These parties entered into a written contract for the sale, hv the plaintiffs to the defendant, of a quantity of saw logs “boomed and delivered to tug.” The purchaser was to furnish the sellers with chains necessary to boom them. The logs were on or at an island in the St. Louis river. The plaintiffs inclosed the logs in a boom, the two ends of which were fastened to the island, so that the boom did not completely surround the logs. While the logs were in this situation the boom broke, under circumstances concerning which the evidence was conflicting, and many of the logs were lost. The controversy in this action is as to which party should bear the loss; and that depends upon the question whether the plaintiffs had done all that was required of them under the contract; whether they were still in possession and control of the logs, or whether the same had been delivered to, and were under the control of, the defendant.
The evidence on the part of the plaintiffs, as well as on the part of the defendant, showed, and without contradiction, that, as applied in business of this kind, the language'of the contract, “boomed and delivered to tug,” signifies that the logs are to be completely inclosed in a boom, so that a tug can fasten to them and tow them away; and even without such evidence this would seem to be the meaning of that language of the contract. At the trial one of the-plaintiffs was allowed to testify to a conversation between themselves and the defendant, at or prior to the making of the written: contract, as follows: “We said we would sell the logs right to him on the spot- where they lay, but we would take no more responsibility after he had bought them. We ivould put in the chains, and’ tie them to the shore; and that is the ivay we wanted to sell them. * * * He said, ‘All right, I will take — =’ ” At this point the ■witness was interrupted by a motion on the part of the defendant to strike out the evidence, and the sentence was not completed; but the witness had stated so much that the jury would probably understand the testimony as indicating that the defendant accepted the-terms thus proposed. All this evidence was properly objected to,, for the reason that it was at variance with the written contract.. The objection was well founded. Particularly that part of this; evidence which we have put in italics went to vary the written. *418agreement of the plaintiffs that the logs should be “boomed and delivered to tug.” The obvious purpose and tendency of the testimony was to show that the plaintiffs’ undertaking was only to do what they had done, — inclose the logs within a boom, the two separate ends of which should be fastened to the shore. The written contract expressed a different obligation.
The contention that this error was waived or cured by the motion of the defendant that the evidence be stricken out, and by the ruling of the court thereon, cannot prevail. The court did not strike out the objectionable testimony. The most that can be said in support of the respondents in this particular is that the court left it entirely uncertain whether any of the testimony was stricken out, and what, if any, was thus excluded. The exception to the reception of the evidence was well taken.
It may be assumed that, by moving to have the evidence stricken out, the defendant consented to that mode of remedying the error, so that, if his motion had been granted, the defendant would have been deemed to have waived his previous exception; but, as that remedy was not granted, he cannot be supposed to have relinquished his exception to the admission of the evidence, even though he did not except to the ruling of the court on his motion.
Our conclusion is not affected 'by the fact that, when the defendant was about to send to have the logs taken down the river, he concluded to dispense with the use of a tug, and to employ men to float the logs, within the inclosing boom, down the river. There does not appear to have been any modification of the conditions of the written contract as to the manner in which the plaintiffs should boom the logs for delivery; at least, it is not clear that there was any modification or waiver of the agreement in this particular.
Order reversed. •
Vanderburgh, J., absent.(Opinion published 55 N. W. B,ep. 559.)