Collins, J.
Appellant corporation was the owner and operator of an extensive steam flouring-mill in the city of Winona. In the same city were sawmills about which large quantities of sawdust and shavings accumulated during each running season, and, prior to the year 1890, written contracts had been entered into between the parties hereunto, under which respondent furnished and delivered at the flouring mill, and appellant received and used for fuel, the refuse accumulation of sawdust and shavings from at least one sawmill. On March 20th of the year just mentioned the parties signed a writing, dated on that day, in the following words and figures:
“ Winona, Minn., March 20, 1890.
“ It is hereby agreed between the Winona Mill Company and Chas. Beyerstedt that the latter is to receive for hauling, during the season of eighteen hundred and ninety, (1890,) twenty-five (25) cents per load for sawdust from Empire Lumber Company’s Mill, and thirty (30) cents per load for sawdust, and forty (40) cents per loadin double boxes for shavings, from Winona Lumber Company’s Mill, all delivered at our mill. All loads to be full boxes, and size of boxes same as old contract calls for.
■ [Signed] “ Winona Mill Co.
“ H. E. Brooks, Supt.
“ C. H. Beyerstedt.”
[9]*9The respondent soon afterwards commenced to deliver from the two mills mentioned in the writing, and appellant to receive and pay for, the specified articles, and such delivery, receipt, and payment continued until May 14th, when appellant’s gristmill was destroyed by fire. Having no further use for fuel, appellant thereafter refused to receive, and this action was brought to recover damages for a breach of an alleged contract under which it was averred the respondent, plaintiff, had agreed to furnish and deliver, and appellant, defendant, had stipulated to accept and receive, the entire accumulation or output of sawdust and shavings of the saw'mills, mentioned in the writing, for and during the season or year of 1890. A verdict was had for plaintiff, and the appeal, from an order denying a new trial, is based, mainly,upon alleged error in the rulings of the court below,-made after the writing of March 20th had been put in evidence, under which parol testimony as to the terms and conditions of the contract sued on was permitted and produced, and also error in the charge, whereby the jury were instructed that they could take into consideration all of this testimony when determining what the contract really was. It is appellant’s claim that, when permitting testimony tending to establish the contract set forth in the complaint, the trial court encroached upon and violated the exceedingly familiar rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. If this claim be well founded, the verdict must be set aside; for, obviously, the allegations of the complaint in respect to the terms and conditions of the agreement between the parties were not sustained by the wu-iting, and the testimony as to what sawdust and shavings were hauled and delivered by plaintiff, and received and paid for by defendant, after its execution. Without oral evidence of the contract, the verdict, of necessity, would have been for defendant. It is true that when parties have deliberately put their engagements into writing, in such terms as to import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the manner and extent of their undertaking, have been reduced to writing. Hence the rule. But before it can be appealed to, or have force, there must be a valid written in[10]*10strument. There must exist a writing, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. 1 Greenl. Ev. '§ 275. This rule of evidence has no application where the writing, on its face, is incomplete, in that it does not purport to contain the whole agreement, or, because lacking some of the essentials, falls short of being a contract. If it contains such language as imports a complete legal obligation, it is to be presumed that the parties have introduced into it every material item and term, and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed. Thompson v. Libby, 34 Minn. 374, (26 N W. Rep. 1.)
The appellant construes this writing as wholly free from ambiguity, and that under it the. corporation was obliged to take no more of the specified articles than it might, from time to time, elect to take. That is, the acceptance of any quantity, great or small, of sawdust or shavings, was absolutely optional with appellant corporation. Of course, a writing may be unambiguous, and yet not rise to the dignity of a contract, so that when oral evidence is received tending to show that there really was a contract between the parties, and what that contract was, the rule of evidence in question, which always presupposes a valid and complete engagement, is not disregarded or intruded upon. We are not inclined to differ with counsel for the appellant in their construction of this writing, for the only certain term to be found in it is that in respect to the prices per load — the size thereof to be ascertained by reference to a former contract — for such loads as plaintiff might deliver, and defendant might receive, during the season or year of 1890. No obligation rested upon the former to deliver, and none upon the latter to receive, a single load, and therefore the writing seems to have been nonenforceable, if either party declined to act. It is no answer to this to say, nor does it help the appellant for it to take the position, that, when the articles were delivered and accepted, the price per load named therein could be recovered, if not voluntarily paid, because the validity and completeness of a contract must be determined by its terms and conditions when made, and not by subsequent events. The [11]*11proposition of the court below that this writing, and on its face, was either invalid, for the reasons stated in Bailey v. Austrian, 19 Minn. 535, (Gil. 465,) or was an incomplete and imperfect obligation, not containing the entire contract, as were the writings considered in Domestic Sewing-Mach. Co. v. Anderson, 23 Minn. 57, and Boynton Furnace Co. v. Clark, 42 Minn. 337, (44 N. W. Rep. 121,) seems to be correct. If invalid upon its face, the real contract between the parties could be shown by párol; if not within the statute of frauds,— and of that hereafter, — and if incomplete and imperfect upon its face, the consideration and meaning thereof not being ascertainable, except by extrinsic oral evidence, such evidence was admissible for that purpose. From the proofs it appeared, without objection, that plaintiff had contracted for or purchased the entire output of sawdust and shavings of the sawmills for the season of 1890, that he might supply the defendant; that the entire quantity was needed by it for fuel during the year; and that the articles could not be allowed to accumulate at the sawmills.
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Collins, J.
Appellant corporation was the owner and operator of an extensive steam flouring-mill in the city of Winona. In the same city were sawmills about which large quantities of sawdust and shavings accumulated during each running season, and, prior to the year 1890, written contracts had been entered into between the parties hereunto, under which respondent furnished and delivered at the flouring mill, and appellant received and used for fuel, the refuse accumulation of sawdust and shavings from at least one sawmill. On March 20th of the year just mentioned the parties signed a writing, dated on that day, in the following words and figures:
“ Winona, Minn., March 20, 1890.
“ It is hereby agreed between the Winona Mill Company and Chas. Beyerstedt that the latter is to receive for hauling, during the season of eighteen hundred and ninety, (1890,) twenty-five (25) cents per load for sawdust from Empire Lumber Company’s Mill, and thirty (30) cents per load for sawdust, and forty (40) cents per loadin double boxes for shavings, from Winona Lumber Company’s Mill, all delivered at our mill. All loads to be full boxes, and size of boxes same as old contract calls for.
■ [Signed] “ Winona Mill Co.
“ H. E. Brooks, Supt.
“ C. H. Beyerstedt.”
[9]*9The respondent soon afterwards commenced to deliver from the two mills mentioned in the writing, and appellant to receive and pay for, the specified articles, and such delivery, receipt, and payment continued until May 14th, when appellant’s gristmill was destroyed by fire. Having no further use for fuel, appellant thereafter refused to receive, and this action was brought to recover damages for a breach of an alleged contract under which it was averred the respondent, plaintiff, had agreed to furnish and deliver, and appellant, defendant, had stipulated to accept and receive, the entire accumulation or output of sawdust and shavings of the saw'mills, mentioned in the writing, for and during the season or year of 1890. A verdict was had for plaintiff, and the appeal, from an order denying a new trial, is based, mainly,upon alleged error in the rulings of the court below,-made after the writing of March 20th had been put in evidence, under which parol testimony as to the terms and conditions of the contract sued on was permitted and produced, and also error in the charge, whereby the jury were instructed that they could take into consideration all of this testimony when determining what the contract really was. It is appellant’s claim that, when permitting testimony tending to establish the contract set forth in the complaint, the trial court encroached upon and violated the exceedingly familiar rule that parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument. If this claim be well founded, the verdict must be set aside; for, obviously, the allegations of the complaint in respect to the terms and conditions of the agreement between the parties were not sustained by the wu-iting, and the testimony as to what sawdust and shavings were hauled and delivered by plaintiff, and received and paid for by defendant, after its execution. Without oral evidence of the contract, the verdict, of necessity, would have been for defendant. It is true that when parties have deliberately put their engagements into writing, in such terms as to import a legal obligation, without any uncertainty as to the object or extent of such engagement, it is conclusively presumed that the whole engagement of the parties, and the manner and extent of their undertaking, have been reduced to writing. Hence the rule. But before it can be appealed to, or have force, there must be a valid written in[10]*10strument. There must exist a writing, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions. 1 Greenl. Ev. '§ 275. This rule of evidence has no application where the writing, on its face, is incomplete, in that it does not purport to contain the whole agreement, or, because lacking some of the essentials, falls short of being a contract. If it contains such language as imports a complete legal obligation, it is to be presumed that the parties have introduced into it every material item and term, and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed. Thompson v. Libby, 34 Minn. 374, (26 N W. Rep. 1.)
The appellant construes this writing as wholly free from ambiguity, and that under it the. corporation was obliged to take no more of the specified articles than it might, from time to time, elect to take. That is, the acceptance of any quantity, great or small, of sawdust or shavings, was absolutely optional with appellant corporation. Of course, a writing may be unambiguous, and yet not rise to the dignity of a contract, so that when oral evidence is received tending to show that there really was a contract between the parties, and what that contract was, the rule of evidence in question, which always presupposes a valid and complete engagement, is not disregarded or intruded upon. We are not inclined to differ with counsel for the appellant in their construction of this writing, for the only certain term to be found in it is that in respect to the prices per load — the size thereof to be ascertained by reference to a former contract — for such loads as plaintiff might deliver, and defendant might receive, during the season or year of 1890. No obligation rested upon the former to deliver, and none upon the latter to receive, a single load, and therefore the writing seems to have been nonenforceable, if either party declined to act. It is no answer to this to say, nor does it help the appellant for it to take the position, that, when the articles were delivered and accepted, the price per load named therein could be recovered, if not voluntarily paid, because the validity and completeness of a contract must be determined by its terms and conditions when made, and not by subsequent events. The [11]*11proposition of the court below that this writing, and on its face, was either invalid, for the reasons stated in Bailey v. Austrian, 19 Minn. 535, (Gil. 465,) or was an incomplete and imperfect obligation, not containing the entire contract, as were the writings considered in Domestic Sewing-Mach. Co. v. Anderson, 23 Minn. 57, and Boynton Furnace Co. v. Clark, 42 Minn. 337, (44 N. W. Rep. 121,) seems to be correct. If invalid upon its face, the real contract between the parties could be shown by párol; if not within the statute of frauds,— and of that hereafter, — and if incomplete and imperfect upon its face, the consideration and meaning thereof not being ascertainable, except by extrinsic oral evidence, such evidence was admissible for that purpose. From the proofs it appeared, without objection, that plaintiff had contracted for or purchased the entire output of sawdust and shavings of the sawmills for the season of 1890, that he might supply the defendant; that the entire quantity was needed by it for fuel during the year; and that the articles could not be allowed to accumulate at the sawmills. It also appeared that for several years prior to 1890 the plaintiff and defendant had entered into and fulfilled contracts of the import and character of that set forth in the complaint herein, and that these old contracts, were in mind and referred to by both parties, when, on March 20, 1890, the making of a new one was being considered, and that one of these contracts was mentioned, and, as to the size of the loads, actually made a part of the writing of that date. This testimony defined the nature and quantity of the subject-matter. It showed the situation and relation of the parties, and the meaning of some of the terms used, if we regard the writing as imperfect and incomplete.
It was shown on the trial that, at the stipulated price per load, about $800 had been paid to plaintiff for sawdust and shavings delivered prior to the destruction of defendant’s mill. Treating the contract testified to by plaintiff as one for the sale and delivery of goods for a price exceeding $50, not in writing, and therefore void under the statute of frauds, it is urged by defendant’s counsel that no part of the goods were accepted and received, and hence this action cannot be maintained. This view of the case does not appear to have been presented to the trial court at any time. But, assuming that it was [12]*12a contract for the sale and delivery of goods and chattels for a price exceeding $50, it is obvious that the purchaser accepted and received a part of the same. It may be, as argued by counsel, that the quantity of the output of sawdust and shavings could not be definitely ascertained when the contract was made, and • was not at the end of the season. The agreement was for the entire amount made by the two mills named, the size and capacity of each being known, undoubtedly, to the parties. The amount of this output of refuse could have been ascertained as readily, and by the same methods, as the amount of lumber and shingles the mills could manufacture during the same season. It was a matter of computation, and easily determinable. It is true that the amount was not actually ascertained during the season, but that was because the defendant refused to receive, and it not only became useless to plaintiff, but, under his agreement with the owners of the sawmills to speedily remove, and not to allow an accumulation, a positive detriment. As to appellant’s second point upon this branch of the case, we need only say that there was evidence from which the jury were justified in finding that the delivery up to May 15th was under the contract as testified to by plaintiff, and not under that claimed by defendant. We are of the opinion that the remaining assignments of error need not be specially mentioned.
(Opinion published 51 N. W. Rep. 619.)
Order affirmed.