Long v. Millerton Iron Co.

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, dis

avowed 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.