Page:North Dakota Reports (vol. 1).pdf/164

 must be made in the writing, or it will be held to embrace the true agreement of the parties. In attempts to mete out justice in individual cases, so many distinctions have been made, in order to escape the force of the doctrine excluding all oral stipulations not embraced in a written contract, that the proper application of the rule has become a problem so difficult of solution that the value of the rule has been seriously impaired. The uncertainty which has resulted has given rise to much litigation in which each party has been sanguine of success because precedents to support each theory could be found. This is to be deplored, and it is wise that this court should at the outset uphold this principle in its full integrity. We are of the opinion that the court erred in admitting the testimony as to amount of coal to be furnished, and in submitting the same to the jury; and for this error the judgment of the district court is reversed, and a new trial ordered. All concur.

, Plaintiff and Appellant v., Defendant and Respondent.

1. Instructions Held Proper.

Instruction of court that there was no evidence contradicting testi- mony of defendant as to a certain fact held proper.

2. Servant’s Tort; Evidence of Principal’s Orders to Servants.

Defendant having been sued for damages caused by fire fleged to have been set out by his servants or agents held proper to prove defendant’s orders to his hired men not to set any fires.

PPEAL from district court, Cass county; Hon., Judge.

Action for damages from fire claimed to have been set out by defendant on his own land. Plaintiff testified that he traced the fire back from his field to the defendant’s land; that he saw smoke on defendant’s land September 20; the plaintiff's property was destroyed on the 20th and 22d; that he saw smoke on