(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 the entire contract was orally made, rests in parol, and intentionally only part was incorporated in the written memorandum (pleaded in hæc verba) and to avoid the statute of frauds. It also pleads all the oral agreement. But it alleges definitely that defendant duly performed all obligatory upon him, and that plaintiff breached the written memorandum as well as the oral agreement, to defendant’s damage in amount $930,000 in respect to the first and in amount $500,000 in respect to the last. Now, since the written memorandum is the only contract pleaded and provable, the only contract sanctioned by law and cognizable in court, all allegations of the oral agreement otherwise are immaterial in pleading as in proof, are mere surplusage which, not stricken as they ought to have been, are to be ignored. They affect not at all the legal sufficiency of the answer as a set-off by reason of the written and only contract, but impair only its form; they are neither advantage nor prejudice to either party, and neither party will be heard in respect to them. Despite them, defendant can recover upon the written contract. Proof of it alone will maintain his set-off; for the immaterial oral agreement need not be, as it cannot be, proven. And in this would be nothing obnoxious to the principles of allegata et probata, variance, or res judicata. In any ease the immaterial need not be proven, and it suffices to prove contracts in legal identity, whether or not proven in fact identity. See Board v. Keene, etc., Bank, 108 F. 515, 47 C. C. A. 464; James v. Goodenough, 7 Nev. 324; Patterson v. Co., 30 Cal. 360; Wallace v. Baisley, 22 Or. 573, 30 P. 432; cases cited, 13 Cor. Jur. 751; 22 Ency. P. P. 533, 537.
The rule is the same even in criminal law. That a litigant improperly mingles immaterial allegations of an oral agreement with a good cause of action upon a written contract, or claims more than his due, is no reason in principle to deny recovery and of what is proven due. A complaint of that nature would be invulnerable to general demurrer, and good as a complaint is good as a set-off.
It is true that defendant contends throughout that the entire contract rests in parol, and that he is entitled to prove it by parol despite the written memorandum. But it is also true that a contention palpably erroneous by mere inspection of the pleading will not justify a cpurt in refusing whatever relief is due upon like inspection. That justly due will not be denied as a penalty for claiming too much. A righteous claim is not to be rejected merely because asserted with erroneous reasons. If the pleading of a litigant discloses that he is entitled to X because 2 plus 2 make 4, he is not to be denied recovery for that his counsel strenuously argues that 2 plus 2 make 5.
In so far as the majority opinion states that the “advance” was to enable defendant to lease the mill property free and clear of *807incumbrance, and that there is “admitted inability of the defendant to lease the mill property,” I am unable to find anything in the written contract, the lease (also pleaded in hase verba), or in the answer to warrant it.
The answer alleges that defendant had purchased the mill, was entitled to possession of it, was indebted for part of the price payable in future installments, and that he had exhibited title as the written contract stipulates and to plaintiff’s satisfaction. It further alleges that the “advance” was to be used to clear incumbrances, and that in consequence of plaintiff’s breach of written contract and ora.1 agreement, defendant some 33 months later was constrained to sell the mill to his damage. And the lease provides that if and when the lessee exercises its right to purchase the mill, defendant will make good and unincumbered title. But in all this is naught impeaching his lawful right and power to lease the'mill, or admitting any inability at any material time.
Without more, it is my opinion that in this state of the case, defendant was entitled to trial of his set-off, and that judgment on the pleadings was error.