contract a nullity. The contract in this respect was subject to explanation and the lot identified by extrinsic evidence: Tice v. Freeman, 30 Minn. 389, 15 N. W. 674; Sanborn v. Nockin, 20 Minn. 163 (178); Ames v. Lowry, 30 Minn. 283, 15 N. W. 247. The evidence fully identified the lot intended to be included by this part of the agreement to be lot 10, and immediately joining lots 11 and 12, which plaintiff, by the contract, agreed to convey by warranty deed.

5. Plaintiff tendered to defendants in performance of this part of their agreement a quitclaim deed from C. M. Way, who had an interest therein under a tax title. It was fully understood by the parties when the contract was entered into that the only interest or title to be conveyed by the quitclaim deed was that held by Mr. Way, and it was to be quitclaimed to defendants for what it was worth.

Counsel for defendants insist that they are entitled, not only to a 184 quitclaim from plaintiff, but a transfer of title to the lot. In this he is in error. The contract does not call for a transfer of title, and a quitclaim from Way, who held the interest in the lot which was in the minds of the parties at the time, was a sufficient compliance with the agreement: Meyers v. Markham, 90 Minn. 230, 96 N. W. 335, 787; McNellis v. Hilkowski, 98 Minn. 127, 107 N. W. 965.

This covers all questions requiring special mention, and for the reasons given the order appealed from is affirmed as to defendant Gustav Rieck, but reversed and a new trial granted as to defendant Anna Rieck.

The Effect of a Conveyance of a Homestead by one only of the spouses is the subject of a note to Jerdee v. Furbush, 95 Am. St. Rep. 909. The general rule is that a deed of a homestead is ineffectual to convey title unless executed by both husband and wife: Lininger v. Helpenstell, 229 Ill. 369, 120 Am. St. Rep. 264; McDonald v. Sanford, 88 Miss. 633, 117 Am. St. Rep. 758; Bolen v. Lilly, 85 Miss. 344, 107 Am. St. Rep. 291. It is held in Silander v. Gronna, 15 N. D. 552, 125 Am. St. Rep. 616, that a contract to convey a homestead made by the husband alone is without validity, and damages cannot be recovered against him for its breach. And it is held in Weatherington v. Smith, 77 Neb. 363, 124 Am. St. Rep. 855, that neither husband nor wife can be estopped from asserting the homestead right as against a grant or mortgage not executed in the mode prescribed by law.

Estoppel Against Married Women is the subject of a note to Trimble v. State, 57 Am. St. Rep. 169. Subsequent cases on this question are Lewis v. Apperson, 103 Va. 624, 106 Am. St. Rep. 903; Baillarge v. Clark, 145 Cal. 589, 104 Am. St. Rep. 75; Waldron v. Harvey, 54 W. Va. 608, 102 Am. St. Rep. 959; National Lumberman's Bank v. Miller, 131 Mich. 564, 100 Am. St. Rep. 623; Cauble v. Worsham, 96 Tex. 86, 97 Am. St. Rep. 871.

KESSLER & CO. v. PARELIUS.

[107 Minn. 224, 119 N. W. 1069.]

EVIDENCE-Parol to Explain or Vary Writing.-Where the parties have deliberately put their contract into writing, complete in itself and couched in such language as imports a complete legal obligation, parol evidence is not admissible to introduce a term not con、 tained in the writing. The only criterion of completeness is the writing itself. It cannot be proved incomplete by showing an oral stipulation outside the writing; and yet it is not necessary that its incompleteness appear on its face from mere inspection. It is to be construed, as in any other case, in the light of its subject matter, and the circumstances in which, and the purposes for which, it was executed, which evidence is always admissible in the construction of written contracts, in order to put the court in the position of the parties. (By the editor.) (p. 460.)

BILLS AND NOTES-Parol to Explain or Vary Writing.In an action to recover on a promissory note, parol evidence was admissible to show that the parties had previously made an oral agreement for the purchase of a commodity in pursuance of which the note was given, that under such agreement the payee of the note was to make its maker a certain loan, and that the loan had not been in fact made. Wheaton Roller-Mill Co. v. Noye Mfg. Co., 66 Minn. 156, followed and applied. (p. 460.)

CONTRACTS-Rescission.-A Substantial Failure of Consideration of a contract may justify its rescission. (p. 460.)

APPEAL.-Various Assignments of Error Considered, and held

to be without substantial merit. (p. 461.)

(Syllabi by the court except when stated to be by the editor.)

John M. Rees, for the appellant.

Welch, Hayne & Hubachek, for the respondents.

225 JAGGARD, J. This is an action on a promissory note and for moneys paid for the use and benefit of the defendants. The note was given for certificates to certain whisky in a government bonded warehouse, which were delivered to the purchaser as a part of the transaction for which the note was given. The money advanced was for the government tax on a part of the whisky, which was afterward withdrawn from bond. Plaintiff rested its case upon the written contract, the note. The defendants, over plaintiff's objection, gave oral testimony as to what they claimed was the oral contract entered into at the time the note was given, to the effect that the plaintiff, through its agent, one Dowdall, had agreed, in addition to the contract to sell the whisky, to loan the defendants five hundred dollars as a part consideration for the note, and that on the following day plaintiff refused to make the loan. The defendants claimed that for this reason they had a right to rescind, and that they 226 had in fact rescinded, the contract, including the note. The jury found for

the defendants. This appeal was taken from the order denying plaintiff's motion for a new trial.

1. The first group of assignments of error are addressed to the proposition that the trial court committed reversible error in receiving parol testimony concerning the agreement to loan, because it disputed or added to the terms of the written contract. There is no merit in these assignments.

In Wheaton Rolling-Mill Co. v. John T. Noye Mfg. Co., 66 Minn. 156, 68 N. W. 854, it was held, per Mitchell, J., that "where, in the absence of fraud, accident or mistake, the parties have deliberately put their contract into writing which is complete in itself and couched in such language as imports a complete legal obligation, parol evidence is inadmissible to introduce into the contract a term which is not contained in the writing. The only criterion of its completeness or incompleteness is the writing itself. It cannot be proved to be incomplete by going outside of the writing, and proving that there was an oral stipulation entered into not contained in the written agreement. But, while the writing itself is the only criterion, it is not necessary that its incompleteness should appear on its face from mere inspection. It is to be construed, as in any other case, in the light of its subject matter, and the circumstances in which, and the purposes for which, it was executed, which evidence is always admissible in the construction of written contracts, in order to put the court in the position of the parties." And see Potter v. Easton, 82 Minn. 247, 84 N. W. 1011; Southwick v. Herring, 82 Minn. 302, 84 N. W. 1013.

In the case at bar no writing purporting on its face to contain the whole agreement appears in the record. The parol testimony admitted did not tend to contradict, dispute, or add to, or in any way affect, any term of the writing. It tended to show the situation of the parties when the note was executed, and the separate agreements then made, and that the agreement was a substantial part of the consideration of the note. Parol evidence is always admissible to show the actual consideration of a contract.

2. Plaintiff also urges that, in absence of fraud or mistake, partial failure of consideration is not sufficient ground for rescission, and refers us to 24 American and English Encyclopedia of Law, second edition, 644, 645. The citation 227 does not support plaintiff's proposition, but expressly sets forth that a total or substantial failure of consideration justifies rescission. That the jury was justified in finding that there was a substantial failure of consideration here is obvious.

3. Plaintiff appeals to the familiar rule that one who seeks to bind another by the acts of an agent must affirmatively prove the agent's authority, and that the agent's own statement on the subject is not sufficient. Here, however, there was sufficient evidence, apart from the agent's own statement, to sustain the verdict.

4. Further, plaintiff contends that, no damages or prejudice being shown, defendants were not entitled to rescind the contract. This point is without merit. The agreement to make the loan might properly have been found to have been a substantive part of the contract which the jury determined to have been made. If the jury so found, and also found for the defendant on other points, defendant was entitled to recover: Loveland v. Steenerson, 99 Minn. 14, 108 N. W. 831.

5. Finally, plaintiff urges error in the admission of evidence of a conversation prior to the date of the alleged oral agreement. No reversible error appears. It has been held that parol evidence was admissible to show what the real agreement was. It was, therefore, competent corroboration to show the negotiation immediately preceding it.

These are all the questions raised in plaintiff's original brief. At one place it is true there is a contention that the title to the whisky passed to defendants by delivery of the certificates and acceptance of the notes. Defendants' brief, which must have been prepared without having read plaintiff's brief, argues that the rescission was complete. Plaintiff filed a reply brief, in which he urged that the contract was executed fully and completely, and could not be rescinded except for fraud, which was not in issue in the case, because title had passed to the defendants. Such a record does not properly present the question for our consideration. The issue of rescission was, however, fully submitted to the jury by the trial court, under instructions to which no exceptions were taken, and which are themselves proper and conclusive upon the subject: Corse v. Minnesota Grain Co., 94 Minn. 331, 102 N. W. 728. No error in this connection appears. Affirmed.

Parol Evidence is Admissible to Show that a Note was not Delivered: McFarland v. Sikes, 54 Conn. 250, 1 Am. St. Rep. 111; and to show the nonperformance of a condition upon which the note was given: McCormick Harvesting Machine Co. v. Faulkner, 7 S. D. 363, 58 Am. St. Rep. 839. See the note to Hughes v. Crooker, 128 Am. St. Rep. 609. Parol evidence is also admissible to prove an agreement collateral to a promissory note: Carroll v. Nodine, 41 Or. 412, 93 Am. St. Rep. 743; Citizens' Bank v. Millet, 103 Ky. 1, 82 Am. St. Rep. 546; Sloan v. Gibbes, 56 S. D. 480, 76 Am. St. Rep. 559.

Parol Evidence is Admissible to Alter, Vary or Contradict a Writing, if such evidence establishes an oral agreement contemporaneous with the execution of the writing and on the faith of which it was executed: Gandy v. Weckerly, 220 Pa. 285, 123 Am. St. Rep. 691. And as between the original parties, the delivery of a written instrument which is in form a complete contract will not exclude parol evidence that such delivery was conditional, and that it was not to become a binding obligation upon the maker until the performance or discharge of such condition precedent: McNight v. Parsons, 136 Iowa, 390, 125 Am. St. Rep. 265.

ANDERSON v. WISCONSIN CENTRAL RAILWAY COM

PANY.

[107 Minn. 296, 120 N. W. 39.]

AUCTION-When Contract Completed.-An announcement or advertisement that certain property will be sold at auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received. It is not an offer to sell, which becomes binding, even conditionally, on the owner when a bid is made. (pp. 464, 478.)

AUCTION-When Contract Completed-Acceptance of Bid.—— An auctioneer asks for bids for the property, and. a bid is an offer to purchase at the price named. Until the offer is accepted, no contract relations exist. (pp. 477, 478.)

AUCTION-Withdrawal of Bid or of Property.-At any time before the bid is accepted, the bidder may withdraw his offer to purchase or the owner his offer to sell. (pp. 477, 478.)

(Syllabi by the court.)

Crassweller & Crassweller, for the appellant.

Jacques & Hudson, for the respondents.

297 ELLIOTT, J. The Wisconsin Central Railway Company, having acquired certain real property in the city of Duluth through condemnation proceedings, advertised that at a time and place stated, the buildings thereon would be sold at public auction. Bids for a certain house had been made until the amount offered amounted to six hundred and seventy-five dollars. Anderson then increased his bid five dollars, making his offer six hundred and eighty dollars. The auctioneer refused to consider this bid, because, as he stated, the amount of the raise was too insignificant. After waiting for a time to give Anderson an opportunity to increase it, the auctioneer announced that the house was sold to the last previous bidder for six hundred and seventy-five dollars. An entry of this sale was made by the auctioneer in his entry