Page:North Dakota Reports (vol. 1).pdf/163

 whom defendant claimed it was had, but the jury have found this question of fact in favor of defendant. The jury were instructed that, if this talk was had, and the amount of coal to be delivered under this contract was then agreed upon, then, in fixing the defendant’s damages for failure to deliver all of the coal under the contract, the jury must consider the plaintiff as bound to deliver 95 tons. Plaintiff insists that the contract was all in writing; that under it plaintiff was bound to furnish not to exceed two-thirds of 951 tons, or 634 tons; that it was error to admit the testimony of defendant as to the conversation in which defendant claimed the amount to be furnished was agreed upon; and that it was error to direct the jury to find damages on the basis of an obligation resting upon plaintiff to deliver 951 tons in case they found the defendant’s testimony in this regard to be true.

This presents a case in which it becomes necessary to determine whether the general rule excluding parol evidence to affect a written agreement is applicable. We think it is. The letter from defendant to plaintiff, and from plaintiff in reply, together constituted, in effect a complete proposition for an agreement to be accepted or rejected. There was a request for a proposition on certain conditions, and the plaintiff, by reply, submitted its proposition in view of those conditions. The parties, therefore, stood in the position of having drawn, but not signed, a proposed agreement, when the conversation as to the amount of the coal to be furnished was had. This conversation was at variance with the terms of this written but unsigned proposed agreement, and it was the duty of the defendant to see to it that this parol change was interpolated into the contract before finally assenting to it. This he did not do. He signed it as it was, by writing the letter of acceptance. This accepted an offer to furnish coal at a certain price, which offer was made on condition that the amount was to be about one-half to two-thirds of the amount supplied defendant by plaintiff the season before. It did not accept an offer to furnish 951 tons of coal, nor was the contract silent as to the amount. If, after submission of a written agreement for approval the parties agree to change any of the terms of the writing, the change