
    Julius G. Stranahan, Respondent, v. Elbert H. Putnam et al., Appellants.
    (Argued January 9, 1875;
    decided May term, 1875.)
    This was an action for the conversion of a quantity of coal and timber.
    Plaintiff gave evidence tending to show that he purchased of one Mason a quantity of standing timber which he cut, and manufactured a portion of it into coal; that he contracted, orally to deliver defendants 20,000 bushels of coal; that he delivered a portion, and that defendants, without authority, took possession of the wood cut and the coal undelivered, which was the property in dispute. Defendants introduced a written contract which they claimed was executed and delivered by plaintiff by which he contracted “ to make and deliver ” at defendants’ forge “ twenty thousand bushels of good merchantable hard-wood coal ” at a price specified. They also proved that they purchased of Mason 1,000 cords of wood, to be cut by them, the trees being upon land adjoining that upon which were the trees sold to plaintiff; and they gave evidence tending to show that the coal and wood taken came from the wood they had purchased. They then offered evidence that it was agreed, between them and the plaintiff, that the coal to be delivered by the latter under the contract was to be made from the wood so purchased by them. This was objected to on the ground that it tended to vary or modify the written contract and as immaterial, and was excluded upon the former ground. Held (Lott, Oh. O., and Dwight, O., dissenting), error.
    The commissioners dissenting held that, conceding the evidence did not tend to vary or modify the written contract, it was immaterial.
    
      Robert Hade for the appellants.
    
      R. 8. Hamd for the respondent.
   Reynolds, C.,

reads for reversal; Earl and Gray, CO., concur.

Lott, Oh. C., reads for affirmance; Dwight, O., concurs.

Judgment reversed and new trial granted.  