Haworth v. Hubbard , 220 Ind. 611 ( 1942 )

DISSENTING OPINION. I heartily agree with that part of the majority opinion wherein it is held that ordinarily the words "any time" import time without end. I cannot agree with the conclusion that as a matter of law, as distinguished from one of fact, the words "any time" as used in the contract before us mean in perpetuity unless limited by the life of the corporation, the preferred stock of which was the subject of the transaction. In the light of the modern decisions it is hardly proper to say that the words used in a contract will be given their generally accepted definition unless to do so would lead to absurdity, repugnancy, or inconsistency. The more recent cases hold that the language will be given its usual and generally accepted meaning unless it has, in respect to the subject-matter, acquired a peculiar sense or unless the context shows that it must be otherwise understood to effectuate the intention of the parties. The Evansville, c.,Railro'd Co. v. Meeds (1858), 11 Ind. 273. "The usual definition of a single word is not a conclusive test of the meaning to be attributed to it in the connection in which it is found; the sense in which the parties employed the word must be ascertained from an examination of the entire instrument, read in the light of the circumstances surrounding its execution." See 12 Am. Jur., Contracts, § 247, p. 784, and numerous cases there cited including Krause v. Board,etc. (1904), 162 Ind. 278, 70 N.E. 264, 65 L.R.A. 111, 102 Am. St. Rep. 203, 1 Ann. Cas. 460.

While there does not appear to be any legal impediment to parties assuming obligations calling for perpetual performance, the cases that sustain such agreements relate to negative promises such as to forebear suit or to refrain from carrying on a business or a calling. The courts are prone to hold against the theory that a contract confers a perpetuity of right or imposes a perpetuity of obligation. 1 Williston's Treatise on the Law of Contracts (Revised Edition 1936), § 38, p. 101. Printing Co. v.Graphite Compendius Co. (1910), 150 Mo. App. 383, 130 S.W. 836.

Looking to the circumstances surrounding the execution of the contract before us, we find that the life of the Forbes-Hubbard Lumber Company was limited to 50 years from its organization in 1920. Acts 1921, ch. 35, § 4, cl. h, § 4825, Burns' 1926. The preferred stock was a 10-year obligation, subject to reissue but redeemable after 2 years at the option of the company. The appellee Hubbard was president of the company which was engaged in a private business subject to all of the vicissitudes of a competitive, commercial enterprise. The company was subject to radical changes in management and, of course, might become insolvent or bankrupt. The parties were charged with knowledge that the law of this State imposes a limit of 10 years for bringing an action on a written contract for the payment of money. § 2-602, Burns' 1933, § 61, Baldwin's 1934. They were also bound to know that the contract created a chose in action, that it might involve their estates. Hedgepeth v. Union Trust Co.,Admr. (1924), 194 Ind. 616, 144 N.E. 142. They resided in the community where the corporation was engaged in business and knew each other well. It seems to me inconceivable that the parties had in mind that they were entering into an unending obligation. If they did not, the contract is indefinite and it is not for this court to assume to make it definite by judicial construction. It is well settled that an executory contract which is indefinite as to the period for which it is to run will be treated as if it provided for a reasonable time. Bruce v. Smith (1873), 44 Ind. 1.

Notice within a reasonable time being a condition precedent to the right to maintain the action, the burden was on the appellant to plead and prove compliance therewith. Schaefer v. Hines (1914), 56 Ind. App. 17, 102 N.E. 838. United States v.Corwin (1889), 129 U.S. 381, 9 S.Ct. 318, 32 L.Ed. 710. Ordinarily, what amounts to a reasonable time is a question of fact although it may become one of law when the facts are not in dispute. Pickel v. The Phenix Insurance Company, of Brooklyn (1889), 119 Ind. 291, 21 N.E. 898. Metropolitan Life Ins. Co. v. Frankel (1915), 58 Ind. App. 115, 103 N.E. 501. A fact is not established by undisputed evidence, however, merely because the testimony of a witness in relation thereto is not directly controverted where such testimony is inconsistent with other facts and circumstances shown by the evidence. De Lange v.Cones, Admr. (1939), 215 Ind. 355, 19 N.E.2d 850. Where evidence, although uncontradicted, is equivocal in character and is fairly susceptible of two interpretations, one tending to support the claim of the plaintiff and the other that of the defendant, the court cannot determine the issue as a matter of law. The Cincinnati, Indianapolis, St. Louis and Chicago R'yCo. v. Darling (1892), 130 Ind. 376, 30 N.E. 416.

In my opinion the judgment should have been affirmed.

Richman, C.J., concurs in the dissenting opinion.

NOTE. — Reported in 44 N.E.2d 967, 144 A.L.R. 887.