(dissenting).
In dissenting, it seems to me that the main opinion has aborted the clear terms of a contract, reading into it something that is not there.
The release was signed by Knudsen with eyes open. It was a promise to Prudential that as an inducement to obtain funds to pay for the materials furnished, and as a consideration therefor, Knudsen would waive lien claims, past or future. It is difficult to see how Knudsen’s self-serving urgence that there was no consideration for the waiver, can hurdle the parol evidence rule, and at best is a classic study in renegation. Brimwood furnished the form that Knudsen signed. Presumptively the former *423would not have insisted on its being signed if it didn’t mean what it said. The release was a contract between Knudsen and Prudential, and presumptively the latter would not have paid Knudsen anything absent his release of what the document in crystal clear language said: “The undersigned hereby waives, releases and discharges any lien or right to lien the undersigned has or may hereafter acquire against said real property.” (Emphasis ours.)
As to the matter of consideration, Knudsen gave up an assértable lien right in consideration of receiving the funds — and he clearly said that’s what he was doing. This happens frequently, — particularly • 'where funds are badly needed by the materialman before the last materials are to be furnished. Prudential was benefited by solidifying its claim against Brimwood, by possible, elimination of a record title that might be fettered by recorded liens, in the event Prudential’s mortgage proved defective. Assurance is greater and it is much easier to collect money advances made to a failing contractor, if no liens encumber the title. The lender, at least, would be a general creditor in the event of such failure and would share pro rata with others in distributing any available assets of the contractor. He might even get a solid judgment priority if his mortgage proved ineffective for any reason. I am of the opinion that there was more than ample consideration for the waiver,1 and that it ran in both directions. To say otherwise is but ipse dixit.
It seems to me that the main opinion flies in the teeth of Holbrook v. Webster.2 The facts were identical except that in the Hol-brook case the amount listed on the release was $700, while in this case it was $610. In the Holbrook case the decision specifically said there was consideration for the contract, and that the lien claimant wás precluded by his signature, and the clear language of the release, which was invulnerable to modification by parol. The following language, concurred in by all the members of the Court in that case, including those concurring in the main opinion here, seems significant and controlling:
“The * * * Release is supported by a valuable consideration, is unambiguous and is not subject to being varied by parol. There is no contention that (it) * * * was procured by fraud or misrepresentation. * * The only issue is one of law. It does not lie in the mouth of appellant to say that he was mistaken in the legal effect of the release or that he did not intend that it should be given the only legal effect of which it is susceptible. * * *
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“Had the court declined to grant the motion for summary judgment and *424had appellant attempted to vary the terms of the Release by testimony that appellant did not intend the release to mean what its unambiguous language shows its legal effect to be, such testimony would be inadmissible. The release is susceptible of only one meaning and absent fraud cannot be varied except by agreement of the parties.”
I think that clearly there was a slander of title, and that the trial court should be affirmed in this respect and do not share the views of the majority that issues presented here are different and distinguishable from those in the Holbrook case.
McDONOUGH, J., concurs in the views expressed in the dissenting opinion of HENRIOD, C. J.. 12 Am.Jur. 576, sec. 81, Contracts.
. 7 Utah 2d 148, 320 P.2d 661 (1958).