Kimball v. Waterman

When a written contract for the sale of standing timber is unambiguous on its face, but it is found that there are two or more lots to which its terms will apply, oral evidence is admissible for the purpose of showing which tract was intended.

Trespass de bonis asportatis. Plea, the general issue, with a brief statement alleging that the defendant cut and removed the timber in question by virtue of a written contract with the plaintiffs. Trial before Pike, J., at the November term, 1904, of the superior court, and verdict for the plaintiffs. In 1901, the plaintiffs owned two lots of land in West Lebanon, one north of the cemetery and the other in “ the Cien.” Part of the pine timber had been cut and removed from each lot, and that which remained was scattered over the lots in small clumps and extended areas. October 28, 1901, the defendant contracted with the plaintiffs as follows: “This is to show that Cornelia and Eunice M. Kimball have sold to T. P. Waterman one lot of pine timber situated on the Kimball property north of the cemetery and one lot of pine timber situated in the Glen, so-called, west and southwest of the property owned by Mrs. Marion Crawford, for and in consideration of two hundred dollars paid by Mr. Waterman to the Misses Kimball.” In 1902 and 1903, the defendant cut and removed most of the pine timber from these lots and sold the same. He claimed that the contract entitled him to cut all the pine timber on the “ Kim-ball property north of the cemetery,” and excepted to the introduction of oral testimony tending to prove what portion of the pine timber thereon was the subject of the sale.