its face is incomplete, parol evidence is admissible for the purpose of supplementing the written contract, but not to contradict or vary its terms. In Shephard vs. Haas, 14 Kan. 443, (2d Ed. 340) in an opinion by Mr. Justice Brewer, it is said: "But the existence of a written contract does not always exclude the possibility of a contemporaneous parol agreement bearing upon the same general subject-matter, yet referring to some point or phrases of it not expressed in the writing. And this written agreement, obscure and uncertain as it is, evidently does not reach to all matters of ordinary consideration in a transaction like the one at bar. Without noticing others, it is enough to refer to the question at whose option the foreclosure was to be had. Upon this the written agreement is silent, and nothing can be implied from the language used concerning it; yet it was a proper matter of agreement, and one ordinarily determined in such an agreement. But whatever were the facts of the case, it is possible that there was some contemporaneous parol agreement, not contradicting or varying (italics our) the written, and yet having some bearing upon the matter in issue." When the writing does not purport to disclose the complete contract, or if when read in the light of attendant facts and circumstances, it is apparent that it contains only a part of the agreement entered into by the parties parol evidence is admissible to show what the rest of the agree ment was, but such parol evidence must not be inconsistent with or repugnant to the intention of the parties as shown by the written instrument, for where a contract rests partly in parol, that part which is in writing is not to be contradicted. West vs. Kelly, 19 Ala. 353, 54 Am. Dec. 192; Whatley vs. Reese, 128 Ala. 500, 29 So. 606; Radigan vs. Johnson, 174 Mass., 68; Chapin vs. Dobson, 78 N. Y. 74, 34 Am. Rep. 512; Thomas vs. Scutt, 127 N. Y. 133. However, the writing is presumed to contain the whole of the contract and will be protected from any inva sion of intrinsic stipulations, if upon inspection and study of the writing itself, read in the light of surrounding circumstances in order to its proper understanding and interpretation, it appears to contain the engagement of the parties, and to define the object and measure the extent of such engagements, and to have been designed by the parties to be the repository and evidence of their final intentions. Gilbert vs. Moline Plow Co., 119 U. S. 491; Seitz vs. Brewers Refrigerating Mach. Co., 141 U. S. 510; Drennen vs. Satterfield, 119 Ala. 84; Eighmie vs. Taylor, 98 N. Y. 288. Over the objection of the plaintiff in error evidence was admitted to show it was not the intention of the parties that the plaintiff in error should remain in possession, but that the defendant in error should have possession and the plaintiff in error should aid him in selling the goods, etc. In this the court erred for such parol evidence was clearly in conflict with the written contract. 2. As to the second assignment of error that "the court erred in each of the paragraphs of the instructions. to the jury," Rule 25 of this court provides that "where a party complains of instructions given or refused, he shall set out in totidem verbis in his brief separately the portions to which he objects or may save exceptions." Said assignment not complying with this rule does not raise any question for determination in this court. 3. The plaintiff contends that there was no evidence reasonably tending to support the theory of a subsequent parol agreement by which plaintiff delivered to defendant the possession of said goods, and for that reason assigns as error said instruction No. 1, which is set out totidem verbis, as required by the rules of this court. In view of the fact that this case will have to be sent back for a new trial we do not pass on this question. The judgment of the lower court is reversed and remanded with instructions to grant a new trial and proceed in accordance with this opinion. All the justices concur. MILLIE P. HERRON, Plaintiff in Error. VS. No. 890. M. RUMLEY COMPANY, Defendant in Error. (Rendered July 11th, 1911.) Error from the District Court of Woodward County. R. H. Loofbourrow, Trial Judge. Affirmed. SYLLABUS. 1. The amending of pleadings vel non, when not changing the cause of action, rests within the sound discretion of the trial court, whose action will not be disturbed on appeal unless such discretion appears to have been abused. 2. The husband is incompetent to testify for or against his wife, except concerning transactions in which he acted as her agent, or when they are joint parties and have a joint interest in the action. 2. (a) The husband in no case, however, can testify concerning any communication made by his wife to him during the marriage, whether called while that relation subsisted or afterward. 3. Evidence excluded will not operate as reversible error unless it affirmatively appears to have been material under the issues framed. 4. The action of the court in excluding evidence will not operate as a reversible error when the record affirmatively shows that such evidence was afterward admitted and received for the consideration of the jury. 5. A party seeking to set aside a written instrument on the ground of fraud assumed the burden of proving the same by clear, positive and convincing evidence. 5. (a) (a) A person signing an instrument is presumed to know its contents. Charles R. Alexander, for Plaintiff in Error. OPINION OF THE COURT BY WILLIAMS,, J. I. The question of the amending of the pleadings was within the sound discretion of the trial court. Its action thereon will not be disturbed on review here unless such discretion appears to have been abused. (Alcorn et al. vs. Dennis, 25 Okla., 135, 105 Pac. 1012.) The court offered to permit the defendant (plaintiff in error) to amend her answer on the condition that she pay, or cause to be paid, the accrued costs. This she failed or declined to do. Section 5677 Comp. Laws 1909, sec. 4015. Stat. Okla. Ter., 1893, provides: "At any time within ten days after the demurrer is filed, the adverse party may amend, of course, on payment of costs since filing the defective pleading. Notice of the filing of an amended pleading shall be forthwith served upon the other party or his attorney, who shall have the same time thereafter to answer or reply thereto, as to an original pleading." Section 5679, Comp. Laws 1909, sec. 4017, Stat. Okla. Ter. 1893, also provides: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleadings or proceedings to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformible thereto by amendment.” Under section 5679, the court was not only authorized to permit this amendment, but also by section 5677 it was empowered to require the payment of accrued costs as a condition to the amending of said pleadings. As to whether under any given state of facts it would be an abuse of discretion to require the accrued costs to be paid as a con dition to being permitted to amend, it is not essential here to determine, for there is no showing, or any attempt to make a showing, that the plaintiff in error was not able to pay, or cause to be paid, such costs. 2. As to the alleged error in that the court did not permit the husband of the plaintiff in error to state what the agent of the defendant in error represented to her at the time the alleged mortgage was executed, under the status of the record no prejudicial error was committed. Section 5842, Comp. Laws 1909, section 4213, Stat. Okla. Ter. 1893, provides: "The following persons shall be incompetent to testify: * * * * * 3. Husband and wife, for or against each other, except concerning transactions in which one acted as the agent of the other, or when they are joint parties, and have a joint interest in the action; but in no case shall either be permitted to testify concerning any communicaticn made by one to the other during the marriage, whether called while that relation subsisted, or afterward. * * The only theory on which it would have been competent for the husband to testify as to such matter in favor of the wife would be that he was acting as her agent. The theory is that the wife, on account of the condition of her health, did not read the instrument, but if the husband was also present as her agent, who it appears from the record could sign his name, it is difficult to comprehend how the alleged fraud could have been practiced against her right, and the jury evidently took the same view. However, the court later permitted the witness to testify as to such matter. Therefore, in no event was prejudicial error committed. 3. As to the custom of the defendant company which was sought to be proved in securing its paper, that does not seem to have been material. Where error in the exclusion of evidence is alleged, the party complaining must point out and show wherein the evidence may be competent |