The opinion of the court was delivered by
Kellogg, J.The only questions made in the case, at the hearing in this court, arise upon the allowance to the defendants of an item of fifteen dollars for a quantity of lumber, which the auditor finds was in the plaintiffs’ hands at the dissolution of the copartnership of the defendants. This allowance the plaintiffs insist was wrong.
1. They insist, that in the sale from Wheeler and Read to Hickok this property was transferred, and if this be true, then this *114objection is certainly well founded; and we are referred to the bill of sale, as furnishing evidence of the fact. The bill of sale purports to convey certain articles of property, therein particularly enumerated and described, with the estimated value of each thereto affixed; but among the articles so enumerated the lumber in question is not to be found. The plaintiffs, however, rely upon the general clause in the concluding part of the bill of sale, as being sufficiently broad and comprehensive to convey the property in question. The clause relied upon is in these words, — “ Received payment in full for the above two thirds of enumerated articles, (meaning thereby to sell all our interest in the articles of personal property of L. M. Stevens &. Co. of Underhill.”) The words included in the parenthesis, when taken in connection with the other parts of the instrument, are obviously, we think, words of description and not of grant, and cannot, by any fair rule of interpretation, be regarded as enlarging, or extending, the operation of the bill of sale. They have reference to the articles before enumerated in the instrument and are limited by them. It does not appear, that the parties had any property in contemplation, except what is specified in the bill of sale, nor can we find any evidence in the case, warranting the conclusion, that any sale of the lumber in question was made by Wheeler and Read to Hickok. Consequently this exception cannot prevail.
% It is farther insisted by the plaintiffs, that, if the bill of sale does not amount to a sale of the lumber in question, yet, that the defendants are not entitled to recover for it in this action.
It appears from the report of the auditor, that the plaintiffs, at the hearing before him, resisted this item of the defendants, account solely upon the ground, that, in the sale and transfer of property from Wheeler and Read to Hickok, the lumber in question passed to Hickok ; and the same has been urged on the hearing in this court. This, we think, furnishes satisfactory evidence of an unwillingness on the part of the plaintiffs to account for the property, and even sufficient to justify the inference of a refusal to deliver or account for it. If we are correct in this conclusion, the defendants were clearly entitled to recover for the lumber in this suit.
The result is, that we do not find error in the judgment of the county court, and the same is therefore affirmed.