Pillsbury v. Locke , 33 N.H. 96 ( 1856 )

Eastman, J.

Several rulings were made by the court in the progress of the trial of this cause, and we think they may all be sustained except the first.

The parties had entered into a contract, by which the defendant was to take all the white oak upon the plaintiffs’ lot that was suitable for “ship timber.” As tending to show the meaning of the term “ ship timber,” a witness was permitted to testify that at the time the contract was entered into, the defendant said that the vessel for which he designed the timber was a small-sized one, and that he wanted the small timber upon the lot to put into the top of the vessel.

It is a principle too well settled to require discussion, that when a contract is reduced to writing, any parol agreement made at the time, varying the terms of the contract, cannot be shown by the parties thereto to change it; and evidence tending to show any such change or variation is inadmissible.

Among those who deal in the article, the phrase, “ ship timber,” has undoubtedly a somewhat definite meaning, as much so as “ merchantable boards,” or “ cord wood,” or the like ; and the declarations of the purchaser at the time of discussing the bargain, as to the uses to which he intends to put the articles, cannot be competent to change or vary the signification of the terms finally used in the contract. The meaning of words and terms used in making a contract or agreement must, in the absence of fraud, be determined by their known or proved signification, and not by the statements of the parties, or the conversations that they may have at the time the contract is made. If one phrase in a contract may be controlled or explained by the declarations of a party at the time it is entered into, then may others ; and the real contract made may be thus materially changed.

Suppose a person, in contracting for the ship timber on a lot, should say that he wished to use some small sticks for the making of a skiff or a row boat; or an individual purchasing cord wood should remark that he desired the limbs and brush for summer use, — would such evidence be competent as tending to show what the terms “ ship timber” and “cord wood” mean ? Evidently not. If one purchasing the ship timber on a lot should take therefrom other timber, not answering the description of that purchased, he would be liable therefor, but not on the contract. And so with this defendant; if he has converted to his use what he did not buy, he is answerable for the same, but not by virtue of the agreement made. This ruling of the court was wrong.

As to the next point: For the same reasons, the defendant’s proposition to show his contract with Fernald & Pettigrew, and the size of a certain vessel, could have no legitimate tendency to show the meaning of the terms he used. The plaintiffs were to judge from his language, and not from what he had done, or from what was passing5in his mind.

The memorandum book was admissible. It was so far an original entry as not to be objectionable on that account. Haven v. Wendell, 11 N. H. 112; Watson v. Walker, 3 Foster 471; Webster & al. v. Clarke, 10 Foster 245. And the objection to the bills used upon the trial comes within the same principle.

Batchelder’s testimony was rightly admitted. The size of the team and the condition of the roads had a tendency to show the quantity that he drew.

The testimony of the witness, who had been over the lot, and who described the size of the trees, was also competent. Though slight, it had some tendency to show what amount was on the lot.

There is no new principle involved in any of these rulings, and it is unnecessary to go further than to say, that they appear to the court to be correct. For error in the first ruling, however,

The verdict must be set aside.