the bank was to have the custody of it; that he made the policy payable to the bank according to instructions. It appeared that the whole amount of insurance that was obtained upon the policy was applied and indorsed upon the note in question. It further appeared that the insurance was settled by the plaintiff's agent or attorney for the sum of $469.40.

At the close of the testimony, the plaintiff moved the court to direct a verdict for the plaintiff for the amount due upon the note. This was refused by the court, whereupon the plaintiff requested the court to charge the jury as follows:

"First. That there is no evidence on the part of the defendant Coleman that releases him from the obligation to pay the full amount due upon the note.

"Second. That his knowledge of the removal of the goods up to the time of the fire without objection, or without direction to the bank, was a waiver of any claims he might have upon the bank in the way of charging them with failure to perform their duty under his assumed agreement.

"Third. That it was his duty primarily to look after the insurance of the goods himself, if he desired to be protected by the insurance.

"Fourth. That he could not delegate that authority to the cashier of the bank, who was the representative of the other party to the contract, because it would make him the agent of both parties."

The trial court submitted the case to the jury and stated the claim of the defendant Coleman to be as follows:

"It is the claim of Mr. Coleman that it was the duty of the bank, under this special agreement, to notify him of this change in the location of the goods, and their duty to see that this insurance was kept good-was kept aliveand that it was their duty to have this policy indorsed by the local agent and approved by the company with a permit to change the location of the goods from one building to another, or that a new policy was taken out, if that were necessary. * If you find in accordance with the claim of Mr. Coleman, then you will determine the amount that Mr. Coleman has lost by reason of the fail

ure of the bank to keep its agreement with him; and, if you find that it amounts to the sum of $258.91, then you will bring in a verdict of no cause of action as to Mr. Coleman. I understand that it is admitted by counsel that the Featherlys are liable for this balance of $258.91."

The jury returned a verdict for the plaintiff against the defendants Gerald L. Featherly and Blanche Featherly, and in favor of the defendant Coleman.

The plaintiff has brought the case here upon writ of

error.

(1) Its first assignment of error is to the effect that the court erred in overruling plaintiff's objection to the following question put to the witness Gerald L. Featherly:

"What was said by Mr. Coleman about signing the note with you ?"

(2) That the court erred in overruling the plaintiff's objection to the following question put to the witness Frank Coleman :

"Now, at the time, state whether or not you made any conditions of signing this note; state what they were?"

(3) That the court erred in refusing to grant the motion of plaintiff to direct the jury to find a verdict against all of the defendants for the reason that there was no evidence on the part of the defendant Coleman tending to show that he was released from liability upon the note in question.

(4) The fourth, fifth, sixth, and seventh assignments respectively allege that the court erred in refusing to give each of plaintiff's requests as hereinbefore set forth.

(5) The eighth assignment of error is to the effect that the court erred in its instruction to the jury as follows:

"But if the evidence preponderates in his favor, which means if you believe that evidence in preference to the evidence which is opposed to it, or against it, then he has met this requirement of the law."

The plaintiff and appellant has argued the case under the two leading questions: (1) Whether there was any

testimony in the case to base a verdict upon in favor of the defendant Coleman; and (2) whether any failure on the part of the plaintiff to perform any duty claimed by defendant was not waived by his attending to the business after the goods were moved to a new location, and asking and consenting to an extension of the note, and not looking to the insurance company himself, while there upon the ground, if he wished to be protected.

1. Was there any testimony making a case for the jury? We think the meritorious question in the case is whether the parol agreement claimed by the defendant Coleman to have been made with the plaintiff's cashier, at the time the former signed the note, can be shown, or whether all such conversation or agreement was merged in the note itself. It is a general rule of law that parol evidence is inadmissible to vary or contradict a valid written contract; therefore, if a bill or note be absolute upon its face, no evidence of a verbal agreement made at the same time qualifying its terms can be admitted. This doctrine is elementary and may be said to be fully covered by numerous decisions of this court. Phelps v. Abbott, 114 Mich. 88 (72 N. W. 3). Our first impression was that the case was governed by this doctrine, but a more thorough examination of the question has led us to the conclusion that the evidence offered and received of the claimed agreement that the bank would look after the insurance and keep it in force upon the stock of goods and fixtures was not an agreement in any manner to alter, contradict, or vary the terms of the promissory note, but that it falls within the class of cases which holds that it is not a violation of the rule to show by extrinsic evidence an entirely distinct and collateral contract, although being a part of the same transaction. 2 Jones on Evidence (1st Ed.), § 50%, and cases there cited; Brent's Ex'rs v. Bank of the Metropolis, 1 Pet. (U. S.) 89; Phillips v. Preston, 5 How. (U. S.) 278.

The doctrine is well stated in 21 Am. & Eng. Enc. Law (2d Ed.), p. 1094, as follows:

"Again, the parties to a written agreement, which is complete in itself, may at the time of its execution, or previously, have entered into a collateral parol agreement concerning some matter on which the written instrument is silent, and the rule does not preclude the proof of such collateral agreement, provided no attempt is made to vary or contradict the writing. Any independent fact or collateral parol agreement, whether contemporaneous with or preliminary to the main contract in writing, may be proved, provided it does not interfere with the terms of the written contract, though it may relate to the same subject-matter."

Many cases are there cited.

The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of extrinsic evidence to show prior or contemporaneous collateral parol agreements between the parties. The general rule admitting evidence of a collateral agreement is especially applicable where such agreement operates as an inducement for entering into the written agreement. 17 Cyc. p. 713 et seq.; American Building & Loan Ass'n v. Dahl, 54 Minn. 355 (56 N. W. 47). In the cited case it was held that evidence of an independent agreement, made by parol between sureties and the obligee in an idemnity bond, at the time of the execution thereof, and as an inducement therefor, was competent and material on the part of the sureties and not tending to vary the terms of the bond itself. The court said:

* *

"The agreement referred to, which the evidence in the case tended to establish, was a verbal one, and the plaintiff claims that evidence thereof was inadmissible, because tending to vary the terms of the written agreement or bond executed by the defendants. This objection, however, is clearly not well taken. * It [the agreement] did not tend to vary the terms of the bond, but shows the inducement and conditions upon which the defendants executed the same. It relates to the execution of the bond, and not to the terms or conditions appearing on the face thereof. The distinction is obvious, and de

cisive of the case"- citing Brandt on Suretyship and Guaranty (2d Ed.), § 405.

See, also, Joyce on Defenses to Commercial Paper, § 323, and cases cited; Blackwood v. Brown, 34 Mich. 4; Fink v. Chambers, 95 Mich. 508 (55 N. W. 375); Buhl v. Mechanics' Bank, 123 Mich. 591 (82 N. W. 282); Mt. Vernon Stone Co. v. Sheely & Co., 114 Iowa, 313 (86 N. W. 301); Hand v. Drug Co., 63 Minn. 539 (65 N. W. 1081); Germania Bank v. Osborne, 81 Minn. 272 (83 N. W. 1084).

We think it was perfectly competent for the defendant to require of the bank, as a condition of the signing of the note as surety for the other defendants, that the bank should undertake and promise to see that the insurance upon the stock and fixtures was continued in force. The policy was already in existence and in the possession of the bank, and we think that such a promise, if made by the bank as an inducement to the signing of the note by defendant Coleman, was a legal, binding contract. Certainly it was to do a lawful thing for the protection of the defendant Coleman, and was based upon a sufficient consideration moving between the parties. This suit is between the original parties, and this defense is claimed by way of recoupment in the nonperformance of this oral agreement, which, it is true, was a collateral agreement, but one which related to the subject-matter with which the parties were dealing.

While the evidence is not as explicit as might be desired, yet, in our opinion, it was sufficient to carry the case to the jury.

2. The next question discussed is whether defendant Coleman waived his rights under the agreement. It is claimed that he had, because he was on the ground two or three days before the fire and made no objection to the bank for failure to perform its duty under the agreement. We have read this evidence with some care, and are unable to find that Mr. Coleman at this time had any knowl