right must claim under the original mortgage. He must ask to have it restored in an action brought for that purpose, or instituted to forclose it, or after he has obtained title under foreclosure of it. Equity can merely decree the re-establishment of the lost lien, or, when it has been foreclosed, give the title under it the same precedence it would have possessed had the lien never been satisfied. But the courts will not decree that the creditor who forecloses has secured by foreclosure of an inferior lien the same title he would have received had he enforced his superior lien. The judgment of the district court is affirmed.
Wallin, J., having been of counsel, did not sit; Templeton, J., of the first judicial district, sitting by request.
Northwestern Fuel Company, Plaintiff and Appellant, v. Henry A. Bruns, Defendant and Respondent.
1. Written Contract—Parol Evidence.
Defendant having written plaintiff asking if it could furnish defendant coal at same prices and terms as previous season, if he used about one-half to two-thirds of amount used the previous season, and plaintiff having, by letter, in answer to this inquiry, offered to sell at the price of $3.50 per ton, and defendant having thereafter, by letter, accepted the offer, held, that parol evidence to show that, intermediate plaintiff's offer and defendant's acceptance, the parties fixed the amount of coal to be delivered at the full amount used by defendant the season before, instead of one-half to two-thirds, as stated in defendant’s letter, was inadmissible, because it varied the terms of the written contract.
(Opinion Filed May 6, 1890.)
APPEAL from district court, Cass county; Hon. Wm. B. McConneell, Judge.
Alf E. Boyesen, for appellant, cited, upon the proposition stated in the foregoing syllabus the following authorities: 2 Phil. Evidence, 668-9; Naumberg v. Young, 44 N. J. L. 331; Hei v. Heller, 53 Wis. 415; La Farge v. Rickert, 5 Wend. 187; Creery v. Holly, 14 Wend. 26; Stone v. Harmon, 31 Minn. 512.
R. R. Briggs, for respondent, cited: Parsons on Cont. vol. 2, p. 602; Jones on Commercial and Trade Cont. p. 280; Hub-
