(specially concurring). Tbe result reached in this case by Justice Christianson, tbe writer of tbe opinion, is unquestionably correct. It is contended by tbe plaintiff, that certain testimony introduced at tbe trial of tbe case by tbe defendant, to tbe effect that there *91was an understanding between the parties, exclusive of the written contract, that the building plans referred to in the contract were intended for a building that should be constructed at a cost not to exceed $60,000, was inadmissible, for the reason that it tended to vary and contradict the terms of the written contract. This contention is without merit, for it is apparent from the written contract it is not complete. It does not cover all the subject-matter of the contract. It does not set forth the cost of the building nor its height, nor does it specify the materials of which it was to be constructed.
These are material elements of the contract; they are among the most important elements of its subject-matter. It would appear to a reasonable mind there must have been some agreement relative to such important matters. These matters not having been included in the written contract it was competent to admit evidence to show that a parol agreement with reference to them was made.
Not only is the rule that such evidence is properly admissible in such case recognized in Putnam v. Prouty, 24 N. D. 517, 140 N. W. 93, but it is, also more fully stated in the case of Gilbert Mfg. Co. v. Bryan, 39 N. D. 13, 166 N. W. 805, wherein, in the syllabus of that case, appears the following language: “Where a written contract is not complete and where it does not cover the whole subject-matter of the contract, where there is a part of the subject-matter of the contract not incorporated in the written agreement, oral testimony is admissible to establish such part as is not included in the written agreement, or, if the contract is partly written and partly verbal, that part which is verbal may be proved by oral testimony, but in so far as the written contract covers and treats of the subject-matter and sets forth the covenants entered into and terms agreed upon, such written contract and the terms thereof cannot be varied by the introduction of oral testimony.”
We are of the opinion the testimony introduced was well within the rule as expressed in the language just quoted, and it was properly admissible.
The main opinion contains, substantially, the following language: Where there is any substantial evidence to support the verdict, the granting or denial of a new trial, on the the ground of insufficiency of the evidence, rests in the sound judicial discretion of the trial court, *92and tbe ruling will not be disturbed unless a clear abuse of discretion, is shown.
We are inclined to conclude that the language just quoted involves a. contradiction, for, where there is substantial evidence to support the-verdict, insufficiency of evidence to support the verdict cannot be present. If it be conceded there is substantial evidence to support the verdict, then it is supported, and there is not an insufficiency of evidence.. If there is substantial evidence to support the verdict, and the trial count grants a new trial on the grounds of insufficiency of evidence,, when such insufficiency does not exist, in some circumstances, that might constitute abuse of discretion, if the order granting a new trial was granted for this reason only; so that we are very doubtful whether the rule stated in the opinion in this case actually states the correct rule which should govern the trial court in such case.
If the trial court believe the evidence is insufficient to sustain the verdict, and grants the motion for a new trial, it is upon the theory that there is no substantial evidence to support the verdict. Where there is substantial evidence to support the verdict, there is hardly any room for the exercise of the trial court’s discretion, for the weight and sufficiency of the evidence are for the jury, and, if the evidence is substantial, and the jury have found a verdict in accordance with it, it has determined the sufficiency.
Substantial evidence is sufficient evidence, and, in such case, insufficiency does not exist. In this case the evidence is quite sufficient to sustain the verdict.