
    Long v. Millerton Iron Co.
    
    
      (Court of Appeals,
    
    
      Filed January 26, 1886.)
    
    Evidence — When pahol evidence inadmissible to vary written CONTRACT.
    Where a contract is perfectly clear and unambiguous, without patent or latent ambiguity, it speaks the language of the parties, and parol evidence is inadmissible to add to or take from its meaning. Rapallo, Andrews, and Danforth, J. J., dissent.
    On the 28th day of December, 1869, George P. Holcombe, as party of the first part, and the defendant, as party of the second part, entered into a written contract of which the following is a copy:
    “That the party of the first part, for and in consideration of $2.85 for the wood for 100 bushels of coal, hereby agrees to sell to the party of the second part all the hard wood on three certain pieces described as follows: One lot known as the ‘Mill Lot,’ ¡purchased of Henry and Ephraim Alderman, and containing 155 acres, be the same more or less; one lot; purchased of the same, containing 145 acres; and one lying north of these lots, but adjoining, containing 200 acres, more or less, and purchased of Rufus L. Mason and Charles Taylor. The party of the second part hereby agreeing to cut sufficient wood for at least 100,000 bushels of coal per year, the year commencing April 1, 1810; and it is further understood and agreed by and between the parties to this instrument that the measurement of the coal shall be ascertained by the measurement of the cars, or by a coal-measuring box at the kilns. The terms of payment to be as follows, viz.: $500 on the signing of this contract; $1,000 September 15th, next; and thereafter the wood to be paid for once in three months, commencing April 1, 1810. Semiannual interest on all advances to be paid by the party of the first part, and all advances to be paid back by the party of the first part, in equal amounts, quarterly, from the pioducts of the wood on the last 150 acres of land. The party of the first part having the privilege of reserving from the above-described lands logs sufficient for 100,000 feet of hardwood lumber, with the express understanding that these logs are to be marked and taken from the land no faster than the coal wood is chopped, and that they are to be cut .in a manner not to interfere with the chopping of the coal wood by the parties of the second part. The party of the first part reserving 1,500 cords hard-wood from the above lands, one-half to be cut on the south end of the tract, and the balance on the north end, or where the soft timber is 'being cut; this clause intending to stipulate that this reservation of wood shall be at a fair average distance from the depot, and in a fair average locality as to ground and feasibility of getting the wood.”
    On the 3d of January, 1872, the same parties entered into another contract, of which the following is a copy:
    “Whereas, George P. Holcombe, of Lebanon Springs, N. Y., and the MiUerton Iron Company, of North East, N. Y., have a contract for wood for charcoal, and now wish to annul said contract, by sale and purchase outright of said wood described in said contract; now, therefore, I, the said George P. Holcombe, hereby agree to seU to tbe said MiUerton Iron Company aU the hard wood on said tract of land as described in said contract, with the privUege of "ten years to remove the wood or coal, for the sum of $5,200, payments to be made as foUows, viz.: Mortgages of $3,500, to be assumed by the said MiUerton Hon Co., as foUows: $1,000 to Henry and Ephraim Alderman, April 1, 1872, and $1,000, April 5, 1873, to the same parties, and the sum of $1,500 to Charles Taylor, April 15, 1872, in all $3,500; and the balance of $1,700 as foUows: $250, January, 4, 1872; $500, January 15, 1872; and $950 from March 1 to March 10, 1882; or the said MiUerton Iron Company may have the privilege of having the standing timber on said lots estimated, and, upon an understanding and agreement as to the number of cords of hard wood standing on the tract being reached by the two parties, then the said Holcombe hereby agrees to discount 150 cords wood for every 1,000 cords wood on the tract; selhng the timber standing, after said deduction is made, to the said MiUerton Iron Company for $1.25 per cord, and giving them the privilege of ten years to remove the wood oi coal: in either case the mortgages to be assumed and paid by the MiUerton Iron Company, and the balance to be paid the said Holcombe, on the basis of the payments as specified above upon the terms of sale for $5,200. The MiUerton Iron Company on their part hereby agree to take the above-described wood on one of the above propositions, which proposition they accept to be made known and declared within thirty days from date, or by February 10, 1872. And it is expressly understood that any money paid the said Holcombe by the said MiUerton Iron Company on and after January 4, 1872, on account of said wood shall apply on this purchase as a payment. . And,, in case the above purchase is completed, then the said Millerton Iron Company, within a period of one year, agree to-build one more kiln at Danby, and increase their contract for coal from that point to 120,000 bushels per year, this to be done upon condition that the kilns at Danby are run to-advantage.”
    The defendant elected to accept the first proposition contained in the last contract to wit, to pay the gross sum of $5,200 for all the wood embraced in the contract, and such 'consideration was accordingly paid by defendant. The hard wood timber described in the first contract as reserved was worth, for lumber, $10 per thousand feet, and the cord-wood, $1 per cord, in the tree. The defendant cut and removed such timber and wood, and this action was commenced to recover damages for the cutting and wrongful conversion of the same, and also for cutting and removing, from about seventy-five acres of the land, hard-wood sprouts not suitable for coaling, the cause of action having been assigned by Holcombe to the plaintiff. The action was referred to a referee, and upon the trial the plaintiff claimed that the lumber and wood reserved in the first contract was not sold or conveyed by the second contract, and that the defendant had no right to cut the sprouts. It was conceded by the defendant that it failed to cut wood sufficient to comply with its agreement in the first contract during the first and second year after the contract was made, and that it bought wood of other parties, and that difficulties arose about keeping the wood purchased of plaintiff’s assignor separate from the other wood at the kilns where it was burned into coal, and about measuring it. The plaintiff made the following offers of evidence, stating that they were made for the purpose of interpreting the last contract, and not for the purpose of altering or varying it:
    “To show that the defendant stated that it desired to make a new contract for the purpose of obviating the diffi culties above stated and conceded, and that it desired, to have the time extended ten years in which to burn this wood, and that it would take the wood, by estimate, by the cord or quantity. This was prior to making the new contract.” “To show that it was understood and agreed by and between the parties to the contract that said sprout land should not be included within the contract, or the small wood thereon be cut and used by defendant. ” ■ ‘ To-show that subsequent to defendant taking possession of the wood lots described in the contracts, the defendant, through some of its agents, cut a portion of the wood upon this sprout land, and that the defendant’s agent, Walter Phelps, upon complaint being made by the plaintiff’s assignor, disavowed the act, and promised to put a stop to the cutting, and to pay for what had already been cut.” “To show that said Walter Phelps was the managing agent of the defendant in the purchase of its wood and coal, and was intrusted with the management of that entire department by the defendant.” “To show that it was solely for the purpose of obviating said difficulties and removing causes for complaint, and enabling defendant to have a longer time which to remove the wood, that it was authorized to cut and coal under the first contract; that the second contract was made and entered into between the parties on the 3d day of January, 18Y2, and offers to prove these facts by the declarations of defendant’s agent, Walter Phelps, made at the time.” “ To show that at the time the second contract was made the same reservations of timber for cord wood and lumber were made and intended between the parties in the second contract as in the first, and it was so understood and agreed; and plaintiff offers to show these facts by the declarations of the parties prior to and at the-time of making the contract ” To show that prior to the tune of making the second contract, the plaintiff’s assignor had made an agreement with Henry and Ephraim Alderman to saw the logs reserved in the first contract into timber, upon certain shares, and that defendant was aware of the existence of that contract at the time the second contract was made.”
    All the evidence thus offered was objected to by the-defendant, mainly on the ground that all the oral negotiations between the parties were merged in the written contract, and that that could not be explained, contradicted or varied by parol. The referee sustained the objections, and excluded the evidence, and plaintiff excepted. Ho other proof being offered, upon motion of the defendant the referee dismissed the complaint. The plaintiff appealed to the general term, and. from affirmance there, to this court.
    
      James Lansing, for appellant.
    
      JEsek Gowen, for respondent
    
      
       Affirming 30 Hun, 316, mem.
      
    
   Earl, J.

The only question for our consideration is whether the evidence offered and excluded by the referee should have been received. We think the second contract, which fixes the rights of the parties, is perfectly cleat and unambiguous; and that, under it, the defendant acquired the right to all the hard wood upon the lands referred to therein. Under- the first contract the defendant was to cus sufficient wood for at least 100,00G bushels of coal in each year, and was to pay therefor at the rate of $2.85 for each hundred bushels of coal, and the measurement of the coal was to be ascertained by the measurement of the cars, or by a coal-measuring box at the kilns; and Holcombe reserved the lumber and cord wood to be taken, under the circumstances and hr the manner particularly specified. The new contract was intended to accomplish the purchase outright • —that is, in bulk, at once and unconditionally—of all the wood described in the first contract. Now what wood was described in the first contract ? Clearly all the hard wood on the three parcels of land mentioned. Under the second contract it was optional with the defendant to take all the hard wood at the gross sum of $5,200, or at $1.25 per cord, the quantity to be estimated and thus ascertained by agreement.. Under the first contract it was optional with Holcombe to reserve or not the lumber mentioned. Was the defendant to pay the gross sum, $5,200, for the hard wood, leaving it still optional with Holcombe to make the reservation ? Was it to pay the gross sum. leaving Holcombe the right to reserve hard wood worth, in the tree, $2,500 ? Any reservation whatever of hard wood is clearly in conflict with the plain language of the last contract. That must be held to embody the agreement, as it speaks the language of the parties. There is neither patent nor latent ambiguity in the contract, and parol evidence was inadmissible to add to or take from the language used, and to give any other meaning to the contract than its language imports. There is no word or phrase therein which needs any explan ■ ation.

The language of the contract also includes in the sale the sprouts or young trees. They were not excepted, and it is neither impossible nor even highly improbable that they should be included, The defendant was bargaining for all the hard wood, and paying a gross sum therefor, and within the ten years the small trees would become much larger. It is not reasonable to suppose that parties making a contract to settle all doubts and to remove all difficulties would leave a chance for dispute over the size of growing small trees. We think there is no rule of law which would justify the reception of the evidence offered. If. by mistake or fraud, the written contract did not express the agreement of the parties, Holcombe should have had it reformed or corrected. As it is, it is a perfect answer to plaintiff’s claim.

The judgment should be affirmed, with costs. "

Ruger, Ch. J., Miller and Finch, JJ., concur; Rapallo, Andrews and Danforth, JJ., dissent.  