Tins was an action of trover, for a quantity of logs, the facts in which are sufficiently stated in the opinion of the Court, which was delivered by
Emery J.—This is an action of trover, for a quantity of logs cut on township No. 1, in the 8th range, previously to the 1st of January, 1834, but a part of which were removed after that time. On tlie 26th of December, 1832, William Hammatt agreed to sell the township, and became bound to Robert Treat, Waldo Peirce, Hazen Mitchel, Nathaniel Treat and Elihu Baxter, in the penal sum of Gfty thousand dollars, to produce to them good and sufficient deeds, in the proportions in which they had severally paid for the township, reserving to the said Hammatt, the right to cut and take from the same, 3,000,000 feet of board logs. We are to ascertain whether the admissible evidence, together with that to which no objection has been made, furnish sufficient grounds for supporting the verdict, which was for the plaintiffs ; and we must look to the situation of the parties in the origin and progress of the concern. In the order of time, we notice the first act succeeding the execution of the bond. It is the conveyance made by Hammatt on the 11th of January, 1833, of the whole township, in his deed of that date, to Pierce and Treat, Hazen Mitchell and Elihu Baxter, one quarter to each. This conveyance, being unconditional, were there nothing more in the case to qualify the rights of the parties, would extinguish *392the reservation antecedently made in the bond, and operate by way of estoppel against Hammatt’s claim under that reservation. But on the 25th day of January, 1833, Mitchell conveyed his quarter to Sawyer &f Little. On the 1st of March, 1833, Pierce fy Treat conveyed their half to Sawyer, and on the sixteenth of March, 1833, Baxter transferred his interest in the township to Sawyer. This made Sawyer &f Little, proprietors of the whole, Sawyer owning seven eighths. On the 16th of March, 1833, Sawyer sold one eighth of the land to Chamberlain. And on the 13th of April, 1833, Sawyer also disposed of another eighth of the territory to Crabtree, who are the plaintiffs in the present suit.
Hammatt is still mortgagee of an undivided quarter, to secure about four thousand dollars of the purchase money, no part of which was then, or at the time of the trial, payable.
Before the execution of the bond made by Hammatt, containing the reservation, it would seem that a certificate was drawn up on the 24th of Dec. 1832, marked D. and signed by Elihu Baxter, W. T. &f H. Pierce, Nathamiel Treat and Hazen Mitchell, by which they agreed to buy Township No. 1, in 8th Range, for 30,000 of Hammatt, he deducting therefrom, 3,000 for stumpage of 3,000,000 feet timber to be obtained by him the present winter. But we exclude this evidence, not only because there is no proof that it was delivered to Hammatt, and by him accepted, but if it had been, it was superseded by the execution of Hammatt’s bond on the 26th of December, 1832, containing the reservation, and by their acceptance of it. This must be considered as disclosing the true views of the parties. The paper marked D. we therefore deem inadmissible evidence. The bond to Samuel Moor from Waldo Pierce and Bobert Treat, dated the 12th of January, 1833, conditioned to convey to him a part of this township, is also inadmissible. It was between other parties. And although Elihu Baxter is called to speak about it, he is indistinct as to his knowledge whether Hammatt saw it. He rests only in impressions. They may have been well founded. From the relationship of Carr, the draftsman, to Hammatt, some slight grounds of probability may arise that the fact was so. But even had he seen it in the act of being written, he might have been very inattentive to its details, and not *393have known any thing of the restriction. There is no proof that he assented to it.
We think his rights ought not to be affected by this paper, and we exclude it. If any additional reason were required, we perceive that this was assigned to Sawyer, on the 23d of January, 1833, more than thirty days before the paper, hereafter to be noticed, was written.
The papers marked A. and B. being contracts of Sawyer and Ellis B. Usher, to purchase of Mitchell and others, must also be excluded, being executed the 24¿A of January, 1833. Though, if the bond, certificate or agreement, signed by M. P. Sawyer, of that date, to Hazen Mitchell, were admitted, it would disclose that Sawyer and Usher say, it is understood that we have no claim on account of the 3,000,000 feet of lumber permitted to be obtained in the present winter. The bond of 26th of December, 1832, from Hammatt to Mitchell and others, is in evidence without objection. It is not necessary to be shown that either of the plaintiffs had seen the bond at the time or before they became purchasers. The purport of it might have been otherwise communicated. Baxter, the plaintiffs’ witness, rather thinks Sawyer understood the bond. If he did understand it, all the plaintiffs must be affected by the result of that information, were it a prerequisite to the establishment of the defendants’ right. For the plaintiffs have associated for a joint recovery of damages. Unless there were fraudulent concealment or deceptive representation practised toward Sawyer, or the plaintiffs, on the part of Hammatt, the Court do not perceive, upon a consideration of all the facts legally admissible, which have been presented in this case, that Hammatt can fairly be deprived of the benefit of the reservation.
Baxter says, there was no express agreement between Hammatt and the purchasers, that if the timber was not taken off during that season, that it should be forfeited, though he understood him to be restricted to that season. We are not satisfied that Baxter can, by his testimony, be admitted to vary or explain the written evidence hereafter to be mentioned. In addition to reserving to the said Hammatt, in the condition, the right to cut *394and take from the township 3,000,000 feet of board logs, it is worthy of remark, that there is the following writing on the bond; “ I guarantee that there is pine timber, such as is usually cut for “ mill logs, on the said tract of land, to the amount of 30,000,000 “ feet of boards, provided the aforesaid purchasers request, within “ four months. The same shall be surveyed and estimated by “ persons mutually appointed by them and me. And if the same “ shall fall short of that amount, I will pay back to them at the “ rate of one dollar per thousand, for what it may so fall short, “ and also the expense of surveying the same. But if it shall “ amount to 30,000,000 feet, then the said purchasers shall pay “ all expense of surveying as aforesaid. For all timber I may “ cut, more than 3,000,000 feet, I will pay a stumpage of two “ dollars per thousand. “ William Hammatt.” -
It is strongly to be presumed that this bond and stipulation, on the part of Hammatt, would be a subject of notice and commentary by sellers and purchasers of timber lands. The certificate marked A., written on said bond and signed by Waldo Peirce, Robert Treat, H. Mitchell, and Elihu Baxter, giving their understanding of its meaning, is not admissible in evidence for any purpose, but to contradict testimony which is given by either of the signers. Because it was not written till after the paper of the 25th of February, 1833. The effect of the writing marked C. dated February 25, 1833, considered with regard to the reservation in the bond, to which reference is indirectly made, must necessarily have an important bearing in deciding this case. It commences by way of recital: “We having bought of Hazen “Mitchell, three eighths of township No. 1, in the eighth range, “ subject to a permit from former owners to William Hammatt, “ Esq., to cut and obtain 3,000,000 feet timber on said township “ in the present year,” and then goes on to say, “ hereby agree “ that said Hammatt may there get said 3,000,000 feet timber “ without hindrance or claim from us, but shall pay to us for “ stumpage two dollars per thousand for all he shall obtain over “ said 3,000,000 feet. Signed by ' M. P. Sawyer, and
“ J. S. Little.”
These gentlemen are two of the plaintiffs. Reference is made in this paper to a permit from former owners. And Mitchell *395says, the reservation in the bond was that permit, which we do not find to be qualified there with any limitation of time as to that quantity. The reference then is to the bond, and revives it. And if any mistake were committed by wrongly referring to it as a permit, in a court of equity it would be corrected by the writing-referred to. Argenbright v. Campbell & wife, 3 Hen. & Mumf. 144.
F. Allen, and W. P. Fessenden, for the plaintiffs. Rogers, for the defendants.The 3,009,000 feet are most distinctly admitted to be the property of Hammatt, that he may get it without hindrance or claim from them; and even if he should obtain a greater quantity, he shall pay for stumpage only $2 per thousand. The defendant, Hammatt, has really purchased and paid for this quantity, and was rightfully entitled to the possession of the portion of it, for which the verdict has been rendered against the defendants. It was urged, that even if Hammatt might have cut and taken the timber before the 1st of January, 1834, he could not do so after that period. And the cases of Stowell v. Pike, 2 Greenl. 387, and Pease & al. v. Gibson, 6 Greenl. 81, have been pressed upon our consideration. Those were actions of trespass. This is trover. This is a purchase of a definite quantity, with an implied right to take more at 'the price of two dollars per thousand, should it so happen that he should have cut more than the three millions feet.
The case is so distinguishable from those cases, that without going more minutely into the examination and comparison, we see nothing in them to justify the claim of the plaintiffs to the timber which Hammatt had severed from the freehold, in which he, too, was interested as mortgagee. As he had not entered for condition broken, we do not place the decision on that ground. Nor do we dismiss it from our recollection. Ho was the rightful owner of the timber cut. And, inasmuch as the evidence does not diselose that there has been taken by the defendants a greater quantity than 3,000,000 feet, the verdict must be set aside and a new trial granted. But unless the evidence be materially changed, the action cannot be supported.