Kimball v. Waterman

Supreme Court of New Hampshire

Kimball v. Waterman

61 A. 595, 73 N.H. 348, 1905 N.H. LEXIS 52

DecidedJune 29, 1905

StatusPublished

This text of 61 A. 595 (Kimball v. Waterman) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kimball v. Waterman, 61 A. 595, 73 N.H. 348, 1905 N.H. LEXIS 52 (N.H. 1905).

Pincite

Opinion

Bingham, J.

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. 849; 1 Gr. Ev., ss. 286-288, 297-300.

IHception overruled.

All concurred.

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Bingham, J.

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. 849; 1 Gr. Ev., ss. 286-288, 297-300.

IHception overruled.

All concurred.

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Bluebook (online)

61 A. 595, 73 N.H. 348, 1905 N.H. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimball-v-waterman-nh-1905.