Kimball v. Waterman , 73 N.H. 348 ( 1905 )

The defendant's contention is that the verdict must be set aside because oral testimony was introduced to prove that only a portion of the pine timber on the Kimball property north of the cemetery was included in the sale. It is found that at the time of the sale the plaintiffs owned two lots of land in West Lebanon, one lot being north of the cemetery, the other in the Glen, and that the pine timber then remaining on the lots was scattered over them in small clumps and extended areas. In the written agreement, the subject-matter of the sale is described as "one lot of pine timber situated on the Kimball property north of the cemetery and one lot of pine timber situated in the Glen." The contract upon its face is unambiguous; but when an attempt is made to apply it to the facts and circumstances surrounding the parties at the time it was made, it is found that there are two or more lots or areas of pine timber on each tract of land which answer its terms. In other words, there is a latent ambiguity which permits the introduction of oral testimony to show what lot or area of pine on each tract of land was intended to be sold. Pickering v. Pickering, 50 N.H. 349; 1 Gr. Ev. ss. 286-288, 297-300.

Exception overruled.

All concurred.