Page:North Dakota Reports (vol. 3).pdf/314

 excepted. This action of the court renders it impossible for us to determine whether the jury did not decide against the plaintiff upon the strength of certain incompetent testimony, to which we will now refer. E. E. Henderson, one of the defendants, was asked to testify to a conversation which took place between himself and the deceased, in his lifetime, prior to the time when the written contract was executed. The question was objected to as incompetent under § 5260, Comp. Laws, and as generally incompetent and immaterial. The answer was as follows: “Mr. Hutchinson said he would build a roller mill at New Rockford under certain conditions. We asked what a roller mill was, and it was defined, to some extent, by Mr. Hutchinson. His definition was a machinery mill for exchange, and ‘grinding flour for sale. Our reply was, we wanted a mill for the benefit of the farmers, where we could take our own wheat, and get it ground, and get our flour from our own wheat; and we said: ‘We will have that, if we put our money into it. We Will have the kind of mill we want.’” This evidence was immaterial, except as it tended to throw light upon the agreement between the parties; and it was incompetent for that purpose, as it was directly contrary to the terms of the written contract subsequently entered into. Under the written con- tract, plaintiff agreed, not to give the defendants a grist mill, but a custom mill, according to the meaning of the word “custom,” when applied to a roller mill, i. e. a mill where an equivalent in flour, etc., is given for wheat. It was improper to allow the jury to hear evidence contradicting the contract the parties had made; and it was error to submit to them the issue whether the mill was operated as a custom mill, when there was no such issue before the jury, under the evidence, except on the theory that this incompetent evidence created such an issue, and the jury had a right to consider it, and even to base a finding upon it, directly against the clear and explicit terms of the written agreement. It is by no means certain that the jury did not find against the plaintiff upon the sole ground that the mill was not operated as a custom mill, and when it is undisputed that it is was so operated.