Page:Federal Reporter, 1st Series, Volume 10.djvu/867

 HUDBARi) V. BELLEW. 855 �It is evident that, wliatever elso this modification was, it was not bontemplated that Bellew should pay for these forties Or auv 6f them as a condition precedent to his right to receive a deed of the mill forty.' There is nothing in the evidence and nothing in the con tract to show that sueh was the understanding of the parties. On the coii' trary, il; is evident that the land-owners were content to take a second lien on the mill promises to secure their righta. Under any less liberal provision very likely no one could have been found to advance moneye to build the mill. And this, I have no doubt, was in the con- templation of the parties. Bat this modification seems to me no more than a partial designation or selection of the mill forty, confin- ing the selection to one of the three named forties, and that, under the written tiontraet, this same forty might have been properly se- leeted by Bellew, and that the additional stipulation by paroi that Belle* should pay five dollars per acre, and take a deed of the other two forties, in addition to paying for the pino timber, was entirel^ voluntary, and has nothing to do with the question of Hubbard's rights. This modification, whatever it was, was probably made be- fore Hubbard had begun to make his advances, and before he had made the agreement with Bellew; but there is no evidence to show that he knew anything about it when made, or that the relation of the parties had been changed from what he found them under the written coutract, when he engaged to advance the means to build the mill. �I am unab]e to see that Hubbard's rights are affected by the mod- ification. This provision in the contraot allowing Bellew to mort- gage the mill site to some outside or third party seems to me in the nature of an open letter of credit to the person who should be induced to advance that sum of money to build the mill, and thus ma,terially add to the value of the defendants' contract, and all of the lands included therein. And when it had been shown to Hubbard, and he had engaged to advance the money and become the third or outside party named in the contract, no paroi or other modification of the written contract unknown to him could affect his equities, whether made before or after that time. There is evidence in the case ta show that Smith, the agent of the land-owners, knew that Hubbard was the man who was furnishing the money to build the mill, and that after the deed was given by Bellew and wife, in February, 1 876, to Hubbard to secure him for such advances, Smith recognized the Talidity of Hubbard's claim, and told him that he would see that his ��� �