delivered the opinion of the court.
1. The decision of this controversy depends largely upon the conversation and agreement of the parties at the time the defendant signed the notes and mortgage on September 18, 1911. The Irrigation Company takes the position that the transaction was preliminary, and that the parties agreed that the defendant would execute new notes and another mortgage in lieu of the ones delivered on September 18th if it should be ascertained, after making a final survey, that the irrigable acreage amounted to less than 55 acres. The defendant asserts that she understood that the business was completed when she signed and delivered the papers on September 18th; that she executed the instruments upon representations made by the Irrigation Company, and with the understanding that 55 acres of her land would be irrigated from the ditches as they were mapped upon the blue-prints; and that she was warranted in refusing to sign the new notes and mortgage. She also argues that the notes and mortgage sued upon are ineffective because the irrigation system was not substantially completed as originally planned, and for the further reason that both the plaintiff and defendant abandoned all agreements appertaining to the land owned by the latter. A. E. Wade conducted the negotiations for the Irrigation Company. The defendant had purchased the land in 1910 through Wade, who had acted as the agent of the owner; and, when discussing the irrigation pro*244ject in September, 1911, the defendant knew that he was familiar with the premises because she had examined the land in company with him in 1910, when she purchased the property. An action for the condemnation of the railroad right of way had been terminated only a few days before September 18, 1911, and for that reason the number of acres was fresh in the mind of defendant. Retta Payne testified that she knew that a small piece in the northwest corner could not be irrigated, and that Wade told her that it amounted to about half an acre. The defendant in not uncertain terms repeatedly states that it was represented to her that 55 acres of the land would be watered. She is corroborated by the testimony of her son, who says that Wade told him:
“There would be something in the neighborhood of an acre waste, and that the balance of it would be irrigated.”
The attorney who advised with’Mrs. Payne and as a notary public took the acknowledgment of the mortgage confirms the version given by defendant because it appears from his testimony that:
“During some of those conversations Mr. Wade — I don’t remember the details, just exactly how he stated it, but he said something to the effect that there was to be 55 acres of her land irrigated at that time. We had, of course, discussed the acreage and the situation with reference to the railroad, and something was said with reference to the northwest corner, a part of an acre, or something of that kind, that would not be irrigated, and it was estimated that 55 acres would cover approximately the amount of land which would be irrigated. ’ ’
Although Wade testified that he did not represent that the system which it was proposed to construct *245“would cover all her land” — nor does the defendant claim that he so represented to her — nevertheless, he could not positively say that he had said anything to her ‘ ‘ about afterward changing this mortgage and her notes in any way”; and the witness further stated: “I believe that I explained that matter to her; I couldn’t say absolutely. ” It is not asserted by anyone that the representations made by plaintiff involved the element of fraud. The.inquiry is directed only to what was said, making it necessary to discover whether the plaintiff stated that the system would water 55 acres. The position taken by the defendant is supported by the clear preponderance of the evidence, especially when it is remembered that she knew that she owned 56.12 acres of land and the mortgage only called for 55 acres, as this circumstance of itself indicates that there was some reason for naming less than the entire acreage owned by the mortgagor.
2. The defendant further contends that the litigating parties considered that their contract had been abandoned. The evidence does not definitely disclose the date when the Irrigation Company presented the new notes and mortgage for the signature of defendant, although it was at some time after November 8, 1911, when the second agreement was made with the contractor; and it occurred before the contractor had begun work, because actual construction commenced “in April, 1st of April — it might have been earlier than that.” The defendant testified that she first learned of the second agreement with the contractor when the representative of the Irrigation Company presented the proposed new notes and mortgage, and “stated to me that they wouldn’t be able to irrigate so many acres as they had said, 55 acres, and that he *246wanted me to fill ont these, make new arrangements with him.”
She wished to inspect the second agreement with the contractor, and a copy was sent to her. After examining the writing and discovering that the system wonld accommodate a smaller area of her land than at first planned, she determined not to sign the notes and mortgage. Interviews with representatives of the Irrigation Company ended by the defendant saying that she wonld not execute the new instruments, and the plaintiff was made aware of her intention before construction work commenced. Under these circumstances the defendant had a right to assume that the Irrigation Company had abandoned the agreement with her, because she did not again hear from the plaintiff until the expiration of two years, although in the meantime the irrigation system had been constructed, was being operated, and an assessment against the stock had been levied in October, 1913.
3. It is the contention of the Irrigation Company that the change in the agreement with the contractor did not affect the lands owned by defendant, and that for all practical purposes the Payne land is served by ditches which were constructed as originally planned. One ditch is located west of the railroad right of way, and cuts across the northwest corner of the land so as to leave a triangular piece of about 12 acres to the west of this ditch. There is testimony in behalf of the plaintiff to the effect that one ditch comes to the south line of the premises at a point east of the railroad. It is also claimed that ditch No. 5 is constructed almost to the north line of the Payne land, notwithstanding the fact that witnesses for the defendant, one of them being a civil engineer who went upon the land for the express purpose of ascertaining and mapping the exact *247conditions, were positive in their declarations that they conld not see any such ditch. The most that plaintiff can claim for these three ditches is that the one west of the railroad will water 37% acres, a portion of which is east of the railroad; that the ditch coming from the south will irrigate 2 acres, and the one coming from the north will serve 5 acres. It is conceded that the ditch running across the northwest corner is on a line the elevation of which is above all the land lying east of that ditch; but it also appears that it would be very expensive, and therefore not practical, to carry the water over or under the right of way for use on the east side of the railroad. The plan exhibited to the defendant when she signed the notes and mortgage indicated that ditch No. 5 would enter the north side of the Payne land and be extended almost to the south line, and that from this ditch the defendant could irrigate the land east of the right of way without being compelled to adopt an expensive system of syphons for conducting the water from the ditch running across the northwest corner. The specifications remove all doubts that may be raised from a mere inspection of the blue-prints, and demonstrate that according to the original contract ditch No. 5 was to be extended through the land of. defendant and almost to the south line, for it is specified that this ditch shall be “one mile” in length; and it appears that if the ditch terminated at the north line it would be only about five-eighths of a mile long. The right to water 55 acres of her land wjth a system which was defined and made certain and was to be furnished by plaintiff constituted the consideration for the notes and mortgage signed by defendant. The system constructed is materially different from the one promised, and that material difference affects the lands of *248defendant to a marked' degree; and, furthermore, the plant as now installed, evén hy the employment of expensive and impracticable methods, will serve only four-fifths of the acreage agreed upon when the notes and mortgage were signed on September 18, 1911: Foeller v. Heintz, 137 Wis. 169 (118 N. W. 543, 24 L. R. A. (N. S.) 327).
The Irrigation Company had ample notice, before commencing actual construction, that the defendant refused to be bound by the second agreement made with the contractor, and it was not warranted in proceeding with the second contract in despite of the objection made by defendant, so as to make her liable for something she not only did not agree to, but which she expressly repudiated in advance. The plaintiff refused to proceed with the first agreement, while the defendant declined to enter into a new one. The contract actually made was terminated by abandonment, and no new agreement was adopted as a substitute: Davis v. Bronson, 2 N. D. 300 (50 N. W. 836, 33 Am. St. Rep. 783, 16 L. R. A. 655). The notes and mortgage signed by the defendant and mentioned in the complaint are canceled.
The decree of the trial court is reversed.
Reversed.