & Loan Co., 55 S. W. 124, 22 Tex. Civ. App. a warranty, but only as an estimate of the 591).
probable amount, in reference to which good
fa is all that is required of the party makMORE OR LESS
ing it. In such cases the governing rule is
somewhat analogous to that which is apThe phrase "more or less” following a plied in the description of land, where natunumeral conveys the meaning of an estimate ral boundaries and monuments control coursof probable distance or amount. The idea es and distances and estimates of quantity. of nearness is suggested but that of fixedness A contract for the sale of cotton linters stipis excluded, and, where the question at isulated that the seller confirmed the sale to sue in the controversy is one of distance, it the buyer of the "season's output of linis a question of fact for the jury to determine ters
estimated at 200 to 250” bales. as to what is a reasonable limit in connec- Held, that the contract was for the sale of tion with the subject-matter and surrounding the output, regardless of the number of bales, facts and circumstances of the particular especially in view of the evidence that the
Geiger v. Kaestner, 148 Ill. App. 529, buyer was buying linters generally, and want532; Santa Paula Commercial Co. v. Park- ed all he could get, and the buyer was rehurst-Davis Mercantile Co., 120 Pac. 347, 348, quired to take the output consisting of 66 86 Kan. 328.
bales in excess of the maximum estimate.
Loeb v. Winnsboro Cotton Oil Co. (Tex.) 93 Ga. 531 ; Smith v. Dudley, 69 Ga. 768 ; S. W. 515, 516 (quoting and adopting Braw-2 Warv. Vendors, f. 832; Finney v. Morris, ley, to Use of Myrick, v. United States, 96 U. 42 S. E. 1020, 116 Ga. 758; Wylly v. Gazan, S. 171, 24 L. Ed. 622).
69 Ga, 506, 516; Walton v. Ramsey, 50 Ga.
618; Adams, Eq. [8th Ed.) 177, 178; Spence MORE OR LESS (Realty)
v. Duren, 3 Ala. 251; Leyden v. Hickman, The words "more or less" ordinarily 75 Ga. 684; Seymore v. Rice, 21 S. E. 293, mean “about,” when used in a deed. Carling 94 Ga. 183; Yost v. Mallicote's Adm'r, 77 v. Wilson (Ala.) 58 South. 417, 418.
Va. 610). Where land sold was described by metes
The words "more or less," as used in a and bounds, the words "containing by esti- deed stating that the land conveyed containmate” a certain number of acres were equiva- ed a specified number of acres more or less, lent to the words “more or less." Mayer & are not construed to mean “as estimated," Schmidt v. Wooten, 102 S. W. 423, 427, 46 “as supposed," but are construed to mean Tex. Civ. App. 327.
about the specified number of acres, and are
designed to cover only such small errors of “In common-law conveyances the words
Win‘more or less,' while sometimes having prac- ton v. McGraw, 54 S. E. 506, 508, 60 W. Va.
surveying as usually occur in surveys. tically no effect, are frequently added to pre
98. vent the precise quantity named from being conclusive on the parties, and may operate to the expressed area of land stated in a
The term "more or less," when appended to make a sale of land one in gross instead of by the acre.” Ainsa v. United States, 161 U. deed, constitutes a recognition of the fact
that measurements of land are apt to differ, S. 208, 228, 16 Sup. Ct. 544, 40 L. Ed. 673.
and that men of intelligence and experience, When the description of the quantity of who are familiar with the premises, may not land conveyed by the deed concludes with agree in their estimates; and one who purthe words "more or less," the purchaser is chases land in bulk or as containing an esnot entitled to any reduction on account of timated number of acres can ordinarily oba deficiency unless it is very gross. Keenan tain no relief on account of any shortage v. Bird, 14 N. Y. Supp. 457, 60 Hun, 175, 177 ; which subsequent accurate measurement may Cunningham v. Millner, 82 Va. 526, 527.
disclose, but the introduction of the words Where an agreement for the conveyance “more or less" does not afford a shield of land describes it as 32 acres more or less, against liability for false representations, and and which does not describe the land by the mere fact that the deficiency is very metes and bounds, or by any fixed ascertain- large in proportion to the supposed quantity able monuments, the words “more or less” do is often treated as in itself evidence of fraud not weaken or destroy the statement of the or of mutual mistake, and in such case the quantity. Brooks v. Halane, 116 Ill. App. purchaser is entitled to relief by rescission, 383, 388.
or by an abatement of the price, or, where The qualification "more or less," specified
he has paid the price, an action at law for in a conveyance of land, will cover any de- damages. Boddy v. Henry, 101 N. W. 447, ficiency not so gross as to justify a suspicion 452, 126 Iowa, 31 (citing Paine v. Upton, 87 of willful deception or mistake a mounting to N. Y. 327, 41 Am. Rep. 371; Lewis v. Hoeldfraud. In the latter event the purchaser may N. J. Eq. 212, 38 Am. Dec. 514; Harrell v.
tke [Tex.] 76 S. W. 309; Couse v. Boyles, 4 have either a rescission of the sale or an apportionment of the price according to the Hill, 19 Ark. 102, 68 Am. Dec. 202; Triplett relative value. The use of the words con- 320; Hoback v. Kilgores, 26 Grat. [67 Va.)
v. Alden, 26 Grat. [67 Va.) 721, 21 Am. Rep. fers no additional right upon the seller. Kendall v. Wells, 55 S. E. 41, 42, 126 Ga. 442, 21 Am. Rep. 317; Camp v. Norfleet's 343 (quoting and adopting definition in Civ. Adm'x, 5 S. E. 374, 83 Va. 380; Fiske v. Code 1895, $ 3542, and citing 4 Kent, Comm. Fleming's Syndic, 15 La. 202; Estes v. Odom, (14th Ed.] 467; 1 Jones, Real Prop. $$ 398, 18 S. E. 355, 91 Ga. 600; Anthony v. Oldacre, 399, 400; Rawle, Cov. [5th Ed.] § 297; 34.Call [8 Va.] 489; Cravens v. Kiser, 4 Ind. Washb. Real Prop. [6th Ed.] $ 2322; 1 Warv. 512; Blessing's Adm’rs v. Beatty, 1 Rob. [40 Vendors, $ 381; Collinsville Granite Co. v.
Va.) 287; Crislip v. Cain, 19 W. Va. 438; Phillips, 51 s. E. 666, 123 Ga. 842; Jack Wilson v. Randall, 67 N. Y. 338; McCandless son ex dem. Suffern v. McConnell [N. Y.] 19
v. Young, 96 Pa. 289; Baltimore Permanent Wend. 175, 32 Am. Dec. 439; Powell v. Clark, Building & Land Soc. v. Smith, 54 Md. 187, 5 Mass. 355, 4 Am. Dec. 67; Wright ». N. W. 550, 51 Iowa, 244).
39 Am. Rep. 374; Hosleton v. Dickinson, 1 Wright, 34 Ala. 194; Seegar v. Smith, 3 S. E. 613, 614, 78 Ga. 616, 618; Beall v. Berk- The language "more or less,” used in ha 26 Ga. 567; Estes y. Odom, 18 S. E. contracts for the sale of la must be un355, 91 Ga. 600; Perkins Mfg. Co. v. Wil- derstood to apply only to small excesses or liams, 25 S. E. 556, 98 Ga. 388; Seymore deficiencies attributable to variance of instruv. Rice, 21 S. E. 293, 94 Ga. 184; Harrison ments of surveyors, etc., and these terms are v. Talbot, 2 Dana (32 Ky.] 258; Noble v. used to rather replace the idea of a contract Googins, 99 Mass. 231; Gauldin v. Shehee, 20 of hazard, and implies that there is no con