delivered the opinion of the court.
The plaintiff testified that he first met the defendant when the contract for an exchange of their properties was signed, and again when the deed was tendered and he ascertained that tract No. 20 was subject to a mortgage, whereupon he said to the defendant, “I thought the land would be all clear,” and was informed by him and Mr. McCurtain that the premises were the same as clear, for the reason that the Eldriedge note was as good as cash. The witness having identified the contract, the deed, and the assignment, they were received in evidence, and as to the latter the plaintiff’s counsel inquired:
“How did it come about, if you know, that this separate agreement was entered into at that time?”
An objection to this question having been made, the court said:
“If the ultimate purpose is to show that at the time you claim he accepted this deed, and this memorandum, that there was a separate oral agreement he would pay this mortgage, then I sustain the objection. ’ ’
*543To such ruling an exception was saved. The plaintiff, having further testified that the promissory note had never been paid to him, nor the mortgage on tract No. 20 discharged, was asked by his counsel:
“What, if anything, was said by Mr. Tillman on this 7th day of May, 1912, when this conversation took place as to whether or not he would pay the encumbrance of this property?”
An objection to this, inquiry was sustained, and an exception allowed. The plaintiff’s counsel, referring to the written assignment of the note, asked the witness :
“How did it come about that this independent collateral contract was made and executed and delivered to you by Mr. Tillman on the 7th day of May, 1912, marked plaintiff’s ‘Exhibit 3’?”
An objection to this question was sustained, and an exception granted. The plaintiff’s counsel thereupon stated to the court that he expected to establish by the testimony sought to be elicited that the defendant orally promised to discharge the mortgage as to tract No. 20, and that only a part of the agreement had been reduced to writing, and that he was also prepared to show that subsequent to the execution of the assignment the defendant promised to pay off such encumbrance. Eeferring to the deed executed by the defendant, the witness was further directed:
“State whether or not, if you know, does this consideration of $10 in plaintiff’s Exhibit 2 state the true consideration. ’ ’
An objection to this order having been sustained, an exception was allowed.
1. It is maintained that in excluding the testimony thus undertaken to be introduced errors were com*544mitted. It is argued by plaintiff’s counsel that, where land is conveyed subject to a mortgage the payment of which is not stated in the deed to have been assumed by the grantee, testimony is admissible to establish the fact that when the title to the premises was thus transferred the grantor orally promised to pay the grantee the amount of the encumbrance. The legal principle thus asserted is well recognized. About as succinct a statement thereof as can be made is found in the case of Brader v. Brader, 110 Wis. 423, 431 (85 N. W. 681, 684), where Mr. Justice Dodge, in discussing this subject, remarks: '
“We have in two very late cases reiterated the well-established rule that neither a simple deed' of conveyance nor a promissory note purports to express the whole contract between the parties. * * The deed but, purports to convey property in execution, partially or wholly, of some agreement; and the promissory note merely serves as convenient evidence of an agreement to pay money. Usually such instruments grow out of agreements having other elements than the mere conveyance or than the mere future payment of money, and therefore no presumption arises that the parties have attempted to embody their whole contract in either instrument. ’ ’
“Parol evidence,” says Mr. Justice Osborne in McDill v. Gunn, 43 Ind. 315, 319, “may be given to show the real consideration of a deed, and that the purchaser took the conveyance subject to encumbrances and agreed to discharge them in addition to the consideration stated in the deed.”
Notwithstanding the existence of the rule referred to, it is believed the testimony so excluded was immaterial, for the reply admits the assignment of the note, so that upon the payment thereof the encumbrance upon the land conveyed to the plaintiff would be discharged, which assignment it is alleged was accepted *545by tbe plaintiff, who stipulated to be bound by tbe agreement entered into by Tillman with Shefler.
2. The pleadings thus admit a stipulation on the part of the defendant to discharge the lien of the mortgage upon tract No. 20, and the written assignment of the promissory note evidences the manner in which he undertook to accomplish this result. This instrument does not appear ambiguous, and, the circumstances under which it was made having been detailed, the writing, as between the parties, must be construed as containing all the terms in respect thereto: Section 713, L. O. L.; Edgar v. Golden, 36 Or. 451 (48 Pac. 1118, 60 Pac. 2); Tallmadge v. Hooper, 37 Or. 511 (61 Pac. 349, 1127); Sutherlin v. Bloomer, 50 Or. 407 (93 Pac. 135). No error was committed in excluding the testimony so offered.
It is insisted that an error was committed in granting the judgment of nonsuit. It is admitted that the lien of the mortgage as to tract No. 20 has not been discharged, that no part of the Eldriedge note has been used for that purpose, and that no payment on account thereof has been made to the plaintiff, nor has there been any written reassignment of the negotiable instrument made by the plaintiff to the defendant. The testimony seems to create a doubt even as to who held the note when this cause was tried. For these reasons, no error was committed in granting the nonsuit.
There is, however, connected with the entire transaction an inference of unfair dealing whereby an advantage of the plaintiff seems to have been taken, and while a court cannot assume the guardianship of responsible parties, it is believed that substantial justice will be promoted by modifying the judgment, so that it shall be without prejudice as to the plaintiff, permitting him, if he so desire, to try the question of *546fraud, under a complaint predicated on that ground, with respect to the alleged representations of the defendant as to Eldriedge’s solvency, and to compel a satisfaction of the mortgage or a payment of $900 and interest thereon. This modification, however, will not entitle the plaintiff to his costs or disbursements in this court. Modified.