(concurring).

I am in agreement that the parol evidence was admissible. I think also that it was admissible wholly apart from whether the words “and other valuable consideration” were, or were not, inserted in the writing.

The most profitable way to approach the problem before us is to take that part of Mr. Wigmore’s § 2430 which appears on page 98 of Vol. IX and apply it to the situation shown in the record here. As Mr. Wigmore says: “The answer depends wholly upon the intent of the parties.” That intent must be sought “in the conduct and language of the parties and surrounding circumstances. The document alone will not suffice. What it was intended to cover cannot be known till we know what there was to cover.”

The following circumstances are significant here:

1. This was not a case where the parties walked into a lawyer’s office, told him their problem and asked him to put their arrangements in writing. The written instrument here was drawn by the loan company and presented to the mortgagor on a “take it or leave it” basis. The latter had no opportunity to suggest any of its terms.

*896 2. The writing is completely unilateral in that it contains statements of what mortgagor does and agrees to do but says nothing whatever about what is the inducement or consideration which he is to get or as to why he is executing it. In fact, it is written in the form of a letter signed by the mortgagor and addressed to the loan company. Any reference to any promise or undertaking on the part of the loan company is purely illusory. Thus it says: “In consideration of your accepting said livestock and property for the purposes hereinafter stated,”, etc. That is like saying “In consideration of your accepting the money and doing with it as you please I promise to pay you $500.” The “purposes hereinafter stated” are exclusively the purposes of the loan company. Those are to have and receive the money.

3. It would stretch one’s credulity to believe that it was the understanding of these parties that this unilateral letter was the whole arrangement between them.

The trial judge on the basis of credible testimony which the appellant did not even try to contradict, found that there was something more to this arrangement and his finding accords in general with what seems to me to be the natural and probable understanding of the parties. Galbraith was in trouble because he had sold the cattle. He was called on the carpet. He testified: “We talked about the shortage on the cattle and what we were going to do about it. We discussed several different propositions of how to handle the situation and there was a matter come up about what was going to be paid. They told me that I would have to deed my ranch and my machinery to them, which they held no mortgage on at all, to settle for these cattle that I had sold and had not remitted on. * * * ”

It seems to me that what the trial judge was doing is covered by the following language in § 2430 of Wigmore above referred to. “There is a preliminary question for the judge to decide as to the intent of the parties, and upon this he hears evidence on both sides; his decision here, pro or con, concerns merely this question preliminary to the ruling of law. If he decides that the transaction was covered by the writing, he does not decide that the excluded negotiations did not take place, but merely that if they did take place they are nevertheless legally immaterial. If he decides that the transaction was not intended to be covered by the writing, he does not decide that the negotiations did take place, but merely that if they did, they are legally effective, and he then leaves to the jury the determination of the fact whether they did take place.” Notice particularly the last sentence quoted. It seems to me that in receiving the evidence and making findings on it, he made the decision there mentioned. On the record as made the trial judge had the right to do just that.