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This is an action to foreclose a mortgage given to secure the payment of a promissory note for ten thousand dollars, payable ten years after date, with interest at the rate of seven per cent per annum, and containing a stipulation to the effect that if the¡ interest is not punctually paid the principal and accrued interest shall become immediately due and payable at the option of the holder.

Nearly four years having elapsed after the execution of the note without the payment of any part of the principal or interest, the plaintiff exercised his option to treat the whole amount as immediately due, and sued to foreclose.

The defendants by way of defense to the action allege that at the time of the execution and delivery of the note and mortgage, and as a part of the same transaction and contract, it was agreed between the plaintiff and the makers of the note and mortgage that they, the mortgagors, should and would pay and discharge all taxes and assessments which might be assessed or levied upon said money or mortgage, any thing in said promissory note or mortgage, or either of them, to the contrary notwithstanding. And it is further alleged that said agreement was knowingly made…

dissenting. — I am compelled to dissent from the views and conclusion of the court declared in this case. If I clearly grasp the grounds upon which the court has based its conclusion, they are in the main that this oral agreement offered to be proven was collateral to the principal contract, and also made without consideration. To my mind neither of these positions has any support whatever. The oral agreement was neither collateral, nor was it without consideration. The consideration for it was the loan of the money, and this agreement to pay the taxes was based upon that consideration as fully and completely as the agreement to pay the interest on the loan, or to repay the loan itself. The agreement was not collateral. It was as much a part of the original contract entered into between these parties as any other covenant contained therein. It was so alleged to be in the answer, and so offered to be proven at the trial. Again, this case in all essentials is an exact photograph of the case of Burbridge v. Lemmert, 99 Cal. 493 , except that the agreement to pay the taxes was there made in writing — a writing distinct from the mortgage. That writing was collateral to the contract and…