Page:North Dakota Reports (vol. 3).pdf/208

 the signing of the written agreement. Parsons himself was not asked anything about such a conversation. There was therefore not competent evidence of a contract independent of the writing. All prior and contemporaneous negotiations and. talks were merged in the written agreement. There was no attempt to prove any subsequent modification of the written instrument, or the making of a new contract after the execution of the original order. Whether, therefore, Parsons was or was not general agent is entirely immaterial. We think, however, the court did not err in excluding the inquiries as to the scope of his powers. It was undisputed that his employment was in writing, and an attempt was made to prove the loss of this writing which defined the extent of Parsons’ powers as agent. What authority he possessed could be proved only by the best evidence. Defendant’s whole contention that the written contract was modified by an oral agreement with Parsons rests upon the hypothesis that Parsons was general agent. It is apparent from the record that he was not, but, on the contrary, occupied a very subordinate position in the employ of plaintiff. The order contains a statement that plaintiff understands that the agent, Parsons, has no authority to add to, abridge, or change the warranty in any manner. Unless he was a general agent, there could be no pretense that Parsons could alter the conditions of this warranty in the face of this explicit provision. The defendant has made these contentions because it is apparent that he has not complied with a material provision of the written warranty, nor has there been a waiver thereof, and he must therefore suffer defeat if he is forced to stand upon the written instrument. The warranty expressly requires the defendant to give written notice, stating wherein the machine is defective, to the agent from whom it is received, and also ‘to the “Plano Mfg. Co., at Chicago, Ill.” Such notice was never given. It was not waived. There was therefore no defense to the action, although there may have been a breach of the warranty. Defendant cannot take advantage of such breach for the purpose of recovering damages, or of rescinding the sale, unless he has