Smith & Thompson were operating a public elevator for the storage of grain at Appleton, Minnesota, for some time prior to the death of Smith, in June, 1894. After his death, Thompson, this defendant, operated the elevator until it and its contents were destroyed by fire, on June 30,1896. At the time of the fire there were stored in the elevator 19,034 bushels of No. 1 wheat, all intermingled in a common mass. At that time plaintiff had in store in the elevator 4,125 bushels of this wheat, for which he held storage receipts. Other persons held storage receipts for other portions of the wheat, amounting to 11,517 bushels; and these receipts were transferred to plaintiff after the wheat was so destroyed, but before the commencement of this action. This action was brought to recover the value of all of said 15,642 bushels of wheat, under the claim that, by the contract of storage, defendant had insured all of this wheat against loss by fire while so stored. On the trial before the court, sitting without a jury, the court found for defendant, and plaintiff appeals from the judgment.
One Sinnott was the agent of Smith & Thompson in managing the business, and continued to be the agent of defendant, Thompson, after the death of Smith. So far as here material, the printed blank form of storage receipt used by Smith & Thompson was as follows:
“La Grange Elevator of Appleton, Minn.
“Smith & Thompson, Proprietors. “-bush. no.-wheat-. price,-cents.
“Received in store-, 189-, account of-or order,bushels no.-wheat.
“Which amount, kind, and grade of grain will be delivered to the holder of this receipt, upon surrender thereof, subject to the following conditions as to storage, etc.: The first 15 days from date here*382of, or fractional part thereof, one-half cent per bushel, but shall not exceed four cents for six months. This charge for storage shall cover loss by fire only; all other damage, by the elements, or by heating, or riot, or by the act of God, or which in any way has been caused by the holder of this receipt, shall be excepted. * * *
“Smith & Thompson, Proprietors.
“JBy T. Sinnott.”
Defendant, Thompson, used these same blank forms when issuing receipts, and the same were signed, after the printed signature, “Smith & Thompson, Proprietors,” as follows: “By T. Sinnott.” All of the receipts here in question, issued for said 15,642 bushels of wheat, were in this form; and plaintiff relies on the words, “This charge for storage shall cover loss by fire only,” as constituting the contract of insurance against fire, by which he claims defendant is liable for the value of the wheat.
1. In our opinion, the clause does constitute such a contract.
2. To avoid the effect of this, the defendant pleaded in his answer that before the fire, and after the delivery of the wheat and the issuing of the storage receipts in the various instances, he entered into a subsequent and independent contract with each of the holders of such receipts, whereby it was agreed that defendant should thereafter store the wheat free of charge for a specified length of time in each case, during which time the fire occurred. In our opinion, the defendant thereby pleaded a good defense. Such contract for insurance arose merely by implication from the language used, and, if no charge was made for storage, this implication would drop out. In other words, there being no charge for insurance, it would, under the peculiar language used, mean that there was to be no insurance.
3. But each of the receipts so issued constitute a written contract, the terms of which cannot be varied by an oral agreement made at or prior to the time the receipt was issued. The application of this rule to this case leads to reversal.
The trial court ordered judgment for defendant, but neither the findings nor evidence will support the judgment which was entered pursuant to that order. The court found that an agreement was made between defendant and each of the persons depositing grain or holding storage receipts that defendant should thereafter store *383the wheat free of charge, as aforesaid. But, as to part of the wheat, the court found that the agreement was made when the wheat was deposited. As to another part, the court failed to find whether the agreement was made before, or at the time of, or after the wheat was deposited and the receipts issued. As to the rest of the wheat, the court found that the oral agreement was made after the wheat was deposited and the receipts issued; but the finding is not sustained by the evidence, which is to the effect that a portion of this part of the wheat was deposited before the oral agreement was made respecting it, and a portion after the same was made. Neither does it appear from the evidence how much was deposited before, and how much after, such oral agreement was made. In fact, with respect to the greater part of the wheat, the evidence is much confused as to whether the oral agreements were made before, at the time of, or after the storage receipts were issued. Much of this evidence is not competent in the absence of a counterclaim in. the answer seeking to have reformed the receipts to which the evidence applies, as the effect of the evidence would be to vary the terms of a written contract by parol, and not to prove a subsequent oral modification of a written contract.
4. The fact that defendant was doing business in the name of Smith & Thompson does not, beyond the explanation of that fact, affect the rule that the written contract contained in the storage receipt cannot be varied or contradicted by a prior or contemporaneous verbal agreement.
5. G. S. 1894, § 7646, provides:
“Whenever any grain shall be deposited in any warehouse, elevator, or other depository, for storage, the bailee thereof shall issue > and deliver to the person so storing the same, a receipt or other written instrument, which shall, in clear terms, state the amount, kind and grade of the grain stored, the terms of storage,” etc.
Appellant contends that by reason of this section the contract contained in the storage receipt cannot be modified by a subsequent verbal contract. We cannot so hold. The statute merely requires that a written receipt, specifying certain facts, shall be delivered when the grain is deposited, and does not prohibit the subsequent modification of such receipt by an independent verbal agreement.
*3846. We are of the opinion that there was sufficient consideration for such a subsequent modification of the contract.
7. Neither can we hold that, by virtue of the provision in the storage receipt that the rate of storage “shall not exceed four cents for six months,” the contract found in such receipt expired at the end of six months after the receipt was issued, even though the receipt was not surrendered, no effort was made to terminate the contract, and the wheat still remained on deposit. Such provision was intended to fix the rate of storage, and not the duration of the bailment.
8. We are also of the opinion that the contract of insurance passed by a transfer of the storage receipts. This disposes of the case.
Judgment reversed, and a new trial granted.