
    MARTIN v. COPE.
    June, 1863.
    A contract for sale of a “ carding machine and fulling mill,” and “ all the • fixtures belonging to the fulling mill and carding machine," should not be construed as including as fixtures those only which were annexed to the building at the time of sale; but may, by the aid of extrinsic evidence, be construed as including machinery which had been detached and removed without supplying its place.
    The rule requiring minutes of testimony given on a former trial by a witness since deceased, to present not his meaning, merely, but his language, in order to be admissible to be read on a subsequent trial, does not require the precise words, but substantially the language.*
    Joseph Sihley (for whom, on his decease, Robert Martin and Jane Sibley, administrators, were substituted as plaintiffs) sued David Cope for alleged conversion of a carding machine.
    At the second trial, Judge Buchan, county judge in 1845, before whom a previous trial had been had, was called as a witness to state what testimony had then been given by one Bristol, a witness, since deceased. Judge Buchan said," “ I can, by look7 ing at my minutes, state what the testimony of Bristol was; 1 have a general recollection of his testimony; I recollect the point to which his testimony was directed. I took, at the time, careful minutes of his testimony. I think the notes of the testimony taken by me on that occasion are correct, and contain substantially the language used by the witness.” On cross-examination Judge Buchan said he sometimes took Bristol’s words and sometimes used his own words to express Bris-. tol’s ideas. Under exception the judge was allowed to read his minutes.
    
      * See also Halsey v. Sinsebaugh, 15 N. Y. 485; McIntyre v. N. Y. Central R. R. Co., 37 Id. 287; and Graham v. Chrystal, vol. 2 of this series.
    
      The main question on the merits was, whether Sibley, by a contract of sale of his farm to defendant, “ together with all the fixtures belonging to .the fulling mill and carding machine,” passed the title to a carding machine, &e., which, previous to the sale, had been taken out of the building on the farm used and known as “ the carding machine ” or “ fulling mill,” and had been stored in another building.
    
      The supreme court held, that if the machine had been permanently removed from the building on an abandonment of the business, the contract of sale could not, as matter of construction, be held to include it. Under this instruction the jury had found for plaintiff at the trial, and the court held the instruction to be correct, although they were of opinion that the rule would have been otherwise if the removal had been temporary, with intent to replace the machine and operate it in the building.
    Defendant moved, on exceptions, for a new trial, which was denied, and judgment affirmed.
    
      
      G. G. Munger, for defendant, appellant;
    Insisted that the words of the deceased witness must be given, not their substance or effect. Pyke v. Crouch, 1 Ld. Raym. 730; Rex v. Joliffe, 4 T. R. 285, 290; Doncaster v. Day, 3 Taunt. 262; Wilbur v. 
      Selden, 6 Cow. 162; Clark v. Vorce, 15 Wend. 193; Huff v. Bennett, 6 N. Y. 337; Commonwealth v. Richards, 18 Pick. 434; Warren v. Nichols, 6 Metc. 261. And as to the merits, cited James v. Bostwick, Wright (0.) 142; Lowber v. Le Roy, 2 Sandf. 202; Teaff v. Hewitt, 1 Ohio St. 511; Murdock v. Gifford, 18 N. Y. 28.
    
      Joseph A. Stull, for plaintiffs, respondents.
   Balcom, J.

Joseph Sibley, now deceased, and the defendant. entered into a contract, in writing, under seal, dated October 7, 1836, by which the former, for a sufficient consideration, agreed to sell to the latter, his house, farm, and premises, situated in the towns of Chili and Riga, containing about three hundred and forty acres or upwards, with the crops growing on the same; all the lumber for the house; all the tools belonging to the saw mill; all the apparatus belonging to the grist mill; together with all the fixtures belonging to the fulling mill and carding machine, together with every article attached to the freehold. Sibley subsequently gave a deed to the defendant for the property, subject to the contracts.

It is apparent from the language of the contract that it was not written by a lawyer, or any person acquainted with the law of fixtures. It was conceded on the trial that it was drawn by Josiah Howell, who, at the time, lived in the neighborhood of the property, but had since died. It was proved that a building on the farm, which had been used in the wool-carding and cloth-dressing business, was called and known, at the date of the contract, as the fulling mill or carding machine, or the fulling mill and carding machine. But the building had not been used for that business for several years prior to that date; and the carding machine itself had been taken from the building, before the contract was made, and stored in the third story of the grist mill on the farm. The judge charged the jury, in substance, that if before the contract was made there had been a permanent removal of the carding machine from the carding machine building, upon an abandonment there of the carding business, the machine ceased to be a fixture, and became mere personal property, and did not pass to the defendant by the contract or deed. To which the defendant’s counsel excepted.

The meaning of the contraen cannot be satisfactorily ascertained without the aid of extrinsic evidence; and such evidence establishes, or at least strongly tends to establish, that the words, “ fulling mill and carding machine,” were used in the contract to designate the building in which the carding machine in question and the fulling mill had been situated and used; and that the former had been removed and stored in the grist mill upon the same farm, prior to (he making of the contract ; and by assuming that the words “ fulling mill and carding machine,” were employed to designate the building I have mentioned, the presumption is that the phrase “ fixtures, belonging to the fulling mill and carding machine,” as used in the contract, means the carding machine itself and other machinery that had been used in the carding machine and fulling mill building, and belonging therein when in their proper place. This interpretation of the contract is the only one that is consistent with the conduct of the parties. For the defendant assumed to own the carding machine in the fore part of the year 1837 or 1838, and disposed of it in one of those years; and Sibley did not bring this suit until February, 1843. And it is probable if Sibley had not intended to sell the carding machine itself to the defendant, it would have been expressly reserved in the contract, for the inference is quite cogent that Howell would have thought it necessary to reserve it expressly, to prevent it passing by the general language of the contract. It seems to me Sibley intended to sell, and the defendant in tended to purchase, by the contract, not only the fulling mill and carding machine building, but all the machinery on the farm, which had been used in such building as fixtures; and that such machinery is what they meant by the words fixtures belonging to the fulling mill and carding machine.” In other words, they supposed they correctly described the machinery that was formerly attached to and used in such building, when they designated the same as fixtures belonging to the same. It is not improbable that the defendant contemplated putting the carding and fulling works into operation again, at the time he contracted for the premises, and regarded the machinery which had been detached from the building, as fixtures belonging to the same.

For these reasons I am of the opinion that that part of the charge of the judge, above mentioned, misled the jury, and that he should have submitted to the jury, upon the evidence, the question whether the words carding machine and fulling mill,” as used in the contract, do not mean the building on the farm in which the business of carding wool and dressing cloth had been carried on; and if so, whether the phrase, “ fixtures belonging to the fulling mill and carding machine,” does not mean the carding machine in question, and other machinery that had been used in said building, though detached from it and housed, or stored, in some other place on the farm, at the date of the contract.

If these views are correct, the judgment of the supreme court should be reversed, and a new trial granted, in the action, costs to abide the event.

FiOSEKBAys, J., delivered an opinion in which he came to the same conclusion.

Emott, J.

I have no difficulty in agreeing that Judge Buchan was properly allowed to read his minutes of the testimony at the former trial. He stated that these minutes contained not substantially the meaning but substantially the language of the witness. The slight particulars of difference stated were wholly unimportant.

It is with considerable hesitation that I disagree to the ruling of the court below on the main question in the case. “All the fixtures belonging to the falling mill and carding machine,” seem to me to include everything which has been a part of the machinery of this building, and which had not been removed and its place supplied by something else. It seems to me that the conveyance meant to include all which was essential to complete the machinery of these mills, whether then in use, or in the building or not, but not machinery which had been removed to give place to something else. The court below put the title solely upon the question of annexation at the time. I think this was an error; and on this ground I agree there should be a new trial.

I may add that I doubt whether the particular machine in question here was shown at all ever to have been attached to or a part of this building.

Denio, Oh. J., and Davies, J., concurred in this opinion.

Weight, J., read a dissenting opinion, in which Maevin, J., concurred. >

H. R. Seluen, J., took no part.

Judgment reversed, and new trial ordered; costs to abide event.  