I am unable to concur with the -views expressed by the majority of the court and will briefly state my reasons for dissenting:
The objection made to the introduction of the evidence of*230fered was that usually made in this class of cases, namely, that the same tended to vary, change, and contradict the terms of written instruments. In view of the fact that the learned circuit court sustained the objection, I conclude that he regarded the evidence offered as inadmissable, under the general rule, and as in contravention of section 3545, Comp. Laws 1887, quoted in the majority opinion. This section substantially embodies the common law upon the subject. The appellant, while admitting the general rule as laid down by our Code and recognized by the common law, contends that this case comes within the exceptions, quite well established, that parol evidence is admissable to show an independent contract made as an inducement to the written contract (Downey v. Hatter (Tex. Civ. App.) 48 S. W. 32; Thomas v. Loose, 114 Pa. 35, 6 Atl. 326), or within the exception that where there has been an oral contract, and a part, only, has been reduced to writing, the appellant may show the whole contract for the purpose of establishing the entire oral contract (Barker v. Bradley, 42 N. Y. 316, 1 Am. Rep. 521; Vanbrunt v. Day. 81 N. Y. 251; Juilliard v. Chaffee. 92 N. Y. 529). In the case of Vanbrunt v. Day, supra, decided by the Court of Appeals of the state of New York, an oral agreement made by the party to keep certain buildings insured until the mortgage which had been assigned to the plaintiff became due was admitted in evidence, not-“ withstanding that the mortgage itself was assigned in writing, with a guarantee of payment on the part of assignor; and the court held that the rule excluding parol evidence as varying or modifying written instruments did not apply, as the agreement set up was an independent collateral engagement upon a new consideration, which, if established, would not qualify or *231change the guaranty, but simply give a right of action therefor as a counter claim. In the opinion the court says: “The defendant’s guaranty was in writing, and was contained in the same instrument by which he assigned the mortgage. It was an absolute undertaking to pay the mortgage in the event of failure of the payment by the mortgagors. * * * * But the answer of the defendant, although inartifically drawn, in substance alleges that, at the time of the execution of the assignment and guaranty, the plaintiff, in consideration of being permitted to retain $300 out of the purchase money of the mortgage, and of the assignment to him by the defendant of a policy of insurance upon the premises, agreed to keep the premises insured until the mortgage should become due, which she neglected to do; that the building on the premises was destroyed by fire; and that by reason of such neglect the security of the defendant-was lost. The court on the trial rejected proof of this agreement, and of the consideration therefor, offered by the defendant. The rejection is sought to be sustained on the ground that the written agreement is conclusively presumed to contain the whole engagement of the parties, and that the offer was an attempt to in-graft by parol a new term upon the written contract. But we are of the opinion that the rule referred to does not apply to the case. The writing was executed by the defendant alone. It was given in execution of his contract to assign the mortgage and guaranty its payment. The agreement was. an independent collateral engagement, made by the plaintiff upon a new consideration, to keep the premises insured for the protection of the defendant. If established, it would not qualify or change the defendant’s guaranty. Its breach would give a
*232right of action, available to the defendant as a counterclaim to tbe extent of the damages sustained, in reduction or extinguishment of his liability. The cases sustain the defendant’s claim that the proof of the oral agreement would not violate the rule that, when the agreement of the parties has been reduced to writing, that alone is to determine their respective obligations. Batterman v. Pierce, 3 Hill, 171; Hope v. Balen, 58 N. Y., 380; Lewis v. Seabury, 74 N. Y. 409 [30 Am. Rep. 311].” In Juilliard v. Chaffee, supra, the Court of Appeals of New York treated these various defenses exhaustively, and in the course of the opinion the court says: “A party sued by his promisee is always permitted to show a want of failure of consideration for the promise relied upon, and so he may prove by parol that the instrument itself was delivered even to the payee to take effect only on the happening of some future event (Seymour v. Cowing, 1 Keyes, 532; Bentin v. Martin, 52 N. Y. 570; Eastman v. Shaw, 65 N. Y. 522), or that its design and object were different from what its language, if alone considered, would indicate (Denton v. Peters, L. R. 5 Q. B. 474; Blossom v. Griffin, 13 N. Y. 569 [67 Am. Dec. 75]; Hutchins v. Hebbard, 34 N. Y. 24: Seymour v. Cowing, supra; Barker v. Bradley, 42 N. Y. 316, 1 Am. Rep. 521; Grierson v. Mason, 60 N. Y. 394; De Lavallette v. Wendt, 75 N. Y. 579, 31 Am. Rep. 494.) He may also show that the instrument relied upon was executed in part performance only of an entire oral agreement (Chapin v. Dobson, 78 N. Y. 74, 43 Am. Rep 512), or that the obligations of the instrument have been discharged by the execution of a parol agreement collateral thereto (Crosman v. Fuller, 17 Pick. 171), or he may set up any agreement in regard to the note which makes its enforcement inequitable.” See, also, *233Machine Co. v. Faulkner, 7 S. D. 369, 64 N. W. 163, 58 Am. St. Rep. 839; Reynolds v. Robinson, 110 N. Y. 654, 18 N. E. 127; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Ware v. Allen, 128 U. S. 590, 9 Sup Ct. 174, 32 L. Ed. 563.
It will be observed from the offer that Almskog & Anderson, in consideration for the transfer by the appellant of all of the copartnership property to his partner, and signing the notes as surety, agreed to accept a chattel mortgage on all of the partnership property, and to sell and dispose of such property when the notes became due, and to exhaust their legal remedies against the same before calling upon this appellant for the balance that might be due on the notes, and also that Almskog & Anderson violated this agreement, in that they neglected to foreclose the said mortgage, or to take any proceedings against the property. The appellant’s transfer of his interest in the property, and his execution of the notes as surety, constituted a good and valid consideration for the collateral agreement of Almskog & Anderson. The only part of the agreement reduced to writing was the execution of the notes by L. J. Matheny, and the signing of the same by this appellant as surety. There was, as we have seen, a valid collateral agreement, founded on ample consideration, on the part of Almskog & Anderson, that they would proceed to enforce the payment of the notes against the copartnership property, and that they would not call upon this appellant, as surety, for the payment of the said notes, until they had exhausted their remedies against the property mortgaged. This latter contract in no way varies, changes, or modifies the contract embodied in the notes.
*234The appellant concedes that he is liable for the full amount due upon the notes under his contract of suretyship, and he insists that the evidence offered was not intended to in any manner vary, change, or contradict the terms of his contract as evidenced by the notes. But he does claim, however, that under his independent collateral contract with the plaintiff, made upon good consideration, by which he was induced to convey to his copartner all of his interest in the partnership property, and to sign the notes as surety, he is entitled to recover by way of counterclaim any damages he has sustained by reason of the breach of the collateral contract on the part o-f the said firm, and to have such damages deducted from the amount due from him on his contract as surety. I am of the opinion that the position of the defendant is clearly correct, and fully sustained by the authorities, if he was induced by the plaintiff to part with all of his interest in the property upon the agreement to apply the property to the payment of the notes when they became due, and he has violated the agreement. _ The appellant is clearly entitled' to recover the damages he has sustained in this aetibn by reason of the breach of the contract on the part of the plaintiff, or, in other words, to counterclaim the same against the amount due from him to the plaintiff on the notes in controversy.
In my opinion, the judgment of the court below and order denying a new trial should be reversed, and a new trial granted.