Kerl v. Smith

Mates, J., delivered the opinion of the court. This contract is ambiguous in some of its aspects, but it is plain that the parties thereto intended that the title to the horse should remain in the seller until the horse had been paid for, either in timber of the value of $100, or in so far as the value cf the timber would go to make up the $100, the balance to be paid in money. Any other construction of the contract narrows its meaning to such an extent as to nullify its plain intent. [832] Under numerous decisions of this court, not necessary to be bere cited, but which are found in the brief of counsel for appellant,, this court has held that the seller, under a contract of this kind,, could maintain the action of replevin. •• It was competent for the plaintiff to show what was meant by the word “timber” in this contract, and it was error for the court to exclude testimony offered for this purpose. The use of the word “timber” in the contract, with nothing in the. contract to explain what kind of timber is meant, is not so accurate a designation of what was sold as to preclude investigation as to what was meant by it in this ambiguous contract. It was permissible for plaintiff to show what particular business he was engaged in and known- to defendant, and what the common acceptation of the word “timber” meant in that business and at the place where he was conducting it. Such testimony is in no sense contradictory of the terms of the contract, but it is essential to explain its meaning, since the contract itself does not do that. Reversed, and remanded.