
    Ithra Brockett vs. Harris Bartholomew, Jr.
    Where a witness, on cross-examination, stated what he understood to be the meaning of a certain written contract, made jointly by himself and another with a third person, it was held that the party who cross-examined him, could not be permitted to give evidence that, when such contract was made, all the parties thereto understood it to have a meaning different from that stated by the witness.
    This was an action to recover the value of sundry goods. . Trial in the court of common pleas, before Warren, J., whose report of the case was as follows :
    It appeared in evidence, that before the 1st of April 1841, the goods mentioned in the plaintiff’s declaration were the property of the defendant, who, on that day, sold them to Daniel M. Chapin and Noah Wolcott, 2d; and that the defendant, at the same time, executed a lease to said Wolcott and Chapin, of a brick store, &c.,in the village of Cabotville, for the term of two years. This lease contained, among other things, these clauses: “ The said Bartholomew also agrees to sell to said Chapin and Wol-cott the grocery and crockery goods, wares and merchandize, now in his store, to the amount of $500 worth, to be selected by the lessees, and to be appraised at their prime cost at store.” “And the said Chapin and Wolcott, in consideration of the lease and covenants aforesaid, by the party of the first part, do hereby covenant and agree with the said Bartholomew, to pay to him, or his legal representatives, $66*66 on taking possession of the premises, $100 on each of the following days, viz. July 1st and October 1st 1841 ; January 1st, April 1st, July 1st and October 1st 1842; January 1st 1843 ; said sums to be payable on the premises.” “ They also agree to purchase of the said Bartholomew the said grocery and crockery goods, wares and merchandize in said leased store, to the amount and at the prices and conditions before mentioned.”
    It further appeared that, on the 4th of June 1841, the said Chapin & Wolcott conveyed to the plaintiff the goods mentioned in his declaration, by a mortgage, to secure payment to him of their promissory note if $900, dated April 1st 1841, and payable in one year.
    
      It further appeared that, on the 6th of June 1841, the defendant commenced a suit against the said Chapin & Wol cott, in which he sought to recover the value of the goods sold to them by him, as aforesaid, and caused an attachment to be made of the goods mentioned in the plaintiff’s declaration.
    The defendant introduced evidence tending to show, that after the aforesaid attachment, and before the commencement of the present action, an arrangement was entered into between himself and the said Chapin & Wolcott, by which it was agreed that they should surrender the aforesaid lease, on the 1st of July 1841 ; that the defendant should receive back the goods which he had sold to them, and which still remained on hand ; that they should account to him for the goods which they had sold; that he would deduct $100 from his claim against them; and that they should pay the plaintiff the amount of his claim : That this arrangement was made by the consent of the plaintiff; that by virtue of it, the defendant retained possession of the goods, and withdrew his aforesaid suit and attachment ; and that the plaintiff agreed to give up his claim upon said goods, and look to the said Chapin & Wolcott for security for his claim against them. *
    The plaintiff denied that he had assented to any such arrangement, or had agreed to give up his claim upon the goods mortgaged to him, except upon the condition that his claim on Chapin & Wolcott, the mortgagors, should be first paid. And he introduced evidence to show that he forbade the defendant’s taking the goods, and insisted on his right to retain them until the debt due to him should be discharged.
    Among other witnesses, the plaintiff offered the said Daniel M. Chapin, who, upon cross-examination by the defendant’s counsel, said he did not suppose, at the time when the defendant made the attachment before mentioned, or when the supposed arrangement aforesaid was made, that Wolcott and he were indebted to the defendant; that he supposed the payment for the goods purchased of the defendant by Wolcott and himself, as well as the payment of the rent of the premises leased to them by the defendant, was provided for by the terms of the lease aforesaid, and that he understood the proposition of the defendant to be, that he should, upon the surrender of the lease by Wolcott and himself, repurchase of them the goods then on hand, and pay them the sum of $ 100.
    The defendant then offered to show, that when said lease was written, it was understood by all the parties thereto, that the payments therein stipulated were applicable only to the rent of the demised premises; but the evidence was rejected.
    The jury were instructed, that by the terms of the lease, no provision was made for the payment of the price of goods; and that it was, in a great degree, immaterial what were the precise terms of the agreement made between the defendant and Chapin & Wolcott, after the attachment of the goods by the defendant; because, if any arrangement was made, by which the defendant was to become the owner of the goods, and the plaintiff assented to that arrangement, and agreed to relinquish his claim upon the goods, and, by virtue of that arrangement, the defendant was in possession of the goods, when this action was commenced, the plaintiff was not entitled to recover.
    The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the'ruling of the court in excluding the evidence above mentioned.
    
      Wells & Davis, for the defendant,
    cited Greenl. on Ev. <§> 455. 7 Howell’s State Trials, 1400. Atwood v. Welton, 7 Connect. 70. Ware v. Ware, 8 Greenl. 55. Commonwealth v. Turner, 3 Met. 25. Thomas v. David, 7 Car. & P. 350. Harris v Tippett, 2 Campb. 638. Tucker v. Welsh, 17 Mass. 166. Commonwealth v. Buzzell, 16 Pick. 158. Roscoe Crim. Ev. (2d Amer. ed.) 171.
    
      R. A. Chapman, for the plaintiff.
   Shaw, C. J.

The only question raised by the exceptions is, whether the testimony offered by the defendant, as to what was understood by the parties to the lease, at the time it was written, was rightly rejected. If the object was to prove what was the understanding of the parties, as to the object and intent of cei-tain stipulations in it, which is the obvious purpose for which it was offered, it is clearly inadmissible. It is equally inadmissible in a case between third persons, as between the parties to the contract. The question whether, by force of that contract, Cha-pin & Wolcott became debtors to Bartholomew for goods sc Id, was a que.- ion of law. The contract could not be explained or controlLd by the understanding of the parties, but must depend upon a just construction of its provisions.

If, as was intimated in the argument, the evidence offered was intended to bear on the testimony of Chapin, given on his cross-examination, and tending to contradict him, it was too general. It should have been pointed and limited to something previously said or done by Chapin, inconsistent with his present testimony, upon some point within the issue; whereas the inquiry was directed to the understanding of all the three par ties to the contract. But further; if the inquiry, put to the witness on cross-examination, as to his understanding of the contract, was intended to draw forth an answer bearing upon the issue, then the question itself was inadmissible, and the answer irregular, for the reason above stated, viz. that it would admit parol evidence to control the contract. If it was put to try the recollection, the accuracy, or the feelings and dispositions of the witness, then the answer was conclusive on the party cross-examining him, and no evidence was admissible to contradict the witness. See Spenceley v. De Willott, 7 East, 108. Ware v. Ware, 8 Greenl. 42. Commonwealth v. Buzzell, 16 Pick. 158.

The court are therefore of opinion that the evidence was rightly rejected.

Exceptions overruled  