delivered the opinion of the court, March 13th 1882.
The contract between these parties was in writing and under seal. By its terms, the lumber company agreed to saw and deliver to the car company “ oak lumber of the size and quantity ordered by the said car company from time to time, and fitted for the use of said ear company, the quality to be such that it will pass inspection by the foreman of said car company, the said parties of the first part to furnish said lumber as .fast as will be required by said car company, according to bills furnished at either "Watsontown or Allenwood, as aforesaid directed by the said car company.”
This agreement is perfectly plain and simple in its terms, and requires no help from extrinsic testimony to understand its meaning. The lumber company was not; to take any particular lumber, but only oak lumber generally, which, however, was to be of the size and quantity ordered by it. It -was to be fitted for the use of the car company, and was to be furnished according to bills sent by the car cpmpany. On the trial, the plaintiffs offered to prove, by one of their number, a conversation between him and two of the defendants some time before the execution of the written contract, at Elmsport, where there was a lot of logs belonging to the plaintiffs. The purpose of the offer was to show that the defendants saw this particular ‘■'lot of logs, inspected them, and that they were the logs stipulated to he bought in the contract.” This offer was objected to on the ground that it would add to the terms of the contract, that it would contradict the contract, and that it would destroy one of the provisions of the contract. The court admitted the evidence for the purpose of showing that the defendants saw this particular lot of logs, and that they knew what they were contracting about. We think this was error. It was unnecessary to show that the defendants had seen any particular lot of logs before the written contract was made, simply because the contract was not made for that or any other particular lot. Such evidence could only tend to create a false issue, and thereby mislead the jury. The counsel for the car company allege now that it was argued to the jury that the contract was made for this very lot of logs, and because the car company did not take them, the lumber company claimed and recovered heavy damages. As we find the same argument now made in the paper book of counsel for the lumber company, it may well be that *610the complaint is not made without cause. However that maybe, as we can see no proper purpose that could be served by the admission of this testimony, we think it should have been rejected. It is true, the testimony, when admitted, did not develop any new terms of the agreement, but it did go to the .point of identification, which -yas the purpose for which the court admitted it. As there wasj nothing to be identified under the language of the contract in suit, the testimony offered and given might be quite harmful to the case of the defendants, in causing the jury to believe that they had agreed to purchase this particular lot of logs. This becomes more apparent when it is discovered that the defendants alleged, in defence, that they could not get such lumber as they required for the use of cars, and as ordered by their bills. rJjhey claimed that they required and ordered lengths which could not be found amongst these logs, and that this was one of their reasons for not taking them.
We think also, that the sixth point of the defendants should have been definitely answered. Of course the court was bound by the facts stated hypothetically in the point, and on these facts the conclusion stated was apparently sound. The question raised by the point was as to the effect of the former action on the present right of recovery, on the supposition that when the action was brought, the plaintiffs had refused to deliver the long timber or other lengths called for by the bills, and the defendants had refused tp furnish any more-bills and to receive any m<j>re timber. These facts being true, the plaintiffs’ right of action was thereupon complete before the first action was brought, and we do not think it was competent for them to split up their cause of action into several parts and bring separate actions for each.
Of course, we do not assume to decide the question whether the former recovery was a bar- to the present action or not. We are dealing only with the point as presented and the action of the court below in relation td it. In reality, the point was not answered at all. The court'replied to it, by saying, that it related to a matter which they considered as a matter of law, and which would be reserved. But no designated legal question was reserved, and no finding of ¡fact by the jury was submitted, as the basis for any reserved question. The same remarks are true of the answer to the eighth point of the defendants. In Ferguson v. Wright, 11 P. F. S. on p. 262, we said: “Every reservation of a question should! place distinctly upon the record what the point is which is reserved, and the state of facts out of which it arises. This is necessary to enable the party to except to it and to have it reviewed.” And in Wilson v. Steamboat, 1 Cas. on p. 319 : '“In every case where a general verdict is given subject to a point reserved, the question of law *611thus reserved must be stated, and the facts on wbicb it arises must be cither admitted on the record or found by the jury.” The remarks of Black, J., in the latter case are quite applicable to the present. Tested by this rule, it is apparent there was no proper reservation of any question for the subsequent action of the court, and the point remained unanswered.
For these reasons, we are of opinion, that the case must be reversed on the first, second and third assignments of error.
Judgment reversed and venire facias de novo awarded.