dissenting.
I would reverse the judgment of District Court.
The majority find the intentions of the parties that each lien waiver signed by plaintiff released only the amounts he received at the time of signing. This finding is based upon the testimony of plaintiff (subcontractor) and Roger West (an employee of the general contractor).
In my view the judgment cannot stand for at least three reasons: (l)the testimony of plaintiff and Roger West is not admissible in evidence; (2) the clear and unambiguous language of the lien waiver cannot be altered or modified by an oral agreement to the contrary; and (3)plaintiff subcontractor is estopped from asserting his claim here by the reliance of the owner (Big Sky) on the general lien waiver.
*391A contract is to be construed to carry out the intentions of the parties at the time of contracting, if such intentions are ascertainable. Section 13-702, R.C.M.1947; Tribble v. Reely (1976), 171 Mont. 201, 557 P.2d 813. If the contract is ambiguous on its face as to the intentions of the contracting parties, parol evidence can be used to ascertain the parties’ intentions. McNussen v. Graybeal (1965), 146 Mont. 173, 405 P.2d 447; Lehrkind v. McDonnell (1915), 51 Mont. 343, 153 P. 1012. But where the language of a contract is clear and explicit that language governs its interpretation. Section 13-704, R.C.M.1947. As previously stated by this Court:
“This Court when called upon to interpret the terms of contracts has held that where the terms of the contract are clear and ambiguous the Court will not allow parol evidence. (Citations omitted.)” Kielmann v. Morgan (1970), 156 Mont. 230, 235, 478 P.2d 275, 277.
When a contract is reduced to writing, the intentions of the parties are to be determined by reference to the language employed by them and where the language used is clear, certain and unambiguous, oral testimony may not be resorted to. Section 13-705, R.C.M.1947; Merritt v. Merritt (1974), 165 Mont. 172, 526 P.2d 1375; Safeco Ins. Co. v. Munroe (1974), 165 Mont. 185, 527 P.2d 64.
While parol evidence is admissible to determine the object of the parties in executing and receiving an instrument, this rule was subject to limitations and clarifications. McCaull-Dinsmore Co. v. Stevens (1921), 59 Mont. 206, 194 P.213.
“The rule, however, is subject to the qualification that the purpose thus disclosed must not be inconsistent with the express terms of the instrument, for if the parties have clearly stated their purpose in the instrument itself no extrinsic evidence will be received to vary or contradict it * * *” 32A C.J.S. Evidence § 960, pp. 418-419.
In this case the parties clearly expressed their purpose in the Receipt and Waiver of Mechanics’ Lien Rights. Their clear and ex*392plicit purpose as expressed .by the language of this instrument was to waive any and all pre-existing lien rights up to the date the instrument was signed. The testimony of plaintiff Roger West contradicted this express purpose and should have been excluded. The parties are bound to the terms of the written lien waiver and cannot contradict or vary its terms by parol evidence.
In finding of fact No. VII, the District Court held the lien waivers were solely limited to the amount received at that time and that waivers did not foreclose plaintiff from an action to foreclose a mechanics’ lien for all amounts in excess of those received. The District Court in this finding went on to say “ * * * that this manner of proceeding was requested by the defendant Big Sky of Montana, Inc.” In my view the record is barren of any evidence to support this finding. On the contrary, the record supports a finding that owner (Big Sky) was a stranger to this agreement between the subcontractor and the general contractor.
The oral agreement between subcontractor and general contractor is unenforceable. The written lien waivers cannot be modified by any oral agreement between plaintiff and Inland Construction Company, the general contractor. A contract in writing can only be modified or altered by another contract in writing or by an executed oral agreement. Section 13-907, R.C.M.1947; Ikovich v. Silver Bow Motor Co. (1945), 117 Mont. 268, 157 P.2d 785. Here, there is neither a written agreement modifying the lien waivers nor an executed oral agreement.
In my view, plaintiff subcontractor is estopped from asserting his claim in this suit by the reliance of the owner (Big Sky) on the general lien waiver. The general rule has been stated in this language:
“A subcontractor * * * is estopped to assert a lien where the owner has settled with the contractor or made payments to the contractor * * *, in reliance on the subcontractor’s * * * receipt for the amount due him, his statement that he has been paid by the contractor, his representation that he will not look to the owner for payment of work performed or materials furnished, * * *” 57 C.J.S. Mechanics’ Liens § 230, p. 804.
*393Here, Big Sky made its payments to the general contractor because the general contractor presented lien waivers signed by the subcontractor to it. Big Sky did not know the language of these waivers had been contradicted by an oral agreement between the subcontractor and the general contractor. The subcontractor cannot, at this late date, assert that he signed a written general waiver of his lien rights, but his intent was not to waive those rights.
In effect, the majority is obligating the owner of the condominium project, Big Sky, to pay the excess amounts claimed by the subcontractor under a course of dealings between the general contractor and plaintiff subcontractor to exact monies from the owner Big Sky. I do not believe this Court should condone such a scheme.
For the foregoing reasons, I would reverse the judgment of the District Court and enter judgment for the defendant.