majority">Fogler, J.

This is an action of replevin. The verdict was for the plaintiff and the defendant excepts to the rulings of the presiding justice in four instances.

The following facts appear by the exceptions : October 10, 1899, by an agreement in writing by and between the plaintiff and the defendant, the defendant agreed to cut, haul and drive into the main Penobscot river, certain spruce, pine and cedar logs to the amount of one million feet or more, at the agreed price of six dollars and fifty cents per thousand feet for spruce and pine, and seven dollars and fifty cents per thousand feet for cedar. It was also stipulated in the agreement that should the logs cut under the agreement, upon a re-scale for sale, over-run the stumpage scale, the defendant should be paid for such over-run seven dollars and fifty cents per thousand feet for spruce and pine, and eight dollars and fifty cents per thous- and feet for cedar. By the contract the defendant agreed that all the horses and camping outfit used in carrying on the operations, except what should be hired, should become the property of the plaintiffs until the contract should be fulfilled and settlement made.

December 9, 1899, the defendant by a bill of sale by him signed, conveyed to the plaintiffs the property replevied in this suit, consisting of ten horses “with harnesses, sleds and hitch and rigging, all the (¡amp outfit now at Elm Stream.”

The defendant pleaded the general issue, non cepit, and by brief statement that the property of the goods and chattels replevied was, at the time they were replevied, in the defendant, and not in the plaintiff'; that the bill of sale above mentioned was obtained of the defendant by fraud through a certain false and fraudulent representation made by the plaintiff, McLeod, to the defendant; that the provision in the contract that his horses and outfit should become the property of the plaintiff' was not read or made known to him at the *278time he signed the contract, and that the plaintiff fraudulently, with the intent to obtain the defendant’s signature to the contract, failed and omitted to make such provision known to him, by reason whereof the said provision is not genuine, but null and void; and, lastly that both the agreement and the bill of sale are not genuine.

The exceptions state that the defendant could neither read nor write and he signed both instruments by mark.

Neither the amount of logs cut by the defendant, his compensation therefor, nor the fact that a balance was due the plaintiff from the defendant on the logging operations was in dispute at the trial. There was a special finding by the jury that the bill of sale was executed by the defendant with full knowledge of its contents.

We will now proceed to examine the exceptions seriatim.

1. The plaintiff, McLeod, upon cross-examination, was asked by the defendant’s counsel the following question, “Didn’t you state to Mr. Johnson (the.defendant) in Mr. Marsh’s office in Oldtown at the time this contract was executed, that if he could bury up any of those logs or put them under the ice and not let the scaler turn in a true account of them, that he could make something out of it?” The presiding justice exchided the question, to which ruling the defendant excepts. We think the ruling was correct. The contract between the parties was in writing signed by them. Its terms are clear and unambiguous. In the absence of fraud both parties are bound by the writing. The duties and rights of the defendant are fully expressed in the contract, No words spoken by the plaintiff could affect his duties or his rights. The language supposed by the question does not tend to prove fraud in the inception of the contract. It does not appear by the exceptions that the supposed words, if spoken, were intended to induce or did induce the defendant to sign the contract. If spoken it was a mere suggestion upon wliiefi the defendant might, or might not act, as he saw fit. It is contended by the learned counsel for the defendant, that as the supposed words were spoken at the time the contract was executed, they are a part of the res gestae and therefore admissible. Words spoken or acts done when the act litigated is being executed are not always res gestae.

In Carter v. Buchanan, 3 Ga. 513, the res gestae is defined to *279mean tbe circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it and serve to illustrate its character.

Mr. Wharton says, “ The res gestae may, therefore, be defined as those circumstances which are the undesigned incidents of a partieidar litigated act, which are admissible when illustrative of such act. These incidents may be separated from the act by a lapse of time more or less appreciable. They may consist of speeches of any one concerned, whether participant or bystander. They may comprise things left undone as well as things done. Their sole distinguishing feature is that they should be the necessary incidents of the litigated act; necessary in this sense, that they are a part of the immediate preparations for, or emanations of such act, and are not produced by the calculated policy of the actors.” 1 Wharton on Evidence, § 259.

In the light of the foregoing definition, the words supposed by the question to have been spoken by the plaintiff cannot be regarded as pars rei gestae.

II. The defendant offered to show by his own testimony the conversation between the parties to the contract, at the time and place of its execution, concerning the provisions therein relating to extra compensation to the defendant for any amount that the sale scale of the' logs should over-run the stumpage scale. The defendant’s counsel contended that the testimony was admissible as a part of the res gestae. The presiding justice ruled that the testimony was inadmissible and excluded it., to which riding the defendant excepts.

The testimony was properly excluded for the reasons given with reference to the first exceptions. There is no ambiguity in the clause above referred to. If the conversation offered in testimony took place before the contract was signed, it was inadmissible as the contract was afterwards reduced to waiting; if it took place after the signing it was clearly inadmissible.

III. Evidence was introduced by the defendant tending to show the property in some of the horses described in the bill of sale, to be at the date of the writ in persons not parties to this suit.

*280Counsel for defendant contended that under the first count in the brief statement property of some of the chattels in controversy could be shown in persons not party to the suit, for the purpose of defeating recovery thereof by the plaintiff.

The presiding justice ruled that such evidence was only admissible as bearing upon the defendant’s conduct, and, that if the jury should find that the bill of sale was executed and delivered by the defendant with'full knowledge of its contents, he would be estopped in this suit from setting up title in third parties at the date of the writ not deriving title from the plaintiffs.

. To this ruling exceptions were taken by the defendant and allowed.

The defendant by his pleas alleges that, at the time when the chattels were replevied, they were the property of the defendant and not the property of the plaintiff. The burden was upon the plaintiffs to prove property in themselves.

To prove their title the .plaintiffs introduce a bill of sale with a covenant of warranty of title from the defendant to themselves, and in which the defendant avouches himself to be the true and lawful owner of the chattels.

The jury found specially that the bill of sale was executed by the defendant with full knowledge of its contents.

The defendant is estopped as against the plaintiffs by his bill of sale and covenants therein contained from setting up title in the property or any part of it in a third party, unless the title of the third party be derived from the plaintiffs. 1 Greenl. on Ev. § 24; Hammond v. Woodman, 41 Maine, 177, 66 Am. Dec. 219 ; Temple v. Partridge, 42 Maine, 56; Dewey v. Field, 4 Met. 381, 38 Am. Dec. 376; Bursley v. Hamilton, 15 Pick. 40, 25 Am. Dec. 433; O. Sheldon Co. v. Cooke, 177 Mass. 441; Dezell v. Odell, 3 Hill, 215, 38 Am. Dec. 628.

IV. The defendant excepts to a riding of the presiding justice that, under the pleadings, the defendant could not show himself not in possession of the chattels in controversy at the date of the writ for the purpose of defeating the action. The exceptions cannot be sustained, as the issue involved in the ruling is not raised by the plea. *281The only question regarding the property raised by the plea is that of title.

Exceptions overruled. Judgment on the verdict.

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