See, also, Dorsey v. Tisby, 192 Or. 163, 176, 234 P.2d 557; Willamette Prod. Credit Ass'n v. Day, 167 Or. 451, 458, 118 P.2d 1058; Marks v. Twohy Bros. Co., 98 Or. 514, 529, 194 P. 675. Thorne v. Edwards, 147 Or. 443, 454-455, 34 P.2d 640, furnishes a test for determining whether the oral agreement was collateral. We there said:

It also provided for amortization of the loan by monthly payments * * * The refunding could not be accomplished without the consent of the mortgagee. But if he consented — and his consent was entirely optional (Thorne v. Edwards [ 147 Or. 443], 34 P.2d 640 * * *) — he must agree to accept said HOLC bonds in full settlement of his claim and release all his claim, or on request to assign the mortgage or other obligation without recourse to the Corporation. The bonds were guaranteed by the United States, and any loss sustained by the Corporation would be the loss of the United States which would have to be made up by general taxation.

The majority held that the third requirement had not been met. It is worthy of observation, however, that in the dissenting opinion it was pointed out that the scope of the written contract was not intended to cover prior negotiations. This three-fold test was adhered to in South Florida Lumber Mills v. Breuchaud, 5 Cir., 51 F.2d 490; Markoff v. Kreiner, 180 Md. 150, 23 A.2d 19; Taylor v. More, 195 Minn. 448, 263 N.W. 537; Thorne v. Edwards, 147 Or. 443, 34 P.2d 640, but given a somewhat liberal interpretation in Ball v. Grady, 267 N.Y. 470, 196 N.E. 402 and Early v. Street, 192 Tenn. 463, 241 S.W.2d 531. In the case of Roof v. Jerd, supra, exemplifying the liberal rule, the purchaser of two lots was able to show an oral promise by the vendor's agent that, if the purchaser would buy the lots, the vendor would develop the tract by building streets and sidewalks.

This is so not only because, for the purposes of ORS 41.740, according to that testimony, "the terms of [the] agreement [had] been reduced to writing," but also because most, if not all, of the subject matter of the "stipulations" did not contradict the terms of the lease and were admissible as "collateral agreements," even if not reduced to writing. See Thorne v. Edwards, 147 Or. 443, 454-55, 34 P.2d 640 (1934). Whether or not plaintiffs' testimony was true was a question for the jury.

"Berry v. Richfield Oil Corporation, et al., supra, Webster et ux. v. Harris, supra, and Thorne v. Edwards, 147 Or. 443, 34 P.2d 640, are three instances selected at random from our Reports which applied the rule just quoted. Restatement of the Law, Contracts, § 228, says:

The plaintiff's agreement to accept bonds for his debt is purely optional on his part. Thorne v. Edwards, 147 Or. 443, 34 P.2d 640; McAllister v. Drapeau, 14 Cal.2d 102, 92 P.2d 911, 125 ALR 800 (reversing (Cal App) 85 P.2d 523). The debtor and the creditor may make such agreement as they see fit. A second is that the Loan Corporation can not be compelled by either creditor or debtor to act.

The acceptance of bonds by a mortgagee or owner of foreclosed premises is entirely optional. Thorne v. Edwards, 147 Or. 443. It is assumed in the case at bar that the defendant, as a part of the transaction, conveyed the premises in question to the plaintiffs. The term "public policy" is not easy to define.

The refunding could not be accomplished without the consent of the mortgagee. But if he consented — and his consent was entirely optional (Thorne v. Edwards, 147 Or. 443, 34 P.2d 640) — he must agree to accept said HOLC bonds in full settlement of his claim and release all his claim, or on request to assign the mortgage or other obligation without recourse to the Corporation. The bonds were guaranteed by the United States, and any loss sustained by the Corporation would be the loss of the United States which would have to be made up by general taxation.

The bill shows that complainant is without right to specific performance; such remedy is precluded and denied by the terms of the contract. McCaskill Co. v. Dekle, 88 Fla. 285, 102 So. 252; McCormick v. Bodeker, 119 Fla. 20, 160 So. 483; Johnson v. McKinnon, 54 Fla. 221, 45 So. 23, 13 L.R.A., N.S., 874, 127 Am.St.Rep. 135, 14 Ann.Cas. 180; Realty Mortg. Co. v. Moore, 85 So. 155; McCready v. Lindenborn, 172 N.Y. 400, 65 N.E. 208; Wing v. Ansonia Clock Co., 102 N.Y. 531, 7 N.E. 621; Hall v. Blan, 227 Ala. 64, 65, 148 So. 601; Thorne v. Edwards, 147 Or. 443, 34 P.2d 640; Rose v. Garn, 56 Utah 533, 191 P. 645; Cooley v. Call, 61 Utah 203, 211 P. 977; State v. Gilman, 33 W. Va. 146, 10 S.E. 283, 6 L.R.A. 847; Johnson v. Jordan, 2 Metc., Mass., 234, 37 Am.Dec. 85; Cornell v. McAllister, 121 Okl. 285, 249 P. 959; Coral Gables v. Patterson, 231 Ala. 649, 166 So. 40; Id., 233 Ala. 602, 173 So. 4. FOSTER, Justice.

The refunding could not be accomplished without the consent of the mortgagee. But if he consented — and his consent was entirely optional (Thorne v. Edwards, 34 P.2d 640, Oregon) — he must agree to accept said HOLC bonds in full settlement of his claim and release all his claim, or on request to assign the mortgage or other obligation without recourse to the Corporation. The bonds were guaranteed by the United States, and any loss sustained by the Corporation would be the loss of the United States which would have to be made up by general taxation.