¶1A question made at this trial was, whether the memorandum annexed to the note contained the agreement which the parties made, to settle the terms and conditions upon which the note should be given up to the plaintiff. The defendant assumed that it did contain the agreement, and therefore contended that verbal evidence should not be admitted to prove a different agreement.
¶2The plaintiff, however, denying that he ever admitted the writing as the agreement, or ever assented to its terms, proposed, nevertheless, to show that an agreement was made between the parties, by the performance of which on his part he became entitled to the note. .
¶3The writing was not signed by the plaintiff, and there*517fore wanted that strong presumptive proof of being his agreement, upon which courts ordinarily proceed, when they determine that the written agreement has been so fully established as to call for the application of the well known rule of evidence, which precludes the admission of testimony to contradict the writing.
¶4"Whether the writing was in fact the agreement of the parties was, as it always is, a question for the jury. Upon this question, evidence was accumulated on either side, and there was not that clear preponderance on the part of one or of the other that could possibly call for or justify the application of the rule. The court could not say that the instrument was clearly proved; but, on the contrary, the evidence was such as would justify the jury in finding that it was not the plaintiff’s agreement.
¶5But the plaintiff’s ease was founded on an agreement; and unless the one produced was his, it required that he should have leave to prove what it was.
¶6The jury were, in effect, it would seem, properly instructed, that if the writing produced was the plaintiff’s agreement, and so found by them on weighing the evidence, they should inquire no further as to what the agreement was, nor regard any evidence tending to show a different agreement.
¶7But if they should find that the plaintiff had not adopted the writing for his agreement, then they might inquire whether any had been made, and what it was.
¶8The rule which excludes unwritten proof to contradict or vary the terms of a written agreement, can be applied only when the written agreement is proved to have existed between the parties. When the affirmative is perfectly clear the court will apply the rule and reject the offered proof. When, however, as in this case, it is doubtful, the jury are directed to inquire, and if a case is made, to apply the rule.
¶9The evidence was properly admitted, and there must be
¶10Judgment on the verdict.