
    Webster & Hubbard v. James R. Paul.
    
      A contract in writing provided that hogs were to be shipped to New York by one of the parties, who had made an advance on them to the other party. Evidence was offered to show that there were two usual and ordinary routes for shipping hogs, and that, at the time of making the written contract, it was verbally agreed that one of the routes should be selected: Held, that the evidence was inadmissible, as going to vary and limit the written contract between the parties.
    Error to the district court of Knox county.
    James R. Paul sued Daniel A. Webster and Jasper M. Hubbard, as partners, under the firm-name of Webster & Hubbard, on an account connected with a transaction in hogs between the parties.
    Webster put in his own answer, and it is claimed, in substance, that there was no partnership between him and Hubbard in the transaction; that there was a written contract between him and Paul for the sale and delivery of *the hogs, and that the contract had been violated by Paul, and that there was a large sum due him (Webster), for which he asked for a judgment against Paul.
    Hubbard, in his answer, denied that he was indebted to Paul in any sum, and denied that he was a partner, or had any interest in the hogs at the time the contract was made by Webster and Paul.
    On the trial, at the June term, 1857, of the district court, certain •evidence was offered by the defendants and excluded by the court, and a verdict returned for the plaintiff.
    Thereupon the defendants moved for a new trial, on the ground, that the court erred in overruling the testimony offered by them. The court overruled the motion, and entered judgment on the verdict. The error now relied on is, that the court erred in not granting a new trial.
    There were two bills of exceptions taken, embodying the evidence that was not permitted to go to the jury.
    The first one shows that, after the plaintiff had rested, the defendants offered in evidence a writing, of which the following is a. copy:
    “Received of D. A. Webster three hundred and fifty-four hogs,, gross weight 57,200 lbs., which he is to ship through to New York, and do the best that can be done with them in the market; and said Paul has advanced on them $1,400.
    
      “April 25, 1854. J. R. Paul.”
    The plaintiff had before given evidence tending to show that he¡ had, on the 21st of April, 1854, received of the defendants three hundred and fifty-four hogs, advanced on them $1,400, and agreed to ship them to New York and dispose of them, and account for their proceeds, and that he was to have fifty dollars for his commission.
    The defendants, after they had given in evidence the above writing, called a witness, and offered to prove by him that, at the time the contract was made by the parties *and the writing-given, it was agreed by-them that the hogs should be shipped to-New York byway of the lake, but that, in point of fact, the plaintiff shipped them all the way by railroad, and that by reason thereof the expenses had been greatly increased. This evidence-was objected to, on the ground that it contradicted or varied the-writing, and was not admissible under the pleadings, and was rejected by the court.
    The second bill of exception shows that the plaintiff gave evidence tending to show that the defendants were in partnership on the 21st of April, 1854, in the lot of hogs in dispute; that the-plaintiff had never before done any business with the defendants, and that he made the arrangement with them in regard to the-* hogs by which he advanced $1,400, and was to ship the hogs to New York. He also proved that Hubbard' had said, prior to the 21st of April, 1854, that he had an interest of $800 in these hogs.
    And thereupon the defendant Hubbard gave evidence tending to show that he had had an interest in said hogs prior to the elate of the alleged contract with the plaintiff, but that he had sold out his interest prior to the 21st of April, 1854.
    The said Hubbard called two witnesses, and offered to prove by them, that prior to the contract made with plaintiff and Webster, in dispute in this case, they had severally heard both Hubbard and Webster say, in a conversation between said Hubbard and Webster, that they had dissolved their partnership in said hogs, and that Webster had purchased the interest of Hubbard in them, and that Hubbard had no further interest in them. These conversations were had when the plaintiff was not present, and before the agreement was made which was the foundation of this suit. This evidence was rejected, but the ground of objection is not stated in the record.
    A petition in error to reverse the judgment of the district court, was filed in this court.
    
      *Delano, Sapp & Smith, for plaintiffs in error.
    
      H. Gurtis & Devin, for defendant in error.
   G-holson, J.

The contract in writing shows that Paul had made an advance on hogs, which he was to ship through to New York, and do the best he could'with them in the market. We infer from the statements in the record that there were two routes for the-shipment which the parties intended should be made—one by railroad and steamboat, and the other overland, by railroad only. The object of the evidence offered, as shown by the first bill of -exceptions, was to restrict'Paul in‘shipping the hogs to the former of the two routes.

It is claimed for the plaintiffs in error, that there was a latent ambiguity; that there were two routes to New York well known to-the parties; that the writing did not specify one or the other, and therefore it might be shown which the parties intended. But, we-think there is a misapprehension as to the meaning of a latent ambiguity. “ A latent ambiguity is where you show that words apply equally to two different things or subject-matters.” Smith ,v. Jeffryes, 15 M. & W. 561. The things must be different, and the parties must, on account of such difference, have intended one and ■not the other. It is not a case of latent ambiguity, whore, according to the language of the contract, the parties.may have intended •either of the two things in which the difference is claimed to exist. 'Thus in the case just cited, where the contract was to deliver “ware potatoes,” and evidence was offered to show that there were ■■two kinds of “ware potatoes,” known in the market as “regent’s -wares” and “kidney wares,” and that the former were intended, it was held, that there was not a latent ambiguity, and that the evidence “ went to vary and limit the written contract between the parties.”

Upon a like principle and distinction, stands the case of a written contract to do a particular thing where there are *two usual and ordinary modes in which it may be done. The party upon whom performance devolves, may adopt either. If, in this case, it might be an advantage to Paul to select one or the other of the two routes, as for example on account of its being more rapid, and thereby securing him an earlier return of the money he had advanced, he had the right so to do, according to the terms of the written contract. That he might properly have done so under that contract, is ^admitted by the offer to prove a verbal contract which would re.strict the right. To allow this would, we think, in the language ■before used, vary and limit the written contract between the parties.

Our attention has been directed to the case of Barrett v. Allen, 10 ■Ohio, 426. In that case, -evidence was received to explain the meaning of the expression “fair wholesale factory prices.” The words had no definite, precise meaning, and therefore required explanation. This might have been given by showing a general ■usage and practice in the particular trade or business. Lewis v. Marshall, 7 M. & G. 729-744; Syers v. Jonas, 2 Exch. 111-116; Brown v. Byrne, 3 Ell. & Black. 703-715. So it is permissible “to ■show in what sense words are used, by showing what the situation ■of the parties was at the time.” Bainbridge v. Wade, 16 Q. B. SOTS. Evidence of the circumstances and relation in which the ■parties stood, may be let in to explain the meaning of language whenever it tends to throw light upon that meaning. Id. 71 Eng. Com. L. 101, note, and cases cited. “Parol evidence was clearly .admissible to show the circumstances under which the contract was made, and' the relation of the plaintiff and defendant to it, and to ■each other, in respect of it.” Humphrey v. Hale, 7 Ell. & Black, 266-272. According to these rules, the evidence in the ease of Barret v. Allen was properly received. Something was said, by the judge delivering the opinion, as to there being a latent ambiguity. We think the case more properly came within the rules which have been stated. But in no view, according to the *proper me'aning of a latent ambiguity as before explained, would that case reach such a case as the present. The parties in that case could not have intended either of the two prices proved, but must have intended to provide for one price only.

It is also alleged as error, shown by the second bill of exceptions, that the court refused to receive evidence of a conversation between the defendants in the action, showing that they were not jointly liable. The declarations accompanied no act,, but referred to past transactions. It is said, however, that they were admissible :as being against the interest of the parties, and on the ground of the extreme improbability of their falsehood. There is a rule which .allows declarations against the interest of the persons making them, and for that rule the reason stated is given. 1 Greenl. Ev., :sec. 147. But that rule requires the declarant to be deceased. Here ■he is living, is a party to the record, and, as the law now stands, might have been examined as a witness, and very probably was.

We think there was no error in this case, and the judgment must be affirmed.

Brinkerhoee, C. J., and Scott, Sutlife, and Peck, JJ., concurred.  