specially concurring.
This is a suit for an accounting; therefore, we try it de novo. Under these circumstances, the findings of the trial court are persuasive but not binding upon us. The trial court found that Gilliland individually and corporately did not accept the terms of the contract by signing the contract. Because of Gilliland’s testimony and the actions of Gilliland Corporation subsequent to the date of the agreement, all as set out in the majority opinion, I am not persuaded by the trial court’s findings and would find to the contrary, as did the majority.
I specially concur to state why I concur on the issue of the parol evidence rule.
Our decisions, similar to those of most other jurisdictions, have varied in the application of the parol evidence rule. For examples, see Caldwell v. Wells, 228 Or 389, 365 P2d 505 (1961), as contrasted with Webster v. Harris, 189 Or 671, 222 P2d 644 (1950).
*985I find 3 Corbin, Contracts §§ 581-585 (1960), to be the clearest explanation of what appears to me to be the preferred version of the rule. He states: "The 'parol evidence’ rule does not itself purport to establish the fact of 'integration’; and until that fact is established the 'rule’ does not purport to have any legal operation.” Corbin, supra, at 442. He states this same proposition another way: "The parol evidence rule purports only to exclude evidence in case there is an 'integration’; that the evidence is offered to contradict or vary.” Corbin, supra, at 480.
An integrated contract is one containing the entire agreement between the parties. I understand Corbin to state that if it is established that there is an integrated contract, parol evidence is not admissible to vary its terms. I understand him to further state, however, that parol evidence is admissible on the issue of whether the parties intended the contract to be an integrated agreement.
Corbin further writes:
"Often it is said that the additional term shall not vary or contradict that which has been reduced to writing; it must be additional to and consistent with the contents of the document. This is quite correct, after the court has found as a fact that the document was agreed upon as a definite and accurate statement of a part of the contract that was finally made. A party cannot admit this and at the same time contradict it. But an offer to prove a provision that does contradict the writing must generally also be an offer to prove that the document was not so agreed upon. Surely, this must be listened to and weighed. If it is flimsy and improbable and motivated by a wish that an agreement actually made had been different and more advantageous, the court can disregard it as untrue, and may properly direct a verdict in spite of it. But the mere fact that it is in contradiction of a writing does not in itself prove that it is untrue; the character of the writing, the surrounding circumstances, and the testimony of other witnesses may unite to show the probability of its truth.” Corbin, supra, at 468-470.
This reasoning is consistent with our statement in *986Caldwell v. Wells, supra (228 Or at 395): "Whether the parties intended to integrate their agreement in the writing is a question of fact in each case.” Corbin states similarly: "The question whether the parties have assented to a specific writing as a complete and accurate integration of the terms of their contract is always a question of fact.” Corbin, supra, at 571.
Along these same general lines we stated in Blehm v. Ringering, 260 Or 45, 50, 488 P2d 798 (1971):
"* * * Parties may enter into two or more contemporaneous contracts relating to the same subject matter, and they may reduce to writing only one or more of the same, the oral contracts being regarded as collateral to and distinct from the written contract. In such an instance, the parol evidence rule does not bar proof of the oral agreement. 70 ALR 752, 756-57. In determining the intent between parties to make an integrated contract, the general rule has been adopted that the surrounding circumstances, as well as the written contract, may be considered. 70 ALR 752, 761. This court has now adopted the surrounding circumstances approach, and we no longer look only to the face of the written contract to determine the intent of the parties. 'Whether the parties intended to integrate their agreement in the writing is a question of fact in each case.’ * *
Then, in DeVore v. Weyerhaeuser Co., 265 Or 388, 508 P2d 220, cert den 415 US 913, 94 S Ct 1408, 39 L Ed2d 467 (1973), in dictum, we drew back from this acceptance of Corbin’s statement. After the statement from Caldwell v. Wells, supra (228 Or 389): "Whether the parties intended to integrate their agreement in the writing is a question of fact in each case,” we stated:
"If this were the correct rule, without any further limitations, evidence could always be offered of any prior or contemporaneous oral agreement and in all cases the question whether the parties intended to supersede such an oral agreement by the integration of their entire agreement into the terms of the written contract would be a question of fact which must always be submitted to the trier of facts, whether court or jury. It may be said, *987however, with some justification, that the adoption of such a rule, without any limitations, would emasculate, if not 'repeal,’ the parol evidence rule, which is a rule adopted by statute in Oregon, as in many other states.” 265 Or at 400-401.
Thereafter, however, we quoted with approval from Corbin:
" '* * * [t]he oral admissions of the plaintiff that the agreement included matters not contained in the writing may be proved to show that it was not assented to as a complete integration, however complete it may look on its face. * * *’ ” 265 Or at 403.
We relied upon an oral admission by the plaintiffs’ agent that the parties did not intend the writing to be an integrated agreement and upon this ground and others held the writing was not an integration and plaintiffs were bound by a previous oral agreement.
I prefer Corbin’s complete analysis and would hold that parol evidence is admissible as proof that the agreement was or was not intended to be an integrated contract.
In the present case the trial court made no findings upon the issues of the term of agreement or whether the agreement was an integrated contract. Upon the basis of the evidence, as stated in the majority opinion, I would find that the parties intended the writing to be an integration of their agreement on the term of the agreement. For this reason, evidence that the defendant only intended to contract for the Baker job is immaterial.
O’Connell, J., joins in this specially concurring opinion.