
    ADA PHELPS v. WILLIAM C. SARGENT and Another.
    July 8, 1898.
    Nos. 11,012—(104).
    Second Appeal — Law of the Case.
    The decision on a former appeal (69 Minn. 118) held to be the law of the case.
    Written Contract — Parol Evidence.
    Rule applied that a written contract cannot be varied by proof of an oral contract alleged to have been made at the same time.
    Action in the district court for St. Louis county on a promissory note and a guaranty thereon. The cause came on for trial before Cant, J., and a jury, and at the conclusion of the testimony a verdict was directed in favor of plaintiff. From an order denying their motion for a new trial, defendants appealed.
    Affirmed.
    
      John G. Williams, for appellants.
    The note is absolutely due July 1, 1898. By subsequent provisions it might be declared due before that time, at the option of the holder, in case of default in payment of interest. There is an absolute maturity and a possible contingent maturity. The language of the guaranty is such as to leave it indefinite and ambiguous which maturity was in contemplation by the parties. Parol evidence was therefore admissible to explain the ambiguity. Gardner v. Watson, 76 Tex. 25; Pfeifer v. National L. S. Ins. Co., 62 Minn. 536.
    
      Davies cG Bureau, for respondent.
    This court has decided that the guaranty upon its face is not doubtful, and will allow of but one construction. Phelps v. Sargent, 69 Minn. 118. The case at bar certainly comes within the rule that a written contract cannot be varied by parol testimony. McCormick H. Machine Co. v.'Wilson, 39 Minn. 467; Minneapolis T. M. Co. v. Davis, 40 Minn. 110; Smith v. Mussetter, 58 Minn. 159.
   CANTY, j.

This is the second appeal in this action. See 69 Minn. 118, 71 N. W. 927. All of tbe questions raised on this appeal except one were disposed of on tbe former appeal, and have become tbe law of tbe case.

After tbe case was remanded on tbe former appeal, defendants answered, and allege in tbeir answer that, at tbe time defendant Howard transferred the note in suit to Hewit, it was agreed between them that “Howard should not be in any manner liable on said promissory note until after tbe maturity thereof on tbe 1st day of July, 1898.” It is not alleged that there was a mutual mistake in reducing this agreement to writing, or in incorporating it into tbe guaranty, and tbe answer contains no counterclaim for tbe reformation of tbe guaranty on any such ground. On tbe trial, defendants offered to prove that tbe above-quoted agreement was orally made at tbe time alleged.

Tbe court did not err in rejecting tbe offer, which was clearly an attempt to vary tbe written contract of guaranty by an alleged -oral agreement made at tbe same time that tbe written contract was made.

Tbe court did not err in ordering a verdict for plaintiff.

Tbe order denying a new trial is affirmed.  