paid over to McFadden the entire amount of his earnings, thus paying over money which belonged to plaintiffs, and in total disregard of the assignment, the loss, if any, will have to be sustained by Mullen, not by plaintiffs. The notice of assignment duly served upon Mullen fixed the rights of all parties, and protected the assignees. The effect of such assignment and notice could not be avoided, directly or indirectly, by any thing Mullen might do.

Judgment affirmed.

AN ASSIGNMENT OF PART OF A DEMAND is good in equity, though not at law: McDaniel v. Maxwell, 21 Or. 202; 28 Am. St. Rep. 740, and note; Whittemore v. Judd etc. Oil Co., 124 N. Y. 565; 21 Am. St. Rep. 708, and note; Exchange Bank v. McLoon, 73 Me. 498; 40 Am. Rep. 388; Thallhimer v. Brinckerhoff, 3 Cow. 623; 15 Am. Dec. 308. The assignment may be made either by direct transfer or by an order drawn upon the particular fund: Harris Co. v. Campbell, 68 Tex. 22; 2 Am. St. Rep. 467, and monographic note there to discussing the subject of assignment of part of a demand. No particular form of words or writing is necessary to effect it. It may be wholly in writing or in parol, or partly in both, but it must designate the particular fund upon which it is intended to operate. After notice to the debtor he is bound to apply the fund according to the terms of the assignment: McDaniel v. Maxwell, 21 Or. 202; 28 Am. St. Rep. 740; but, if payment is made before notice of the assignment, the debtor is not liable to the assignee: Harvin v. Galluchat, 28 S. C. 211; 13 Am. St. Rep. 671. The debtor's acceptance or promise, in equity, neither creates, increases, nor diminishes his liability to the assignee: See monographic note to McDaniel 7. Maxwell, 28 Am. St. Rep. 746.

AULTMAN V. CLIFFORD.

[55 MINNESOTA, 159.]

PAROL EVIDENCE IS ADMISSIBLE TO FILL OUT INCOMPLETE CONTRACT.If a written order for the purchase of a chattel is incomplete, parol evidence is as admissible to show what the whole agreement was as that the article was ordered upon condition that it should be of a certain quality, and that performance on the buyer's part depended upon a compliance with the condition. CONTRACTS-AMBIGUITY.—If a written order for the purchase of a chattel

contains the words "note for one hundred and ten dollars; three fall payments at eight per cent," the time of payment is uncertain and ambiguous, and the order is incomplete on its face.

SALE. A DELIVERY OF PROPERTY SO AS TO PASS THE TITLE, and make the transaction an executed contract of sale, must be a delivery of the property corresponding with the order or contract of purchase, which is a condition precedent to the vesting of the title in the vendee.

DEFENDANT appealed from an order granting plaintiff's motion for a new trial after a verdict for the defendant.

A. S. Crossfield, for the appellant.

E. T. Young, for the respondent.

159 BUCK, J. The plaintiff brought suit against the defendant in the district court for the sum of one hundred and ten dollars upon the instrument, of which the following is a copy, viz:

"July 13th, 1891.

"I have this day ordered of Aultman, Miller & Co. one seven-foot Buckeye binder, for which I agree to pay one hundred and forty dollars-note for one hundred and ten dollars, and his old McCormick binder; three fall payments at eight per cent. The binder to be delivered on or before July 25th, 1891."

Before the last-named date the parties substituted a six-foot binder, with bundle carrier, in the place of the seven-foot binder mentioned in the original order, but upon the same terms. The 160 defendant refused to execute the notes, for the reason that the binder was not such as plaintiff represented and warranted it to be. In the month of December following this action was commenced for the full amount of the three notes mentioned in the order. The defendant answered, and alleged that at the time of ordering said machine, and as part of the terms of the contract of said purchase, plaintiff orally represented that it would furnish a binder to be of good material, well made, light draft, and as good as any other machine manufactured for the purpose of cutting and binding grain, and that the binder so to be furnished would in fact cut and bind grain as well as any other machine manufactured for such purpose; and that defendant, relying upon such representations, was thereby induced to give such order.

Upon the trial the evidence fully sustained the contention of the defendant, and the jury so found.

Before submitting the case to the jury the plaintiff asked the court to instruct the jury to find a verdict for plaintiff, for the reason that the contract of sale in this case was in writing, and contained no warranty, and that, therefore, no oral warranty could be shown to vary the terms of the written contract. The court denied this motion, and the plaintiff excepted. Afterward the plaintiff moved for a new trial, upon the minutes of the court, and it granted a new trial, holding that this case is controlled by the decisions of this

court in the cases of Thompson v. Libby, 34 Minn. 374, and Kessler v. Smith, 42 Minn. 494.

Nothing in this opinion is to be construed as in any manner trenching upon the rule or doctrine laid down in those

cases.

This was an executory instrument. The plaintiff had twelve days in which to furnish the binder, and the notes were to be executed in the future. It does not appear that the binder was in existence at the time the order was given. The defendant had no opportunity to inspect it or test its fitness or capability for doing the work for which he had or dered it. Now, a party receiving an order for a binder for doing a certain kind of work does not fulfill the conditions of the order by furnishing a binder of a different kind, and which will not do the work of the binder ordered.

This is not the case of a binder being present at the time the order 161 was given, and the seller then warranting the binder to do good work, but a case of an executory instrument, incomplete on its face, and not purporting to give the whole of the mutual executory engagements of the parties.

The term "three fall payments, at eight per cent," of one hundred and ten dollars, is uncertain and ambiguous. The term "fall," when applied to the seasons of the year, is defined by Webster to mean "the season when the leaves fall from the trees." If the word "fall," as used in this order, means during the months of September, October, and November, then its ambiguity is apparent, for in such case it would be payable in some of those months; but whether September 1st, or the middle of October, or the last day of November, there is no legal way of determining. The plaintiff might claim that the payments would each be due the first day of September of each year, and the defendant with equally as much confidence claim that they would not be due until the last days of November of each year, and this ambiguity lead the parties into that very litigation which the law seeks to avoid, by requiring contracts to be definite and certain, or, in other words, complete contracts in themselves. If there was no time mentioned at all, then it would be understood by the parties to be a cash payment, or that delivery and payment were to be concurrent acts. In the case of O'Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54, an instrument of sale provided that the consideration should be one-third cash down, but it was silent as to when the rest should be paid,

and it was held to be an incomplete instrument, and that no action could be maintained upon it at law or in equity. In this case there was not that legal delivery or acceptance of the property which passed the title to the defendant. There was an actual physical delivery of the binder to the defendant, and a temporary use of it by him, but he did not receive any substantial benefit from its use, and returned it to the premises of the plaintiff, where it was left, although plaintiff refused to accept it. A delivery of property, so as to pass the title to it and make the transaction an executed contract, should be a delivery of the property corresponding with the order or contract, which is a condition precedent to the vesting of the title in the vendee: 10 Am. & Eng. Ency. of Law, 104, 105. The written instrument or order being incomplete, and not purporting 162 on its face to express the whole of the mutual agreement of the parties, parol evidence was admissible to show an oral agreement on the part of plaintiff, which constituted a condition on which defendant gave the written order, and on which performance on his part was to depend, as that the binder should be of a certain quality. The jury must have found that the plaintiff did not in this respect comply with its parol warranty and representations, and, if not, then there was not such legal delivery and acceptance of the binder by defendant as bound him to retain or pay for it.

The oral evidence respecting the parol warranty was properly admitted, and the court below erred in granting a new trial. For this error the order granting such new trial is reversed.

PAROL EVIDENCE IS ADMISSIBLE TO PROVE THAT A WRITTEN CONTRACT HAS BEEN ADDED TO, CHANGED, OR SUPERSEDED BY AN ORAL AGREEMENT: Bannon v. Aultman, 80 Wis. 307; 27 Am. St. Rep. 37. A parol agreement collateral to, but not inconsistent with, the written agreement on a distinct subject matter, may be proved: Durkin v. Cobleigh, 156 Mass. 108; 32 Am. St. Rep. 436, and note. If a written contract of sale is manifestly incom. plete parol evidence is admissible to show a contemporaneous agreement that the property should be of a particular quality, kind, or quantity: See note to Green v. Batson, 5 Am. St. Rep. 197.

PAROL EVIDENCE IS ADMISSIBLE TO EXPLAIN AN AMBIGUITY IN A WRIT ING whether latent or patent: Shore v. Miller, 80 Ga. 93; 12 Am. St. Rep. 239, and note. For a case of a latent ambiguity, rather than of mistake as to the person designated as beneficiary in a deed, see Houston v. Bryan, 78 Ga. 181; 6 Am. St. Rep. 252.

SALES. DELIVERY OF GOODS, even to a carrier, under an executory con. tract of sale vests title in the ven lee, if they correspond with the contract; AM. ST. REP., VOL. XLIIL-31

but the rule is otherwise where the goods do not so correspond: Pierson v. Crooks, 115 N. Y. 539; 12 Am. St. Rep. 831, and note. In case of an execu. tory contract for the manufacture of articles to be delivered at a future day there is always an implied warranty that the articles delivered shall answer the purpose for which they were designed: See note to McCray Refrigerator etc. Co. v. Woods, 41 Am. St. Rep. 606. The purchaser is not bound to accept articles of a different kind or quality from those ordered for his purpose. That an article shall possess certain qualities is not a mere warranty, but a condition precedent to liability on the part of the vendee: American Bronze Co. v. Gillette, 88 Mich. 231; 26 Am. St. Rep. 286, and note; Harrow Spring Co. v. Whipple Harrow Co., 90 Mich. 147; 30 Am. St. Rep. 421. That there is an implied warranty that a manufactured article will answer the purpose intended, see Edwards v. Dillon, 147 Ill. 14; 37 Am. St. Rep. 199, and note.

GIBSON V. MINNEAPOLIS, ST. PAUL, AND SAULTE STE. MARIE RAILWAY COMPANY.

[55 MINNESOTA, 177.]

JURY TRIAL.-THE COURT HAS A RIGHT TO URGE THE JURY TO AGREE UPON ▲ VERDICT. Hence, after the jury has been out over twenty hours, it is not error for the trial court, upon the jury's coming in a second time, to instruct that, if one or two of them differ in their views of the evidence from the others, they should thereby be induced, although not required, to surrender conscientious convictions, and to doubt the correctness of their own judgments, and that this disparity of opinion should lead them to inquire whether they are not mistaken.

JURY TRIAL-INSTRUCTIONS.-It is not error for the court to refuse to give an instruction fully covered in the general charge.

▲ VERDICT WILL NOT BE DISTURBED ON APPEAL if there is any evidence to support it.

ACTION to recover damages for injuries occasioned by negligence. The plaintiff, Gibson, was a locomotive engineer employed by defendant on a switch engine in its yard. Plaintiff testified that on August 25th he entered in the repairbook at the engine-house a request to fix the footboard, described in the opinion, that it was not fixed, and that it fell on August 29th. The fireman on the engine testified that the footboard did not fall down, that on a former trial he had testified falsely, at plaintiff's instance, that it did fall, and that he had fixed it up again the same evening. Another witness testified that no entry was made in the repair-book as to this engine on August 25th; that Gibson came to the engine-house the next March, and made the entry at that time in his presence, and induced him to testify falsely on the former trial that the entry was made on August 25th.