delivered the opinion of the court.
This action -was brought hy plaintiffs to' recover from defendants possession of a portion of the Ripple quartz lode mining claim, situate in Cascade county. The portion of the claim in controversy is described as the “south or southerly 300 feet of the Ripple quartz lode mining claim;” and it is alleged that the defendants, on or about October 10, 1901, the plaintiffs being then the owners and entitled to the possession thereof, wrongfully and unlawfully entered upon the premises, and engaged in mining and-removing valuable ores therefrom, to the irreparable damage of the plaintiffs. Equitable relief is also sought by way of injunction to perpetually restrain further trespasses by the defendants. Upon the filing of the complaint the district court made an order requiring the defendants to show cause why they should not also be restrained from mining and removing ores pending the final determination of the
The action was commenced .on November 16, 1901. It appears from the evidence submitted that on February 20, 1901,. the plaintiffs, being the owners of an undivided one-half inter-v est in the claim, also held a lease of the other undivided one-half interest from one Briggs, the owner of it, with an option to purchase it on or before October 10, 1901, the date at which the term of their lease expired. The plaintiffs leased to the defendants and two others the portion of the claim in controversy under a written contract for a term beginning on February '20, 1901, and ending on October 10, thus making the two leases expire on the same date. The defendants! and their co-lessees desired a lease for a year, but the plaintiffs refused to-extend the term beyond October 10 for the reason that it was-then uncertain whether the Briggs interest would be paid for, and they did not care to bind themselves for that interest. It being admitted that the Briggs interest had been purchased by plaintiffs under their option, the defendants undertook to show that their lease was good to the end of the year by virtue of an oral understanding with the plaintiffs had on and subsequent to February 20. John Joki, one of the defendants’ co-lessees, testified that plaintiff J. C. E. Barker, who represented himself and the other plaintiffs, told him at the time the lease was signed that if plaintiffs took up the Briggs interest under their option, and the lessees made no- money out of their lease, they could have an extension, in order that they might make some money. B, O. Kempfer, who was present at the time, stated that, after reading over .the lease, Barker said to Jokir “You understand this lease calls- for October 10. Well, you are to have a written agreement holding the lease for one year. October 10 is the day our bond expires on Briggs’ half interest in this claim, and your lease is to run for one year in ease we
Objection w*as made to the introduction of the testimony of Joki and other witnesses on the ground that it was an attempt, to show by oral evidence an extension of the written lease, and it ivas therefore incompetent, as in violation of the provisions, of Section 2281 of the Civil Code. The court admitted the evidence, reserving a ruling upon the objection until the close of the hearing. When the hearing was concluded the evidence was excluded from the record upon the ground assigned in the objection. The defendants excepted. They now contend that the evidence was; admissible either (1) as. tending to establish
1. Upon the first branch of this contention the plaintiffs insist that the casé falls clearly within the rule declared by Section 2186 of the Civil Code, which is as follows: “The execution of a contract in writing, whether the law requires it to be written or not, supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” They also cite and rely upon Section 3132 of the Code of Civil Procedure, which provides that: “When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be between the parties and their representatives, or successors in interest, no evidence of the terms of the agreement other than the contents of the writing, except in the following cases: (1) Where a mistake or imperfection of the writing is put in issue by the pleadings. (2) Where the validity of the agreement is the fact in dispute.' * * *” This section also provides that evidence shall not he excluded which tends to explain an extrinsic ambiguity in the writing, or to establish illegality or fraud.
The statement made by Stelle in the conversation between himself and Joki was clearly incompetent as hearsay. Equally as objectionable, it would seem, was the statement by both the defendants that they would not have signed the lease but for the understanding that it would' he good for a, y’ear in case the Briggs interest should he purchased. Even if everything that was said and done at the time the lease was executed by the defendants were admissible, as defendants contend, for the purpose of showing what the contract actually was, the unexpressed motive or mental reservation entertained by the defendants could not -aid the court in arriving at a correct conclusion, nor could the defendants'be permitted to testify h> it in order to modify or add 'to-the express words of their contract. What
But passing these features of the evidence, and taking it all together, does tbe case fall within tbe rule declared by these statutory provisions ? We think it does. Tbe averment of tbe answer is that tbe defendants were in possession under a lease authorizing tbem to mine upon tbe premises until February 20, 1902. There is no allegation that there was any mistake in the terms of tbe contract. Tbe writing itself in evidence limits tbe term unequivocally to October 10, 1901. To admit the evidence and give it tbe force contended for by tbe defendants would be to permit tbem to insert in tbe written instrument by oral evidence an additional agreement based upon a condition upon the happening of wbicb the term would be extended for a period of four months. The statutory provisions cited are but declaratory of tbe common-law rule (1 Green!. JEv. Sec. 275), and recognize all tbe exceptions for wbicb it provides. Among these is tbe case in wbicb evidence may be received of tbe existence of an independent oral agreement not inconsistent with tbe stipulations of tbe written contract, and in respect of wbicb tbe writing does not speak, but not to contradict, vary, add to, or qualify tbe absolute terms of tbe written contract. In such a case tbe independent oral agreement must bave been upon some collateral matter, and must bave operated as an inducement to tbe complaining party to enter into tbe agreement, whereas in tbe absence of it be would not bave done so. To deny tbe admission'of evidence in such a case, if relevant to tbe issues' made by tbe pleadings, would be to allow, one of tbe parties to induce another to enter into tbe engagement under false representations, and to' aid him to enforce it against bis adversary notwithstanding tbe fraud prae-
2. The action of the court in excluding the evidence upon the objection as made was also correct Section 2281 of the Civil Code provides, “A contract in writing may be altered by a contract in writing, or by an executed oral agreement, and not otherwise.” The principle embodied in this provision applies to all kinds of contracts in writing, whether they are required by law to be in writing or not. The purpose of the section is the same as1 that of the rule contained in the other provisions which we have been considering. It is, however, a distinct departure from the common-law rule, which permitted parties, at their pleasure, to alter by oral agreement, whether executed or executory, any contract which was not required to be evidenced by a writing. The only exception- recognized is the case in which the subsequent oral agreement has been executed by one or both of the parties. In such case the agreement, as altered or modified, is deemed to have been substituted
Tbe excluded evidence does, not, at most, tend; to establish more than a mere executory agreement to so change, tbe terms of tbe written agreement as to substitute another date for tbe one written therein, and to extend tbe life of it for four months. No consideration passed from the defendants to tbe plaintiffs, by virtue of wbicb tbe promise became a binding obligation. The alleged subsesquent agreement Was. therefore within tbe prohibition of the statute, and consequently void. The evidence offered to show it ivas incompetent, and was properly excluded.
Let tbe order be affirmed.
Affirmed.