The opinion of the court was delivered by
Pierpoint, Oh. J.The defence in this case is placed upon two grounds.
I. That defendant acquired a title to the property in question by virtue of a written contract entered into between him and Elisha Wood, who, at the time, owned the property, and Mary Wood, the wife of the said Elisha, executed the first day of July, 1865.
II. That if the written contract was not valid by reason of the mental incapacity of the said Elisha to make the contract (as is claimed by the plaintiff), then, by virtue of a verbal contract of the same tenor, entered into between him and the said Elisha, in the fall of 1863, when it is conceded he had the requisite capacity.
The written contract, on its face, does not include any of the *331property sued for, except the horse. The language used in the contract in respect to the property conveyed is as follows: “ The condition of this obligation is such, that the said Jefferson Shurtleff, for the consideration of six hundred and fifty dollars, paid to him by the said Elisha Wood, it being all his personal property, consisting of one horse, one cow, and notes to the above value, hath agreed,” &c. It is insisted that, inasmuch as the said Elisha had other personal property besides that named in the writing, that the writing is ambiguous, and that parol testimony was admissible to show that such other personal property was agreed and intended to be conveyed by the instrument; and against the objection of the plaintiff, parol testimony for that purpose was admitted by the court. In this we think there was error. The words, “ it being all his personal property,” are limited and controlled by the words following: “ Consisting of one horse, one cow, and notes to the above value.” If he had been the owner of notes to a much larger amount than six hundred and fifty dollars, would it be claimed that all his notes would pass under the words first named, when, by the very terms of the instrument, their operation is limited to notes sufficient, with the horse and cow, to make the sum of $650 ? And we think no ambiguity arises from the situation of the parties and the surrounding circumstances, as proved upon the trial; for the defendant himself testifies that at the time the contract was made, the said Elisha had the horse, valued at $125 ; the cow, valued at $35 ; and notes and cash on hand to just the amount of $650.
As to the verbal contract, the defendant was offered as a witness in his own behalf. The plaintiff objected that he was not a competent witness under the statute, the said Elisha being dead. He was admitted, and testified that in 1863, he made a verbal contract with the said Elisha; that “ the written contract was the verbal contract, or the same as the verbal contract made with said Elisha in 1863.” If this was so, what has already been said applies to this as well as to the written contract; but he further says that it was a part of the arrangement that he was to have the property in question. As he says this contract was made with Elisha, and nowhere intimates that Mary Wood was a *332party to it, we think he was not a competent witness, and should have been excluded. Whether the fact that Mary Wood was named in the written instrument as a party to it and signed it, makes the defendant a witness in respect to it, so far as parol evidence is admissible, the said Mary being now living, is a question on which we have difficulty in coming to a conclusion, and it is not decided. . .
The fact that the plaintiff recovered for |>1J under the'circumstances developed in this case, dbes not preclude him from the benefit of his exceptions.
Judgment reversed, and cause remanded.