Sathre, J.
The plaintiff Fred Reitman brought this action against the defendants F. C. Miller and Joe Kreller, jointly, to recover $1032.50 for combining 295 acres of crop on certain lands [1004]*1004owned by the defendant Miller and farmed by the defendant Kreller during the farming season of 1948. The complaint alleges that said land was farmed during said farming season by the defendant as tenant under a contract whereby the tenant and the owner were each to pay one half of the threshing or combining bill. The defendant Kreller admits the allegations of the complaint and offers to pay one half of the combining bill.
The defendant Miller answers separately denying the allegations of the Complaint, except that he admits that he owns the lands described in the Complaint. He alleges that as owner he was to furnish the seed and that Kreller was to furnish all labor and machinery, to pay all costs in connection with the farming operations, and to deliver the one half of the crop to the defendant Miller at the elevator without charge to Miller.
The case was tried to a jury which returned the following verdict for the plaintiff:
“We, the jury in the above entitled action find for the plaintiff and against the defendant F. C. Miller for the sum of $516.25 and against the defendant Joe Kreller for the sum of $516.25 damages and interest on both at 4% per annum from September 11,1948.”
The defendant Miller moved for a directed verdict in his favor at the close of the testimony and thereafter for judgment notwithstanding the verdict, or in the alternative for a new trial. The motion was denied by the trial court, and judgment was entered for the plaintiff in accordance with the verdict. The defendant Miller appeals from the judgment and from the order denying his motion.
The appellant assigns numerous specifications of error, but which may be considered under three heads:
Insufficiency of the evidence to support the verdict.
Error in the admission of evidence.
Erroneous instructions to the jury by the trial court. These specifications will be considered in the order stated.
. We will first consider the question as to the sufficiency of the evidence to support the verdict.
It is clearly established by the evidence that at the request of the defendant Kreller the plaintiff combined 295 acres of grain, [1005]*1005at $3.50 per acre, and that the grain was owned in equal shares by Miller and Kreller. The rental agreement between Miller and Kreller was in writing, was introduced • in evidence and is as follows:
“Underwood, N. D. Station 4-20-48
Renting Contract.
Joe Kreller First Party and Fred Miller Second Party for land NEi-8; NW|-9-149-82, Second Party to furnish seed and first party to crop and deliver to elevator and party to divide i crop to each party delivered at Elevator at Underwood, N. D. for 1948.
K. Tenneson Fred Miller
Witness' Joseph. Kreller.”
Miller contends that the written agreement is complete and unambiguous, that it clearly fixes the rights and obligations of the parties, and that by its express terms the only obligation of Miller was to furnish the land and the seed, and this he did; that Kreller was- to farm the land and deliver the one half of the crop to Miller at the elevator at Underwood at Kreller’s own expense.
Kreller contends that the agreement is ambiguous in that it is silent as to the expense of combining the grain and on this theory the trial court permitted him to testify to the following conversation had with Miller about a week before combining had started:
“I owned a small combine and I could only do straight combining but it was awful slow, and he wanted his grain combined as soon as possible. I did too. It was a good crop. I said I had a swather. I had a swather and a six foot combine, so it goes twice as fast as if I would do straight combining. And then he says — well, at that time we had had quite a wind storm and a lot of people lost a lot of grain — just blowed it away and they never even found it. So he said ‘I don’t believe that would be a good idea. We ought to straight combine’. I said that I would just as soon do it but with a six-foot combine, it would take a long time. He says ‘We can hire somebody to combine and we can get it reasonable under a good crop, like [1006]*1006that and it won’t cost too much’. I mentioned I could get a combine — in fact I looked úp two of them.”
He was then asked: Q. “Are you sure that he used the word ‘we’?” A. “Yes.” Q. “You are certain of them?” A. “Yes.”
Miller objected to the admission of this testimony upon the grounds that it was an attempt to vary the terms of a written contract in violation of the parol evidence rule.
It will be necessary to consider therefore whether the contract is ambiguous and subject to modification of parol evidence.
The obligations of the parties to the contract were clearly expressed by the language employed therein. Miller’s obligation was to furnish the land and the seed. Kreller was to crop .the land, and’ deliver the crop to the elevator and divide one half to each party. There is no ambiguity in the language of the written contract.
. “The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve absurdity.” Sec. 9-0702 NDRC 1943.
“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.” Sec. 9-0704 NDRC 1943.
“Where a written contract is complete in itself, is clear and unambiguous in its language, and contains mutual contractual covenants agreed upon, such parts cannot be changed by parol testimony, nor new terms added thereto, in the absence of clear showing of fraud, mistake or aceident.” Larson v. Wood, 75 ND 9, 25 NW2d 100.
We are satisfied that the written agreement between Miller and Kreller is a complete contract and that the trial court erred in admitting testimony which would vary its clearly expressed terms.
The defendant Kreller was permitted to introduce testimony as to custom and usage in the community relative to division of the expenses of threshing and combining between landlord and tenant, over the objection of Miller that it was an attempt to vary the terms of a written contract'by parol evidence.- With [1007]*1007reference to this testimony the trial court instructed the jury as follows:
“There is some evidence in the record as to the custom and usage. Evidence of usage is allowed not only to explain but also to add tacitly implied incidents to the contract in addition to those which are actually expressed and where a contract is not in itself a complete expression of the intention of the parties, valid and known usages, if not inconsistent with the express terms, are admissible to supply matters as to which the contract is silent. But where a contract is clear and complete, new terms cannot be added by usage.”
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Sathre, J.
The plaintiff Fred Reitman brought this action against the defendants F. C. Miller and Joe Kreller, jointly, to recover $1032.50 for combining 295 acres of crop on certain lands [1004]*1004owned by the defendant Miller and farmed by the defendant Kreller during the farming season of 1948. The complaint alleges that said land was farmed during said farming season by the defendant as tenant under a contract whereby the tenant and the owner were each to pay one half of the threshing or combining bill. The defendant Kreller admits the allegations of the complaint and offers to pay one half of the combining bill.
The defendant Miller answers separately denying the allegations of the Complaint, except that he admits that he owns the lands described in the Complaint. He alleges that as owner he was to furnish the seed and that Kreller was to furnish all labor and machinery, to pay all costs in connection with the farming operations, and to deliver the one half of the crop to the defendant Miller at the elevator without charge to Miller.
The case was tried to a jury which returned the following verdict for the plaintiff:
“We, the jury in the above entitled action find for the plaintiff and against the defendant F. C. Miller for the sum of $516.25 and against the defendant Joe Kreller for the sum of $516.25 damages and interest on both at 4% per annum from September 11,1948.”
The defendant Miller moved for a directed verdict in his favor at the close of the testimony and thereafter for judgment notwithstanding the verdict, or in the alternative for a new trial. The motion was denied by the trial court, and judgment was entered for the plaintiff in accordance with the verdict. The defendant Miller appeals from the judgment and from the order denying his motion.
The appellant assigns numerous specifications of error, but which may be considered under three heads:
Insufficiency of the evidence to support the verdict.
Error in the admission of evidence.
Erroneous instructions to the jury by the trial court. These specifications will be considered in the order stated.
. We will first consider the question as to the sufficiency of the evidence to support the verdict.
It is clearly established by the evidence that at the request of the defendant Kreller the plaintiff combined 295 acres of grain, [1005]*1005at $3.50 per acre, and that the grain was owned in equal shares by Miller and Kreller. The rental agreement between Miller and Kreller was in writing, was introduced • in evidence and is as follows:
“Underwood, N. D. Station 4-20-48
Renting Contract.
Joe Kreller First Party and Fred Miller Second Party for land NEi-8; NW|-9-149-82, Second Party to furnish seed and first party to crop and deliver to elevator and party to divide i crop to each party delivered at Elevator at Underwood, N. D. for 1948.
K. Tenneson Fred Miller
Witness' Joseph. Kreller.”
Miller contends that the written agreement is complete and unambiguous, that it clearly fixes the rights and obligations of the parties, and that by its express terms the only obligation of Miller was to furnish the land and the seed, and this he did; that Kreller was- to farm the land and deliver the one half of the crop to Miller at the elevator at Underwood at Kreller’s own expense.
Kreller contends that the agreement is ambiguous in that it is silent as to the expense of combining the grain and on this theory the trial court permitted him to testify to the following conversation had with Miller about a week before combining had started:
“I owned a small combine and I could only do straight combining but it was awful slow, and he wanted his grain combined as soon as possible. I did too. It was a good crop. I said I had a swather. I had a swather and a six foot combine, so it goes twice as fast as if I would do straight combining. And then he says — well, at that time we had had quite a wind storm and a lot of people lost a lot of grain — just blowed it away and they never even found it. So he said ‘I don’t believe that would be a good idea. We ought to straight combine’. I said that I would just as soon do it but with a six-foot combine, it would take a long time. He says ‘We can hire somebody to combine and we can get it reasonable under a good crop, like [1006]*1006that and it won’t cost too much’. I mentioned I could get a combine — in fact I looked úp two of them.”
He was then asked: Q. “Are you sure that he used the word ‘we’?” A. “Yes.” Q. “You are certain of them?” A. “Yes.”
Miller objected to the admission of this testimony upon the grounds that it was an attempt to vary the terms of a written contract in violation of the parol evidence rule.
It will be necessary to consider therefore whether the contract is ambiguous and subject to modification of parol evidence.
The obligations of the parties to the contract were clearly expressed by the language employed therein. Miller’s obligation was to furnish the land and the seed. Kreller was to crop .the land, and’ deliver the crop to the elevator and divide one half to each party. There is no ambiguity in the language of the written contract.
. “The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve absurdity.” Sec. 9-0702 NDRC 1943.
“When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible, subject, however, to the other provisions of this chapter.” Sec. 9-0704 NDRC 1943.
“Where a written contract is complete in itself, is clear and unambiguous in its language, and contains mutual contractual covenants agreed upon, such parts cannot be changed by parol testimony, nor new terms added thereto, in the absence of clear showing of fraud, mistake or aceident.” Larson v. Wood, 75 ND 9, 25 NW2d 100.
We are satisfied that the written agreement between Miller and Kreller is a complete contract and that the trial court erred in admitting testimony which would vary its clearly expressed terms.
The defendant Kreller was permitted to introduce testimony as to custom and usage in the community relative to division of the expenses of threshing and combining between landlord and tenant, over the objection of Miller that it was an attempt to vary the terms of a written contract'by parol evidence.- With [1007]*1007reference to this testimony the trial court instructed the jury as follows:
“There is some evidence in the record as to the custom and usage. Evidence of usage is allowed not only to explain but also to add tacitly implied incidents to the contract in addition to those which are actually expressed and where a contract is not in itself a complete expression of the intention of the parties, valid and known usages, if not inconsistent with the express terms, are admissible to supply matters as to which the contract is silent. But where a contract is clear and complete, new terms cannot be added by usage.”
This instruction was assigned as error on the ground that it was misleading and that there was no proof of any implied incidents to the expressed contract. Since the written agreement is complete in itself the testimony as to custom and usage was inadmissible. The instruction complained of was clearly erroneous. It left with the jury the inference that the written agreement was ambiguous and incomplete.
In 55 Am Jur under Usages and Customs, Section 29, page 289, the rule is stated thus :
“Generally speaking, proof of a usage or custom is justified only when there is ambiguity or uncertainty upon the face of a written contract, arising out of the terms used, and can he used only to the extent of clearing up obscurity. Evidence of custom or usage is inadmissible to add new stipulations to, or ingraft them upon an agreement upon its face complete, where the agreement, as it stands, is plain and unambiguous. A custom or usage ordinarily cannot he proved to add something not within the reasonable meaning of the language of the contract or to supplement an apparently complete contract.”
Under the title Parol Evidence as applied to farm leases, the following annotations are found in 151 ALR page 284:
“In the case of farm leases, it may be said that the courts are averse to permitting the use of parol evidence of custom or usage to vary the obligations of a written instrument which is complete and unambiguous. This conclusion was reached in the following cases decided since the preceding annotation on this [1008]*1008subject: May v. American Trust Co. (1933) 135 Cal App 385, 27 P2d 101; Huber v. Kerrick (1933) 251 Ky 439, 65 SW2d 449.
In the case of May v. American Trust Co., supra the court said:
“It is well-settled principle of law that custom or usage may be shown when the parties have not incorporated into an instrument all of the terms of their contract, and that evidence of usage is always admissible to supply a deficiency or as a means of. interpretation where it does not alter or vary the terms of a contract. Usage, however, is only admissible as an aid to the interpretation of an ambiguous or uncertain contract; and it is never admissible to vary the terms of a clear and unambiguous contract.”
In the case of Deacon v. Mattison, 11 ND 190, 91 NW 35 this Court said:
“Neither was it error to reject the offer of proof of custom above referred to. No evidence was introduced or offered to show and it is not alleged that the parties contracted in reference to any such custom. The plaintiff does not sue upon an obligation arising by virtue of a custom, but, on the contrary, bases his cause of action upon the express covenant contained in the written contract. Its language is in no sense ambiguous, and requires no reference to any custom or usage to ascertain the intention of the parties.”
The appellant Miller also challenged the following instruction of the trial court as violating the parol evidence rule:
“The parties, Miller and Kreller, had a right to make an independent agreement with reference to combining the grain. If they did make such an agreement, and if Miller agreed to pay for part of the combining, then such agreement can be enforced.”
Had the action been tried and submitted to the jury upon the sole issue whether Miller and his tenant Kreller subsequent to the written agreement had entered into an oral agreement to employ a third party to combine the grain, and complied therewith, the evidence would be admissible and sufficient to warrant the' verdict.
[1009]*1009Section 9-0906 NDRC 1943, provides:
“A contract in writing may be altered by a contract in writing or by an executed oral ágreement and not otherwise. An oral agreement is executed within the meaning of this section .whenever the party performing has incurred a detriment which he was not obligated by the original contract to incur.”
The syllabus in the case of Quinlivan v. Dennstedt Land Co., 39 ND 606, 168 NW 51, states the rule as follows:
“"While a written contract cannot be altered by a subsequent parol agreement, unless such agreement is executed, the contracting parties may nevertheless enter into a new parol agreement creating obligations separate from, and at variance with, the old ones, and such new agreement will be binding unless the agreement is one required by the statute to be in writing.”
However, under the instructions of. the trial court the case was submitted to' the jury on two inconsistent theories,- — one that the written agreement was ambiguous, and the other that the written contract was complete, but that the parties subsequently entered into an independent oral agreement which had been executed and which changed the terms of the written, agreement. We are unable to determine from the record upon what theory the jury rendered its verdict.
The general rule is that error in instructions as to one theory of a case cannot be regarded as harmless, if it is impossible to determine upon which of two theories the jury based its verdict. Stewart v. Newbury, 220 NY 379, 115 NE 984, 2 ALR 519.
In the case of Atlantic Coast Line R. Co. v. Tiller, 142 Fed2d 718 the rule is stated thus:
“Furthermore, since the verdict was general, it is impossible to say whether it was based upon the issue that was properly submitted to the jury or upon the issue that should have been withdrawn. The rule to be applied in such a situation is stated in Stokes v. United States, 8 Cir, 264 F 18, 23 as follows:
". . A general verdict under an erroneous instruction cannot be upheld, when there were two theories submitted to the jury, on either of which they might have founded it, under one of which the instruction was harmless, while under the [1010]*1010other it was error, because the generality of the verdict renders it impossible to determine upon which theory the jury based it. They may have founded it upon the very issue to which the erroneous instruction related, and that instruction may have controlled and produced their finding. State of Maryland v. Baldwin, 112 US 490, 493, 5 S Ct 278, 28 L ed 822; Lyon Potter & Co. v. First Nat. Bank of Sioux City (8 Cir) 85 F 123, 129, 29 CCA 45, 48’”.
In the case of Tisdale v. Panhandle & S. F. R. Co. (Texas) 228 SW 133, 16 ALR 1264, this situation was before the Texas Civil Court of Appeals in which that court held:
“Plaintiffs in error contend that, even though the trial court had erroneously submitted to the jury the issue in question, such fact did not require a reversal of the judgment, because three issues of negligence were submitted, and there is nothing in the record to show that the verdict was not returned on one or both of the other issues. We think this contention is unsound. The judgment was based upon a general verdict. It was impossible for the court of civil appeals to know, or for the plaintiffs in error to show, that the verdict was not based upon the charge complained of and held by said court to have been erroneously submitted.”
In the case of Hoeft v. State, 221 Ia 694, 266 NW 571, the Supreme Court of Iowa stated the rule in that state:
“It is the rule in this state that, where instructions are conflicting and inconsistent with each other, they are necessarily prejudicial. Morrison v. Railroad Co. 84 Iowa 663, 51 NW 75; Downing v. Insurance Co. 158 Iowa 1, 138 NW 917; Carlin v. Railroad Co. 31 Iowa 370; State v. Hartzell, 58 Iowa 520, 12 NW 557; Neville v. C. & N. W. 79 Iowa 232, 44 NW 367; State v. Schumacher, 195 Iowa 276, 191 NW 870; State v. Hillman, 203 Iowa 1008, 213 NW 603.”
Under the instructions of the trial court the jury was permitted to consider evidence under the erroneous theory that the written contract was ambiguous, and also on the theory that subsequent to the written agreement the parties had entered into an oral .independent agreement which had been executed. The jury ren[1011]*1011dered á general verdict but we cannot determine upon which theory the verdict' was rendered or whether it was rendered on both. For the reasons stated the judgment must be reversed and a new trial granted.
Morris, C. J., and Burke, J., concur.