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 quality 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 reserva*31tion? 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 he 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 or to 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 ten 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 plaintiffs claim. *
The judgment should be affirmed, with costs.
Ruger, Ch. J., Miller and Finch, JJ., concur; Rapallo, Andrews and Danforth, JJ., dissent.