(dissenting).— I am unable to agree with the-majority opinion in this case. Before entering upon a discussion of the legal principles involved, however, it will be well to state the case of the plaintiff as he made it in his petition and amendment thereto, for the case should be determined on the issues which the parties have themselves made.
The petition and amendments thereto allege: That the defendants were the owners of the property in question, and desirous of selling the same. “ That, with this end in view, *546the defendants entered into a contract with plaintiff whereby plaintiff agreed to use his best efforts and energies to sell the property, and in consideration of such efforts, in the event that he was successful in negotiating the sale of said property as desired, and as commissioned for such sale, the defendants agreed to pay the plaintiff ” a certain amount, which has been stated in the majority opinion. “ That the said agreement so entered into between the defendants and the plaintiff was partly oral and partly in writing.” “ That for the purpose of assisting plaintiff in making the sale of said mining property, and for the purpose of showing to prospective buyers that he had authority to negotiate such sale, and as a part of the aforesaid agreement, there was executed and delivered to the plaintiff by the defendants a certain contract or option, wherein the defendants agreed to sell to the plaintiff all the rights, title and interest of every kind,” etc. “ That the said contract [which was the written option above referred to] was a part of the agreement above set out, and was the only part of the said agreement that was reduced to writing.” The petition then referred to the supplemental agreement which was made on or about the 18th day of April, 1902, and said “ that the supplemental agreement so entered into by and between the plaintiff and defendants . . . was partly oral and partly in writing.” The petition then alleged, further, that in order that the plaintiff might be able to show that he had authority to sell said property the defendants executed and delivered an option contract, etc. The petition also alleges that the portions of the contracts between the plaintiff and the defendants which were oral and not reduced to writing were made and entered into with the defendant Gibbs, who acted for himself and for the company in making the same. It is further alleged that on or about the 18th day of April, 1902, the date of the supplemental written option, the defendant entered into an oral agreement with the plaintiff, wherein he agreed that, in the event the plaintiff should procure, a purchaser *547“ for the property of the said Hocking Coal Company, either by sale of said property directly, or through a sale of all the capital stock of said corporation, . . . then and in that event, the defendants would pay to the plaintiff commission,” etc. I quote from the petition for the purpose of showing that the plaintiff pleaded and relied on a single contract,, partly in writing and partly in parol, and that his pleading does not bring him within the rule announced by the majority, that an independent verbal contract relating to the same subject-matter, but not inconsistent therewith, may be shown.
If it were true, and so alleged, that an independent written option to purchase had been given to Wells, then the position of the majority would be sound, as held by the Wisconsin court in Reimer v. Rice, 88 Wis. 16 (59 N. W. 450), but nothing of that kind is alleged in this • case. On the contrary, it is expressly stated and reiterated that there was but a single contract, and that the so-called options were hut a blind to enable the plaintiff to negotiate a sale of the property. And when it is once conceded’ that the alleged oral agreements and the so-called written options constituted but one contract, and that a contract for a commission for selling the property, it is manifest that the parol part of such contract is inconsistent with the writing, and cannot be proven under the rule which the majority concedes is so well established. The opinion says that neither of the contracts in question “ limits or affects the operation of the other. The written option to purchase may expire, and the oral contract to find a purchaser may continue, until one or both of the parties sees fit to withdraw therefrom.” These statements are evidently based on the thought that there are two independent contracts, one in parol, and the other in writing. But such is not the case before us. If we may rely on the case the plaintiff has himself made and presented, the position of the majority is in my judgment wrong, and without support in the authorities cited or elsewhere.
*548It is a rule universally recognized that a parol collateral agreement inconsistent with the clear meaning of the writing cannot be shown. • An agreement which may be proven by parol evidence must not only be collateral, but it must relate to a subject distinct from that to which the written contract applies; “ that is, it must not be so.closely connected with the principal transaction as to form part and parcel, of it.” Seitz v. Brewers, 141 U. S. 510 (12 Sup. Ct. 46, 35 L. Ed. 87); Naumberg v. Young, 44 N. J. Law, 331 (43 Am. Rep. 380).
As. I understand the opinion, the only other ground on which it justifies an affirmance is that the parties accepted the transfer of the stock as a performance of the contract. This, also, makes a new case for the plaintiff. So far as I am able to discover, he makes no such claim in- argument, and he certainly made none in his pleadings. In his pleadings, as I have already said, he bases his right to- recover solely on the single contract pleaded, and, in his argument, he relies on his right to prove the agreement to sell by á transfer of the stock of the corporation. He does not claim there was a waiver of strict performance and he cannot claim it in argument, because it was not pleaded.
. I think there was error in admitting the parol agreement, and that the case should be 'reversed.