Page:North Dakota Reports (vol. 2).pdf/319

 the court in Strohn v. Railroad Co.: “It is in the nature of a direct fraud or cheat for the company or its agents, after having entered into a verbal agreement, thus wrongfully to insert a contract of an entirely different character, and present it to the party without directing his attention expressly to it and procuring’ his assent.” It would be a startling doctrine that one who has no reason to believe that a paper handed to him embodies a written contract, or that it is anything other than a paper of his own, which, he having handed to another, is returned to him; who receives no intimation from any one that such paper embodies a written contract or any part of an agreement; who does not receive or know its contents—shall be held to have entered into a written contract by putting such paper in his pocket. The plaintiff easily could have informed him of the nature of the paper handed to him. It is true that there is evidence that it did, but this was a question for the jury, the defendant controverting this evidence. The issue in this case is whether the defendant ever assented to the terms of the so-called written contract. If his receipt of the paper, under the circumstances of this case, should be held to bind him as to the quantity of lumber and the price, he would be bound if an exorbitant price had been charged, or if the plaintiff had inserted in the paper all the lumber in its yards at Fergus Falls. The rule excluding oral evidence has no application in this case, nor can it ever have any application until it is established that a written agreement has in fact been made. “ Parol evidence is also admissible to show that the paper was never accepted as a contract between the parties.” 4 Lawson, Rights, Rem. & Pr. § 1853. While the evidence which tended to show this fact was received, the question was not submitted to the jury, but the court ruled that the invoice constituted the contract as far as the price was concerned, and on this theory directed a verdict against the defendant. This was as prejudicial as though the evidence on this point had been excluded. The paper handed the defendant is merely an invoice of lumber. There is contained in it no agreement on the part of the plaintiff to sell or the defendant to buy. To prove that defendant was to pay $450 for the lumber described in it does not