David

(after stating the facts as above). We will first consider the sufficiency of the counterclaim, as a decision of that question will have a material bearing upon the sufficiency of the affirmative defense. Was oral testimony competent to prove the agreement on the part of the plaintiff to advance the sum of $140,000 to enable the defendant to take up and pay off the claims and liens against the mill property?

“There may be instances in which a contract is partly in writing and partly oral, and the two together constitute the contract; so there may be a question of fact as to whether the written agreement is or is not *805 the entire agreement. Illustrations of such eases are afforded by the cases of Railway Co. v. Jurey, 111 U. S. 584 , 4 Sup. Ct. 566, 28 L. Ed. 527 , and Bank v. Cooper, 137 U. S. 473 , 11 Sup. Ct. 160, 34 L. Ed. 759 , where the question was whether a bill of lading’ constituted the entire contract. But here both parties have signed the contract of March 10, 1899. It purports to he the agreement between the parties, and speaks conclusively tho conclusion to which the parties to it have arrived. The oral promise related to a subject upon which the written contract…

(dissenting). If the answer involved no more than the alleged oral agreement for loan and payment out of rents to accumulate, I would concur. Bor defendant carefully pleads the whole as an entire and nonseverable contract, of which the oral part was voluntarily omitted from the written memorandum, apparently complete on its face; and so the latter is conclusively presumed to contain all terms of the contract, is the contract, and is not to be affected by parol.

In addition to eases cited in the majority opinion, see Sund v. Co., 86 Or. 289 , 168 P. 303. In respect to the notes, there is a clear distinction and difference between a note delivered but not to become an obligation until the happening of an event, a condition precedent, as in La Grande v. Blum, 26 Or. 49 , 37 P. 49 , and a note delivered as a present obligation but subject to avoidance by the happening, of an event, a condition subsequent, as in Colvin v. Goff, 82 Or. 314 , 161 P. 568 .

Parol evidence is admissible in the first, but not in the last. Wigmore, Evidence, § 2435. The instant notes are of the last category.

But there is more to the answer. By way of set-off, though labeled counterclaim, it alleges that…