and purchased of Rufus L. Mason and Charles Taylor. The party of the second part hereby agreeing to cut sufficient wood for at least 100,000 bushels coal per year, the year commencing April 1, 1870; and it is further understood and agreed by and between the parties to this instrument that the measurement of the coal shall be ascertained by the measurement of the cars, or by a coal measuring box at the kilns. The terms of payment to be as follows, viz.: $500 on the signing of this contract; $1.000 September 15th, next; and thereafter the wood to be paid for once in three months, commencing April 1, 1870. Semi-annual interest on all advances to be paid by the party of the first part, and all advances to be paid back by the party of the first part, in equal amounts, quarterly, from the products of the wood on the last 150 acres of land. The party of the first part having the privilege of reserving from the above-described lands logs sufficient for 100,000 feet of hard-wood lumber, with the express understanding that these 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 third day 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 Millerton 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 sell to the said Millerton Iron Company all the hard wood on said tract of land as described in said contract, with the privilege of ten years to remove the wood or coal, for the sum of $5,200; payments to be made as follows, viz.: Mortgages of $3,500, to be assumed by the said Millerton Iron Co., as follows: $1,000 to Henry and Ephraim Alderman, April 1, 1872, and $1,000, April 1, 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 follows, viz.: $250, January 4, 1872; $500, January 15, 1872; and $950 from March 1 to March 10, 1882; or the said Millerton Iron Co. 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 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; selling the timber standing, after said deduction is made, to the said Millerton Iron Co. for $1.25 per cord, and giving them the privilege of ten years to remove the wood or coal; in either case the mortgages to be assumed and paid by the Millerton Iron Co., 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 Millerton Iron Co. 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 30 days from date, or by February 10, 1872. And it is expressly understood that any money paid the said Holcombe by the said Millerton Iron Co. 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 fron Co., 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 cordwood, $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 about75 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 difficulties 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, disavowed 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 cause for complaint, and enabling defendant to have a longer time within 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 third day of January, 1872; 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 time 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. No 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. James Lansing, for appellant. Esek Cowen, for respondent. EARL, J. The only question for our consideration is whether the evidence offered and excluded by the referee should have been received. We think the second contract, which fixes the rights of the parties, is perfectly clear and unambiguous; and that, under it, the defendant acquired the right to all the hard wood upon the lands referred to therein. Under the first contract the defendant was to cut sufficient wood for at least 100,000 bushels of coal in each year, and was to pay therefor at the rate of $2.85 for each hundred bushels of coal, and the measurement of the coal was to be ascertained by the measurement of the cars, or by a coal-measuring box at the kilns; and Holcombe reserved the lumber and cord wood to be taken, under the circumstances and in the manner particularly specified. The new contract was intended to accomplish the purchase outright-that is, in bulk, at once, and unconditionally-of all the wood described in the first contract. Now, what wood was described in the first contract? Clearly all the hard wood on the three parcels of land mentioned. Under the second contract it was optional with the defendant to take all the hard wood at the gross sum of $5,200 or at $1.25 per cord, the quantity to be estimated, and thus ascertained by agreement. Under the first contract it was optional with Holcombe to reserve or not the lumber mentioned. Was the defendant to pay the gross sum $5,200 for the hard wood, leaving it still optional with Holcombe to make the reservation? Was it to pay the gross sum, leaving Holcombe the right to reserve hard wood worth, in the tree, $2,500? Any reservation whatever of hard wood is clearly in conflict with the plain language of the last contract. That must be held to embody the agreement, as it speaks the language of the parties. There is neither patent nor latent ambiguity in the contract, and parol evidence was inadmissible to add to or take from the language used, and to give any other meaning to the contract than its language imports. There is no word or phrase therein which needs any explanation. The language of the contract also includes in the sale the sprouts or young trees. They were not excepted, and it is neither impossible nor even highly improbable that they should be included. The defendant was bargaining for all the hard wood, and paying a gross sum therefor, and within the 10 years the small trees would become much larger. It is not reasonable to suppose that parties making a contract to settle all doubts and to remove all difficulties would leave a chance for dispute over the size of growing small trees. We think there is no rule of law which would justify the reception of the evidence offered. If, by mistake or fraud, the written contract did not express the agreement of the parties, Holcombe should have had it reformed or corrected. As it is, it is a perfect answer to plaintiff's claim. The judgment should be affirmed, with costs. RUGER, C. J., MILLER and FINCH, JJ., concur; RAPALLO, ANDREWS, and DANFORTH, JJ., dissent. (101 N. Y. 355) CAHILL v. SMITH.1 Filed February 2, 1886. SALE-BREACH OF WARRANTY-WHEN ACTUAL EVICTION NOT NECESSARY. Defendant sold store fixtures to plaintiff, with a covenant to “warrant and defend the sale," etc., and agreed to satisfy a certain chattel mortgage for $700. He did not do so, and the mortgage was foreclosed, and the fixtures sold to one Norton, to whom, on his claiming the property, plaintiff paid $1,000 to get it back, though the fixtures were not disturbed. Held, that plaintiff was entitled to recover $700, the amount of the mortgage, although no actual eviction had been proven, as his submission, though peaceable, was not voluntary. N. C. Moak, for appellant. W. F. McGoldrick, for respondent. DANFORTH, J. On the sixth of January, 1882, a mortgage was executed to one McElroy upon certain store fixtures. Afterwards the defendant sold them to the plaintiff at the price of $1,800; giving a written bill of sale, dated June 23, 1882, with a covenant "to warrant and defend the sale" thereof "against all and any person or persons," and a writing dated June 24, 1882, acknowledging payment of "the sum of $1,800, the consideration named in the bill of sale," and also certifying that the chattel mortgage above referred to "will hereafter be satisfied by me." These papers were signed by the defendant. In December, 1883, the debt being unpaid, the mortgage was foreclosed by its then owner, and sold to one Norton for $700, the amount due on the mortgage. He claimed the property, and the plaintiff paid him $1,000 to get it back. It appeared that Norton did not in fact remove the fixtures, and that the plaintiff's business, in which they were used, was not interrupted. This action was for damages by reason of the breach of defendant's agreement. The facts were not disputed, and the trial court held the plaintiff entitled to recover, but only $700, the amount due on the mortgage, and directed a verdict in his favor. Upon the trial the defendant claimed, among other things, that no actual eviction had been proven, and the necessity for this presents the only point made in support of this appeal. We think it is without merit. The title to which the plaintiff yielded was paramount to that acquired by him from the defendant, and he was not required to forcibly retain possession, or by violence resist the lawful demand of the purchaser. He could not withhold the property without becoming a wrong-doer, and his submission, therefore, although peaceable, was not voluntary. Under such circumstances the right of a purchaser for redress for breach of a warranty of title is well settled. Bordwell v. Collie, 45 N. Y. 494; McGiffin v. Baird, 62 N. Y. 329. In the present case, however, the plaintiff was not only deprived of his title by enforcement of a valid prior mortgage and sale under it, but regained a right to its possession only by paying money upon an obligation which 'Affirming 31 Hun, 172, mem. the defendant had expressly agreed to satisfy, but did not. There was a breach of both agreements, and the plaintiff justly entitled to recover. The judgment should be affirmed. (All concur.) (101 N. Y. 348) GRIFFIN, Receiver, v. LONG ISLAND R. Co.' 1. REPLEVIN-EVIDENCE. Filed February 2, 1886. Plaintiff sued to recover two cars, which he claimed as the property of the railroad of which he was receiver. On the trial, under a general denial, defendant offered to prove that it had title from a railroad owning the cars previous to their being sold to plaintiff's railroad, and also offered to prove title in a railroad from which defendant leased them; both of which offers, under objection, were excluded, as not set up in the answer. Held error. 2. SAME-GENERAL DENIAL-WHAT MAY BE SHOWN./ The action to recover a chattel is substantially a substitute for the former action of replevin under the Revised Statutes, and, as this action was for the wrongful detention of the cars, the defendant, under his general denial, was entitled to controvert by evidence everything which the plaintiff is bound in the first instance to prove to make his case. Edward E. Sprague, for appellant. A. W. Weller, for respondent. EARL, J. This action was brought to recover the possession of two railroad cars. The plaintiff in his complaint alleged that he was the receiver of the Southern Hempstead Branch Railroad Company, and that he, as such, became entitled to the two cars; that sometime between the first of July, 1875, and the first of July, 1878, the defendant took from the possession of his railroad company the two cars, then the property of that company; that the cars were in the possession of the defendant, and had been for several years, but that the defendant refused to deliver the same to the plaintiff, although, before this action was commenced, he made a demand in writing upon it so to do, and that it unjustly detained them from him. There is no allegation in the complaint that the defendant wrongfully took possession of the cars, or wrongfully became possessed of them. The only wrong alleged is the refusal of the defendant to deliver the cars to the plaintiff upon his demand, and the detention of them from him after that. The defendant in its answer alleged that it had no knowledge or information sufficient to form a belief as to the truth of the allegation contained in the complaint of the appointment of the plaintiff as receiver; admitted that the plaintiff had made a demand in writing of it to deliver the cars, and that it had not delivered them; denied, on information and belief, each and every allegation of the complaint not before admitted or controverted; alleged, on information and belief, that the cause of action set forth in the complaint did not accrue within six years before the commencement of the action, and that the property referred to in the complaint had been in the possession 1Reversing, 34 Hun, 632, mem. |