
    Luther Johnson v. Israel Pierce.
    In a written contract between P. and J., it was declared that P. had, on the day of its date, sold to J. one hundred head of good merchantable fat hogs, to be as follows—specifying what the hogs were required to weigh, and stipulating for their delivery, at a future time, at a place named: Held,—
    1. The contract on its face was not for the sale of specific but of indeterminate chattels.
    .2. In an action against J., for refusing to receive the hogs tendered by P. in performance of the contract, parol evidence, offered for the purpose of showing that the hogs owned by P. at the date of the contract formed part of the hundred head contracted for, was properly rejected.
    Error to the district court of Madison county.
    The original petition was filed by the plaintiff below, now the defendant in error, to recover damages against the defendant below, for the breach of a contract in writing, of which the following is a ■copy:
    *“ March 22, 1861. Article of agreement made and entered into this day between Israel Pierce and Luther Johnson, both of Madison county, Ohio, witnesseth: That said Pierce has this day ■sold to the party of the second part, one hundred head of good merchantable fat hogs, to be as follows: Fifteen head of the hundred to weigh 200 lbs., and upward, gross, each; the remainder, say eighty-five head, to average 270 lbs. gross, and no hog to weigh less than 250 lbs. gross. Said hogs to be delivered either at S. Boberts' |or A. L. Byan’s scales, and weighed, any time from the first day of November, a. d. 1861, until the twentieth day of December, a. d. 1861—the time to be at Johnson’s option as regards the time of delivery; for which the said Johnson agrees to pay the said Pierce four dollars per hundred lbs. gross weight. Said hogs to be paid .for at the time of delivery.
    “I. Pierce,
    “Luther Johnson.”
    
      The plaintiff averred that he performed all the conditions of the -contract on his part, and, at the request of the defendant, was, on twenty-ninth day of November, a. d.- 1861, at the scales of S. Roberts, ready and willing then to deliver said hogs, and tendered the same to the defendant, but that the latter refused to accept and pay for them., The damages claimed, four .hundred and twelve dollars ,and ten cents. ■ .
    The defendant in his answer set up two defenses. The substance of the first, and which alone it is material to notice, was, “ That the plaintiff did noj; perform the conditions of said contract on his part to be performed, and was not, on the twenty-ninth of November, 1861, ready at the scales of S. Roberts, and willing to deliver the hogs specified in said contract, and did not tender the same; and said' defendant did not refuse to accept said hogs and pay for them pursuant to said agreement. But, on the contrary, the defendant was ready and willing to accept and pay for said hogs, and demanded the same from the plaintiff, in pursuance of said contract, who wholly neglected and refused to deliver them.”
    On the trial a bill of exceptions .was taken by the defendant, *from which it appears that the plaintiff, having given evidence tending to prove all the allegations in his petition, the defendant, to maintain the issue on his part, offered to give parol evidence to the jury tending to show that, at the date of the contact, that the defendant had sold to the plaintiff sixty-seven head of hogs, and the plaintiff had on hand, in addition, twenty-three hogs of his own, fifteen of them being small hogs, which the parties supposed might be made to weigh two hundred pounds each, by the time named for delivery in the contract; and that the plaintiff had the privilege of purchasing ten head of hogs to make up the one hundred head named in the contract, and that the hogs so described, were tho identical hogs covered by and named in the contract, and which the plaintiff, on that day, and by the written contract, sold to the defendant; and that the defendant, on the 23d of November, 1861, at the scales of Roberts, was ready and willing to receive and pay for said hundred head of hogs.
    This testimony-was objected to by the plaintiff, the objection sustained by the court, and the testimony excluded from the jury. To this ruling the defendant excepted.
    The testimony of the parties being closed, the defendant requested the court to instruct the jury, “ That by the terms of the written ' contract between the parties, the plaintiff was bound to tender to» the defendant on the said 29th day of November, 1861, hogs which he owned and had on hand at the day of the date of said contract.”'
    This instruction the court refused to give, but charged the jury, “ That by the terms of said written contract, the plaintiff might tender to the defendant any one hundred head of good merchantable-fat hogs which conformed to the contract in weight and quality, without any reference to those he had on hand at the date of the contract.”
    To the refusal to charge as asked, and to charge as given, the defendant excepted.
    The jury returned a verdict in favor of the plaintiff for three-hundred and seventy-six dollars and twenty-five cents, for which judgment was rendered in his favor against the defendant.
    *On the petition in error of the defendant below, this judgment was affirmed by the district court, and he now seeks in this court the reversal of said judgment.
    
      G. IV. Olds, for plaintiff in error:
    T. The plaintiff in error was entitled to introduce parol evidence-to assist the court and jury in giving a construction to the contract, and in applying it to the subject-matter according to the intention of the parties at the time of making the contract. Hilderbrand v. Fogle, 20 Ohio, 147; Mason v. Cowen’s Adm’r, 1 B. Mon. 9; Bertsch v. Lehigh Coal & N. Co., 4 Rawle, 130; 28 Ala. 321; 26 Miss. 30; 22 Barb. 314; Ashworth v. Carleton, 12 Ohio St. 381; Rollins v. Claybrook, 22 Mo. (1 Jones) 405.
    2. The contract, properly construed, was for the sale of a specific lot of hogs, and could not be filled by the subsequent purchase, on the part of Pierce, of one hundred head of hogs of like weight and quality, but the contract required him to deliver the identical lot of hogs, or at least as many of them as were in esse, on November 29, 1861. 1 B. Mon. 7; 22 Mo. 405; Alexander et al. v. Dunn, 5 Porter(Ind.), 123; Bryan v. Lewis, 21 E. C. L. 467.
    
      JR. A. JSarrison, for defendant in error:
    The agreement in question is, per se, a complete and perfect contract. The delivery of any hogs, of sufficient weight, fat and merchantable, will satisfy the contract.
    The parol proof offered was properly rejected by the court below,. because it tended, not to apply the contract to its proper subject-matter, but to show that its subject-matter was wholly different from what its plain, unambiguous language imports, and in that manner change the legal rights and liabilities of the parties. Morris v. Edwards, 10 Ohio, 189; Smith v. Goddard, Ib. 178; Stone v. Vance, 6 Ohio, 247; United States v. Thompson, 1 Gall. 388; Selwood v. Mildway, 6 Ves. Jr. 306; Torbert v. Twining, 1 Yeates, 437; Thompson v. Ketchum, 8 Johns. 189; Hunt v. Adams, 6 Mass. 518; Chitty on Contr. 366; Russell v. Nicoll, 3 Wend. 112; Hilliard on Sales, 27.
   * White, J.

In this case two propositions are insisted on by the counsel of the plaintiff in error: 1. That the court erred in rejecting the parol evidence; 2. That the written contract, on proper construction, is for the sale of a specific lot of hogs, and could not be performed, on the part of Pierce, with hogs purchased subsequently to its date.

The correctness of the second proposition depends on the first; for, unaided by extrinsic evidence, it is clear that the written con- ^ tract is not one for the sale of specific, but of indeterminate chattels.

The ground on which it is claimed the evidence excluded .should have been received, is, -that it tended to identify the .specific hogs embraced in the contract, and thus enable it to be applied to its proper subject-matter.

But careful attention to the facts, sought to be proved, will show that, if they had been allowed to have the effect claimed for them, instead of its being the mere application of a written contract to its appropriate subject, it would have been the substitution of a parol agreement in contravention of the written one, on which the suit was brought.

The facts proposed to be proved were, in substance, that at the date of the contract the plaintiff owned ninety head of hogs. Whether any of them was then fat and merchantable, and of the requisite'weight, does not appear; but it does appear, expressly, that fifteen of the ninety were small, and not such as the contract required; that Pierce was to have the privilege of purchasing ten head to make up the one hundred named in the contract; and that this lot of ten which he did not own, the fifteen small hogs, and the remaining seventy-five owned by Pierce, constituted the specific hundred hogs which Pierce was bound to deliver and Johnson to receive by the terms of the contract.

To give effect to the claim which the counsel of the plaintiff in error deduces from this state of fact, viz., that the several parcels of hogs named, composed the specific hundred head mentioned in the contract, either the plaintiff would have been bound to accept the hogs under the contract, whether they were fat and merchantable and of the required weight, or not, and to accept compensation in damages in case of a ^deficiency; or the contract as to the delivery of the hogs must be construed to be conditional on the fact of all the hogs becoming fat and merchantable, and of the requisite weight, between the date of the contract and the time for delivery.

Either proposition is in plain contradiction of the writing.’

Johnson was not bound to receive hogs that did not fill the description in the written contract, nor was Pierce’s obligation to furnish the whole number called for, of the requisite quality and weight, contingent upon his buying the ten he did not own, or on his success in raising and fattening the ninety he had at the time the contract was made.

The position of the plaintiff’s counsel, moreover, assumes that the parties, in entering into the contract, contemplated a probable default in the delivery of the hogs, rather than the performance of the contract according to its terms. For the buyer could not be required to accept a less number than the whole hundred head; and if any part of them had been lost by death, or otherwise, during the eight months intervening from the date of the contract to the time of its performance ; or if any part of them had failed, at the time of delivery, to come up to the standard as to weight and quality fixed by the contract, the seller would have been disabled thereby from performing, and the buyer would have been deprived of what it was his object, by the contract, to obtain.

The general rule as to the admissibility of extrinsic evidence for aiding the construction of written instruments, has been thus stated by Tin dal, C. J.: “ The general rule I take to be, that where the words of any written instrument are free from ambiguity in themselves, and where external circumstances do not create any doubt or difficulty as to the proper application of those words to claimants under the instrument, or as to the subject-matter to which the instrument relates, such instrument is always to be construed according to the strict, plain common meaning of the words themselves ; and that, in such case, evidence dehors the instrument, for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument, is utterly inadmissible.”. Shore v. Wilson, 9 Clark & Finn. 565.

In the present case, so far as the evidence offered did not ^directly contradict the terms of the written contract, it was of no legal significance; and, if it had been admitted, it must have been wholly disregarded. The most that can be said of it is, that it would have shown that the parties expected the hogs referred to, to be used in the performance of the contract. If this were so, it ■ is equally true that they abstained from making what they expected a part of their contract.

The instruction asked is founded on Bryan v. Lewis (21 Eng. C. L. 467), and is not now insisted on. That case was overruled in Hibblewhite v. McMorine (5 Mees. & Wels. 462), and is clearly not law.

There was no error in the ruling of the court in excluding the evidence, or in instructing the jury, and the judgment will be • affirmed.

Scott, C. J., and Day, Welch, and Brinkerhoef, JJ., concurred.  