I dissent.
This case has been a peculiarly difficult one for the court to resolve with any satisfaction either to itself or the parties. The condition of the record is lamentable in several respects. I dislike to add a dissent to the discussion in the majority opinion but because I think that opinion reaches certain erroneous conclusions of law and of fact and because such errors, *283with the implications of the opinion, may have a grave import to the Institute and to Dr. Clark, I deem it proper to show why I think a different result should be reached.
After extended study of the entire record I am of the view that the evidence does not support the finding that there was a total lack of consideration from the Institute for its benefits under the contract. On any tenable view of the evidence, in my opinion, the contract between Simmons and the Institute necessarily represents a settlement of their conflicting claims in the Impact Research project; the settlement of mutually conflicting claims constitutes legal consideration for the benefits thereby reciprocally given and received. Furthermore, it is my view that defendants are correct in their contention that Dr. Clark’s asserted fraudulent promises cannot be shown to invalidate the agreement because “where the promise relied upon to establish the fraud is at variance with the contractual features of the writing, the same may not be proven either as an element of inducement or otherwise.”
Impact Research at the Institute encompassed something more than Mr. Simmons, his inventions and his employment. The research in this field was well under way before Mr. Simmons was called into it. It was not a part of the Institute’s regular educational curriculum; it was a commercially sponsored venture which “was to be divided into two phases, one the development of equipment [including the impact dynamometer], the method of procedure by which we could determine force time relations. The second phase was to be by applying that procedure, equipment and so forth, in the actual testing of a large number of metals and alloys to determine their response to rapid loading.”
The development of Impact Research is described in the undisputed testimony of Dr. Clark. “That project had a gradual evolution, which started back, I presume, about in . . . 1934, when I became interested in the general subject. A little later on . . . Doctor Datwyler . . . became interested in this project of the dynamics of materials, and we set about to make some experiments at quite high velocities by using explosives and so on. Such work was principally paid for out of my own pocket, and a small amount out of the institute funds. We obtained some preliminary data for which also we acknowledge with gratitude the efforts of Mr. Simmons in the participation with us in our personal activities in that regard. . . . None of us were compensated. His assistance was *284primarily in giving us some suggestions for this, that and the other thing [including the development of an explosive bomb device in the summer of 1935], and procuring from electrical engineering certain equipment that we wanted. That more or less congealed our ideas in respect to impact, and led us to the belief that we could get most from our experiment if we could determine the force acting during the impact over very short periods of time. We [Clark and Datwyler] proposed the details of our ideas to the Chairman of the Executive Council, who thought well of our fundamental plan for really going into the matter of Impact testing, whereupon a meeting was held with industrial firms to determine whether or not they would be willing to give support for such a project, and shortly thereafter—that was the fall of 1936, I believe,—some industrial firms saw fit to sponsor this project.” In about October, 1936, Impact Research was organized under commercial sponsorship. Dr. Clark was its director. “Doctor Datwyler was the first paid research assistant on the project, and he proceeded to investigate the possibilities of various methods of determining force time relations . . . Doctor Datwyler examined into many different possible methods . . . Those tests in general were quite rank failures . . . and during that time Mr. Simmons was in consultation with us purely as a matter of discussion on those things. ’ ’
The device which Dr. Datwyler was attempting to develop was an impact dynamometer; i. e., an instrument to translate “instantaneous forces into instantaneous electric impulses so that they will be recorded by means of an oscillograph. ’ ’ He was engaged in this particular phase of the work even before the completion in approximately October, 1936, of the more or less formal organization of Impact Research as a commercially sponsored project. The dynamometer itself was not a new device, but he was unsuccessful in finding a strain sensitive element which would make it workable in measuring impacts. After various experiments (frankly described in Dr. Clark’s above quoted testimony as “rank failures”) Clark and Datwyler, in the latter part of August, 1936, requested plaintiff’s aid on this problem. Early in September, 1936, plaintiff conceived and communicated to Datwyler a proposed solution, the use of a thin wire bonded to the dynamometer bar with a material called glyptal. Pursuant to plaintiff’s suggestions, and with plaintiff participating in the work of construction, Datwyler constructed a dynamometer. This instrument was improved in various respects pursuant *285to Datwyler’s and plaintiff’s further ideas as to how to overcome various defects, and within a month after plaintiff’s original suggestion a successful instrument had been constructed. Plaintiff during this time was not employed by the Institute and he received no pay for his work in inventing the, wire strain gauge and assisting in its application to the dynamometer, other than the consideration provided for in the contract evidenced by Exhibits A and B, hereinafter set forth in footnote 1.
On December 11, 1936, two months after the dynamometer had been completed, plaintiff for the first time was employed for pay in Impact Research. Nearly three years later, in the fall of 1939, a representative of Baldwin visited plaintiff and Clark at the Impact Research laboratory and informed them that Baldwin was interested in obtaining patent protection for, and exploiting, the wire strain gauge. Prior to this time, so far as the evidence shows, neither party had expressly stated any opinion as to, or claim of, ownership of the dynamometer using the wire strain gauge. The Institute, having successfully developed the dynamometer employing the gauge, which may be said to have constituted the first phase of the Impact Research project, had simply been carrying on the second phase of that project, which, as previously indicated, involved the use of the dynamometer. The gauge, according to Simmons’ own language, “was voluntarily given to Impact. ’ ’ But after Baldwin suggested its interest in patenting and exploiting the impact-measuring device, there followed the discussions between plaintiff and Dr. Clark, and the negotiations with representatives of Baldwin, which culminated in the execution of Exhibits A1 and B2.
*286The discussions between plaintiff and Clark chiefly concerned three matters: Plaintiff’s future employment at the Institute, the use of the Baldwin royalties in Impact Research, and the respective interests of plaintiff and the Institute in the invention. The evidence as to what was said and done by plaintiff and Clark as to these three matters shows, I think beyond question, that there was, as a matter of law, consideration bargained for and exchanged between plaintiff and the Institute by the mutual settlement of their disputed claims of interest in the invention. I have noted that plaintiff urges that “All that the evidence established was that Clark, himself, had the belief that the Institute had an equity or interest in the in*287vention . . . Now, we submit, Clark’s own belief, and the opinions of others on the Institute campus, certainly were not tantamount to the assertion of any claim by the Institute, through its properly authorized officials, that it had any interest in or to ownership of the invention or patent.” But I think that the record, on any reasonable view, does not sustain plaintiff’s position on this point.
The writings define the rights of the three parties in “inventions involving an electrical strain gauge wire” and “inventions relating to the measurements and indications of various conditions including impact testing”; they refer to these inventions as having been made by Simmons. There is no doubt that the wire strain gauge element of the dynamometer was conceived by Simmons alone, at a time when he was not employed by or a student at the Institute, although he was then on campus and had been and expected again to be (and was again) both an employe and a graduate student. It is apparent from the writings’ description of the “inventions” which are the subject of agreement that the devices which Baldwin agreed to patent, to exploit, etc., include not only the wire strain gauge but also that gauge set up in useful fashion with the dynamometer, oscillograph, etc. Of course, neither Simmons nor the Institute makes any claim to having “invented” such devices as the oscillograph and the dynamometer. But both Simmons and the Institute claimed rights in the applications of those devices, with the wire strain gauge, which were developed by Simmons and Datwyler. The following testimony shows that there was a bona fide dispute between Simmons and Clark as to the respective interests of Simmons and the Institute (such words as “equity,” “owned,” etc., are not, it is clear from the whole of the testimony, used therein in any technical sense):
Plaintiff testified that during the discussions which led up to the execution of the writings “Doctor Clark took the position that due to moral considerations, the Institute had a claim on . . . this patent . . . Doctor Clark made claims that the Institute had some sort of moral claim, and at no time did he make any claim that the Institute had a legal right to the inventions ... [I]n substance [Doctor Clark] said that inasmuch as my work at the Institute and the fact I had been paid by the Institute for working, I had a moral obligation to assign the patent to the Institute, on which occasion I objected to that point of view, and I said that inasmuch as the *288actual invention of the gauge was made on my own time and was voluntarily given to Impact [italics added], that I felt that the patent was entirely mine, and also, as I had always understood it, the Institute was not engaged in the commercial or patent activity, and that they had never held any claims against anybody’s inventions, that is, made by people at the Institute.” It is thus apparent from plaintiff’s own testimony that he had “voluntarily given to Impact” the invention in question and that, after becoming more aware of its possible value, he was seeking to get it back. He was asserting a claim •to that which he had previously freely donated. Simmons was also asked the following question: “ [Clark] claimed that the Institute was entitled to some equity in your invention, and you disputed that. That is the size of it at the present time ? ” He answered, ‘ ‘ That is right, ’ ’ but further explained that the word “equity” was not used in his discussions with Clark. Simmons testified, further, that “Doctor Clark had the belief that the Institute owned everything that was developed there, and that opinion was held by other people on the campus ... I don’t think that Doctor Clark actually made the statement that the Institute owned everything; “owned,”—there is a matter of words which I had no intent of them being strictly applied legally. Doctor Clark expressed at all times that the Institute had some sort of moral claim or right arising from patents developed at the Institute, in which case he stated that if he had a patent, why, he would give it to the Institute on moral grounds. He never at any time said that the Institute had a legal ground, nor did he ever discuss legal grounds; in fact, Doctor Clark told me on one occasion that he had no knowledge of legal matters and he wasn’t bringing this matter of a legal matter of the Institute having an ownership, but purely as a matter of moral consideration . . . Prior to this interest by Baldwin . . . there had never been any discussions [between plaintiff and Clark] on patent matters or Institute rights or anything else . . . There was never any discussions about assigning the entire interest [in the inventions] to the Institute, or assigning any interest to the Institute . . . the discussions were thqt Doctor Clark told me that the Institute had a moral interest in the inventions ... In one of the discussions along this line he stated that it would be nice to have these royalties paid to the Institute funds so that they could be used for Impact, and I agreed with that point . . . but inasmuch as it looked at that time . . . like it would be a fairly *289good commercial product, and I could see the proposition arising whereby there might actually be more funds than Impact could use at a given period, and I wanted to reserve the right to draw part of those funds ... I suggested 40 per cent, and Doctor Clark agreed . . . There was no other discussion of 60 or 30 or 20 [per cent] or whatever it might be ... I never had any discussions about assigning everything to Cal. Tech. Q. Have you ever had any discussion of assigning any particular amount other than 40 per cent? . . . A. No. In other words, when it came to a discussion, this percentage, it was set and fixed . . . Never had any discussion nor saw any writings . . . regarding an entire assignment or a partial assignment of the patent to California Institute of Technology. It was never discussed. . . . Nothing was said about the Institute’s claim or 100 per cent [as opposed to 10 per cent or 60 per cent] ; in other words, we had already months before agreed among ourselves that all the money would go to Impact.” In his deposition plaintiff was asked, [Doctor Clark] took the position . . . that the Institute was entitled to the sole patent right, is that it, did he go that far? A. Yes, that was his position ... he, among all out there, was the strongest of that opinion, I believe, and these conversations from time to time over a period involved arguments why I should assign this, and what benefits I would derive from being at the Institute.”
Counsel for the Institute stated, “We admit that Mr. Simmons was the owner of the patents or patent on the device subject to our rights under these two agreements(Italics added.)
Dr. Clark testified that after Baldwin expressed its desire to exploit the inventions “the matter of the Institute’s interest in this whole matter was set forth by myself, and was discussed from that time on between Simmons and me . . . I pointed out what, in my belief, was the Institute’s interest, not necessarily the Institute’s position . . . The substance of what I said, insofar as I can recollect, is that this device had been devised as a result of our requirements, devised at the Institute in conjunction with the activities of Doctor Datwyler, and that it was my firm belief that the Institute had definite interests in such development, and that it was recognized that Simmons had conceived the idea. Simmons took issue with me on the point that the Institute had any *290interest or right in the matter, and that led to continual discussions . . . until the culmination of the final draft, or agreement, which was signed . . . [Simmons stated that] it was his invention, that the Institute had no right or interest, therefore, in the invention . . . Q. . . .you did tell Mr. Simmons . . . during the course of those conversations which led up to . . . Exhibit A . . . that the school had an interest in this invention because he had been paid for the time during which he had made the invention ? A. Partially so; in addition, for doing it at the Institute with the Institute’s facilities. Q. And you sincerely believe that the Institute did have an interest or equity of some kind by reason of those facts? A. Yes, I do . . . [M]y recollection is that the point being that this matter of paying all of the royalties to the Institute and my inability to agree that they would be devoted to Impact Research gave rise to Mr. Simmons’ desire to withdraw forty per cent of those royalties for his own use.”
The trial court, its findings indicate, disbelieved Dr. Clark’s statement as to his "inability to agree that they [royalties] would be devoted to Impact Research” and believed plaintiff’s statement that "we . . . agreed among ourselves that all the money would go to Impact.” Whether Clark or plaintiff is believed as to this aspect of the controversy, the above quoted evidence, upon any reasonable view, shows indisputably that plaintiff and Dr. Clark were in disagreement as to the respective interests of plaintiff and the Institute in the inventions; that plaintiff had originally "voluntarily given to Impact” the invention in question but that he wished to reclaim it, or some interest in it, for his private account; that both plaintiff and Dr. Clark were sincere in their claims; that each had grounds for his position; that discussions as to the claims began contemporaneously with and continued during the negotiations with Baldwin which resulted in the execution of Exhibits A and B. It is beyond reason to say that, although Exhibits A and B dispose in detail of the respective interests of plaintiff and the Institute, those instruments were executed without plaintiff’s and Clark’s having considered, bargained as to, and mutually settled those very conflicting claims of which the agreement disposes.
I am of the opinion, also, that the evidence indisputably shows that the parties intended Exhibits A and B, executed only after much discussion and negotiation, to be the final written memorials of their understandings. Section 1625 of the Civil Code provides, "The execution of a contract in writ*291ing . . . supersedes all the negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument. ’ ’ The asserted fraudulent promises of Clark, although they did not become part of the contract, directly concerned “its matter”; they did not concern independent or collateral subjects. The asserted promise of permanent employment concerned a subject—employment of Simmons—which was expressly referred to in Exhibit A. The asserted promise that the royalties would be devoted solely to Impact Research conflicts with the provision, found in both Exhibit A and Exhibit B, that royalties shall be paid to the Institute ‘or committees or other agencies or bodies which the California Institute of Technology may designate.” I cannot agree with the strained point of view of the majority that, although the writings permit payment to anyone whom the Institute may designate, they are not inconsistent with Dr. Clark’s asserted promise because the writings contain no reference to use of the funds.
The following discussion in Lindeman v. Corvell (1922), 59 Cal.App. 788, 791 [212 P. 47], is pertinent: “While generally there are exceptions to all rules, the nonobservance of this particular one [the aspect of the parol evidence rule which forbids a showing by extrinsic evidence that a written memorial does not correctly represent the understanding of the parties] in certain cases has caused legal chaos, for the different construction given to it at times has resulted in great confusion and conflict in the authorities, and it would be an idle task to review in detail the various departures. There is no question that particular evidence is admissible to vary a writing when fraud is alleged. In discussing this subject, however, Wigmore, in his work on Evidence, states that the term ‘fraud’ must be understood in its legitimate narrow sense, and that failure knowingly to perform an extrinsic agreement not embodied in the writing cannot in strictness be legally included in the term ‘fraud.’ (4 Wigmore on Evidence, sec. 2439.) The rule that parol evidence is admissible where there is fraud on the part of the payee at the inception of the instrument is recognized, and the doctrine of estoppel has been applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. This doctrine, however, has been held to have no place for application when the statements relate to rights depending upon contracts yet to *292be made, to which the person complaining is a party, as under such circumstances he has it in his power to guard in advance against any and all consequences of a subsequent change of conduct by the person with whom he is dealing, and to admit evidence of extrinsic agreements would be to open the door to all evils that the parol evidence rule was designed to prevent.”
Since the evidence shows, as a matter of law, that there was consideration for the benefits received by the Institute, and since plaintiff should not have been allowed to vary the terms of the writing by showing assertedly fraudulent promises inconsistent therewith, the judgment is without support and should be reversed and the cause remanded for a new trial.
Spence, J., concurred.
Appellants’ petition for a rehearing was denied October 13, 1949. Schauer, J., and Spence, J., voted for a rehearing. Peters, J. pro tern., acting in place of Shenk, J.
Exhibit A was executed by plaintiff and signed by Dr. Clark as "Witness” on February 21, 1940. It reads in material part as follows: "In consideration of my employment by the California Institute of Technology I agree that as to my inventions ... I will not grant any licenses to make, use or sell apparatus or methods embodying any of said inventions unless such licenses are approved by the . . . Institute . . . The royalty on said inventions shall be paid to the . . . Institute . . ., unless at my option I shall request . . . that up to and including forty per cent (40%) of the total royalty paid by any licensee shall be paid to me ... I agree not to grant any license or make any assignment of said inventions or patent rights thereto without the express consent of the . . . Institute.”
Exhibit B is dated March 13, 1940, and reads in material part as follows: "Agreement . . . between . . . 1 Simmons’ and ‘Baldwin.’ This agreement is subject to the approval of the . . . ‘Institute.’
"Whereas, Simmons has made certain inventions . . . Baldwin is *286desirous of obtaining an exclusive license to make or have made for use and/or sale apparatus embodying said inventions.
"Now, Therefore, in consideration of One Dollar ($1.00) and other good and valuable consideration, receipt of which is hereby acknowledged, it is agreed as follows:
"1. Simmons hereby grants to Baldwin an exclusive license . . . subject, however, to the following reservations: . . . [The Institute, Simmons, and Dr. Clark are each] licensed to make and use for his own use apparatus embodying said inventions . . . The sponsors of Impact Research [commercial firms which paid for the research project wherein the inventions were made] . . . are licensed to make and use for their own research and testing only, apparatus embodying said inventions . . . Gottfried Datwyler [who worked with Dr. Clark and plaintiff in Impact Research] may be granted a non-exclusive license for the country of Switzerland . . .
"2. Baldwin agrees at its own expense and without recourse whatsoever to Simmons or to the Institute to . . . prosecute an application . . . for United States Letters Patent on said inventions and to pay all fees in connection therewith. Baldwin shall have full control of the prosecution of such applications. Baldwin agrees not to permit any patentable item contained in the said application ... to be lost by abandonment . . .
"3. Baldwin agrees to prosecute or settle any interference or infringement matter . . . without recourse to Simmons or the Institute . . .
"4. Baldwin agrees to pay a royalty of five per cent ... to the Institute, unless Simmons at his option shall request . . . that any portion up to and including forty per cent (40%) of said royalty shall be paid to him by Baldwin . . .
"Edward E. Simmons, Jr.
"The Baldwin Locomotive Works
"By -
Vice-President
"The granting of the foregoing license is approved by the California Institute of Technology in accordance with an agreement between Edward E. Simmons, Jr., and the California Institute of Technology dated February 21, 1940.
"California Institute of Technology
"By: A. C. Balch
Pres.
[There seems to be no evidence that Baldwin, through its officers, signed Exhibit B; this has not been mentioned by the parties to this action.] ’ ’