The defendant exchanged a tract of land in Kansas for a farm in Iowa. Therein W. W. Cornwell acted as her agent. She gave him the noté of $175, payable one year after date, in part at least for services so rendered. As the note was transferred after maturity, the defenses pleaded were quite as aváilable as though Cornwell had sued. The defendant alleged, in an amendment to the answer:
“Cornwell obtained said note from defendant, and as a consideration therefor, the said Cornwell agreed to put in writing his said agreement that he would sell said land for the defendant within a year for $80 per acre, or rent said land on or before the 1st of March, 1913, to a responsible tenant for five years, at the annual rental of $3.50 per acre, and that said note should become due and payable only when he had performed said agreements.”
If such an agreement there was, it was not reduced to writing. The original answer averred that the consideration *655had failed and that defendant was compelled to .rent at a: lower rate and to sell the land at a sacrifice. The issue of fraud and evidence bearing thereon were withdrawn from the jury. ■
1. evidence : parol evidence: contradicting date of maturisoryfnortemis~ The burden of proof was on the defendant, and to sustain the averment of the answer, she testified that she was reluctant about making the deal; that Cornwell urged her to exchange, saying that, if she did so, he would either rent the farm for her ‘ ‘ for five years at $3.50 per acre or I will sell it for you m one year if you will give me- the exclusive right to do this;” that after some negotiations the deal was made, she relying on said promise; that thereafter she said to him, in substance, that, as she was getting no money, she could not pay any commission then, and he responded, "That don’t make any difference about commission;” he could wait for same "until he sold the farm.” A day or two later, she gave the note payable one year after date, there being no conversation at the time, save as to the amount and his agreement to reduce his promise to writing. She testified further, that she did not own the Iowa land at the time of the trial. This is all the evidence favorable to plaintiff bearing on the issues.
1. In the fifth instruction, the jury was directed to ascertain whether, as an inducement of exchange, Cornwell undertook to sell the farm at $80 an acre within one year, or rent same for five years at a rental of $3.50 an acre, and, further, whether at such a time he agreed that said note should beeome due and payable only when he had done so, exacting an affirmative finding as to both to warrant a verdict for defendant. There was no competent evidence of any agreement as to when the note became due, save that found in the note. The answer admitted the making and delivery of the note. What Cornwell said related only to the time of payment of the commission. When the note was executed, a day or two later, the time of payment was inserted therein, ‘ ‘ 12 months after date. ’ ’ This would be after the lapse of the year in which Cornwell *656is said to have stated that he would sell the farm. The parties having definitely agreed in writing as to time of payment, the terms of the note might not be varied by the evidence of the previous conversation, in which a different time of payment was proposed. In other words, an oral understanding, had a day or two before the execution of a written agreement on the same subject-matter, is merged therein, and may not be proved over an objection that it tends to vary the terms of a written instrument.
2- «onto jury™0" obey.°f 'iury tc 2. In the sixth instruction, the jury was told that, in order to find for defendant, it must appear by a “preponderance of the evidence that the defendant had given the said Cornwell one full year from and after the 22d day June> &.• D- 1912, in which to make sale said land, or had given him until March 1, 1913, to rent the same for $3.50 per acre. And if defendant has failed to satisfy you by a preponderance of the evidence that she retained the land for at least one year, giving said Cornwell the right to sell or rent the said land under the terms and conditions contained in said alleged contract, then plaintiff is entitled to recover as prayed in his petition. ’ ’
The record is silent as to when defendant parted with the Iowa farm, and, had this instruction been followed by the jury, the verdict must have been for the plaintiff.
3- note!fconsidure of cónsideration. 3. The evidence tended to show that Cornwell, in order to induce the defendant to exchange the Kansas land for an Iowa farm, promised that, if the exchange were made, he would sell the Iowa farm for $80 an acre within one year or rent the same at $3.50 an acre for five years, and that he would reduce such agreement to writing; and that she executed the note in consideration of such agreement, as well as his services in making the exchange, and this issue would rightly have been submitted to the jury had there been any evidence that Corn-well was given the exclusive sale of the land for one year in *657addition to the showing of failure to sell or rent the same. Because there was not sufficient evidence to support the verdict, and because of the errors in the instructions, the judgment is — Reversed.
Deemer, Gaynor and Salinger, JJ., concur.