¶1 I concur in the result, but I do not agree with what is said in the main opinion as to the writing of August 22, 1913, being a receipt merely, with the result that evidence was permissible to show that the Wolff note was taken by the defendant as security instead of in payment as specified in the writing. The writing was more than a receipt. It was intended by the parties as the written expression of their understanding. Its terms must, therefore, be taken as final as to what their understanding was. The question of whether the Wolff note was taken as security or in payment is one as to what was understood between the parties, and inasmuch *425 as the written expression of this understanding says it was taken in payment, that ends the matter.
¶2 This conclusion, however, does not change the result. The Wolff noté was taken in payment either conditionally or absolutely. The presumption is it was taken in conditional payment (G riffith v. Grogan, 12 Cal. 317), and the subsequent conduct of the parties leaves no doubt as to this being the fact. The final and crucial question in the case is as to whether the note was paid as a result of the subsequent transaction whereby Lemm endeavored to buy into the partnership with the plaintiff and Wolff. It appears that Lemm was to pay not to the plaintiff, but into the capital of the firm, one thousand dollars, of which five hundred dollars was to be paid by the payment of the Wolff note to the firm. On this understanding Lemm redelivered the note to the plaintiff. But the note was never paid and the partnership came to nothing. There was, therefore, a complete failure of the consideration for which Lemm gave up the note, and he has not, in fact, received anything of value on account of the five hundred dollars which constituted the part of the purchase price represented by the note. This being the situation, the plaintiff must pay this five hundred dollars before he is entitled to a deed under his contract of purchase.
¶3 Shaw, J., concurred.