Dissenting Opinion by
Mr. Justice Simpson,May 5, 1919:
It is conceded that the contract upon which defendant relies for its claim of set-off is of a dual character, one part containing an ordinary agreement of stock subscription, by which Nolle agrees to subscribe for twenty shares of stock in the defendant company, and the other part being as follows: “I do further agree to purchase ten barrels of beer per week, aggregating five hundred and twenty barrels per year. This agreement is conditioned upon the fact that the product delivered is of a quality equal to standard beers upon the market, and is sold at a rate not higher than that ruling in the open market at the time and dates of delivery.”
It seems to be conceded also that, if this was all there was in the case, Nolle’s obligation to purchase would have been, as the majority opinion expresses it “terminable by either party on reasonable notice”; and this is the rule repeatedly declared by us: Coffin v. Landis, 46 Pa. 426; McCullough, etc., Crucible Company v. Philadelphia Company, 223 Pa. 336; Turtle Creek Borough v. Pennsylvania Water Company, 243 Pa. 415; Bellevue Borough v. Ohio Valley Water Co., 245 Pa. 114; but it is said “that the intention here could safely be derived from the circumstances under which the parties contracted and the subject-matter of the agreement.” As those “circumstances” rest in parol, the fundamental question arises: What tribunal is to determine how far, if at all, *543they compel a conclusion at variance with the legal rule above stated. It would be an affectation of learning to cite the authorities on that question, for every judge of this court has repeatedly said that unless only one inference is possible from the oral evidence, the question is for the jury. That the oral evidence admits of more than one inference here is evident from the fact that defendant in his affidavit of set-off avers the duty of Nolle to purchase the beer was to continue “so long as he could legally purchase the same, for the purpose of resale”; the court below held it “was understood to exist as long as the plaintiff, Nolle, was a stockholder and a licensed liquor dealer”; the majority opinion says “the evident intention of the parties was that the agreement should continue in force so long as the plaintiff was engaged in the business of selling beer by retail, situated as he then was”; and three of the seven judges of this court are of opinion that there is nothing in the evidence to justify a finding at variance with the rule of reasonable duration.
If it is still thought this court may itself determine the question at issue by considering the circumstances “under which the parties contracted and the subject-matter of the agreement,” the record discloses the former to be as follows:
The defendant was being organized as a brewing company, which wished to sell at least part of its capital stock to retailers who would agree to purchase part of its beer. Its subscription agent called upon plaintiff and asked him to subscribe to the stock. The only evidence of what occurred between them is as follows:
“Q. When you went to see Mr. Nolle, did you explain the purposes of this organization?
“A. Yes; we explained it to Mr. Nolle the same as to every retail liquor dealer that we went to see.
“Q. What did you tell him?
“A. We said to him that we were soliciting stockholders for this brewery, and only such dealers that held a retail license and wholesalers that sold malt liquors; *544we did not solicit any stock from any one except they had a licensed.,plaee and would be willing to subscribe to a certain amount of beer. Mr. Nolle agreed to that, and we explained it thoroughly, the proposition, and he signed the application for stock.”
It will be noticed that nothing is said as to the time Nolle was to continue taking beer from defendant, or that the purpose of the organization was to have only venders of beer as stockholders (though it is said they were the only ones being solicited to purchase stock), or that only stockholders were to purchase defendant’s beer. The absence of anything to show that Nolle agreed to be bound for an indefinite length of time, is potent evidence that it was not intended he should be, for it would have been easy to say so had it been so intended. It is evident defendant wished its stockholders who were vendors of beer to be customers for some length of time, and Nolle was willing to agree to be so, but the question is, for what length of time? On that point both the contract and the evidence are absolutely silent, and there is nothing from which it can be concluded Nolle was to be bound beyond a reasonable time, which would cover the crucial period in the corporation’s existence, namely, when it was building up its trade. To assert anything more on the evidence here, is to make a contract, not to construe one.
In my judgment everything said and written is more compatible with a reasonable duration for the contract, than with an indefinite one, and therefore nothing in this record justifies a variance from the legal rule. The law of reasonable duration is in accordance with the principle that parties put all of their agreement into the writing, all prior conversations being merged therein; with the presumption that parties intend an equality of obligation, each being bound according to the same rule; with the presumption that certainty and not indefiniteness is intended, contracting parties being able to see what' they can do during a reasonable length of time, but not what *545lies undisclosed in the womb of the future; and because it imposes a minimum loss, discourages dissatisfaction and litigation, and leaves the parties free to contract with others, when, if ever, differences arise between them. In other words, it applies the principles upon which the “reasonable time” and the “restraint of trade” doctrines are founded, leaving to the parties the power to contract otherwise, if they see fit so to do, but not assuming that they so intend when they do not say so.
On the other hand, no reason is given why the term of plaintiff’s continuance in business should be adopted instead of defendant’s continuance in business, or plaintiff’s ownership of the stock, or all three combined, or the reasonable duration rule above set forth, any of which could just as well be “derived from the circumstances under which the parties contracted and the subject-matter of the agreement.” It is true the conclusion which limits the contract to the period while Nolle was in business at his then present location avoids some of the pitfalls which the opinion of the court below leaves open, but it suggests enough of its own to indicate the lack of safety in accepting it as a conclusion of law. As already quoted, it interprets the contract to mean it “should continue in force so long as plaintiff was engaged in the business of selling beer by retail, situated as it then was.” But why “situated as it then was”? Nothing in the contract or conversation implies it. Evidently the conclusion reached would appear too forced without that clause, for otherwise the contract might continue although Nolle sold beer in other places than Pittsburgh. With it in, could he have moved next door, or into the next street and have escaped liability? Or if not, how far away must he have moved to be rid of it? Or might he have ceased to sell beer at retail the day after the contract was made and have thereby avoided it, and could he have later started again without renewing it ? And is he at the mercy of defendant who may either sell or refuse to sell to him, as it chooses, he continuing bound until it *546pleases defendant to release Mm by refusing to sell to Mm further; and if the duty to sell is also to be implied, what is the extent of the implication ? Must defendant be at its present location, or near by, or does its duty continue though Nolle and it, one or both, in the approaching prohibition times, move to other places where beer may be sold? And is it legally bound to brew and sell so long as any of its numerous stockholders, who are vendors of beer, desire it to continue doing so, though but one purchaser is left and it is selling at a loss? It is no answer to these questions to say they will be solved when they arise, for the fact that it is possible for them to arise under the construction the majority place on. the contract, makes them important in determining what the contract really means.
From those doubts and uncertainties one can safely turn to the rule of law above stated, for it is both certain and equitable, and perhaps is nowhere better expressed than by Lord Denman, in Apsden v. Austin, 5 Ad. & Ellis (n. s.) 671, quoted and followed by us in Coffin v. Landis, supra: “It will be found that where words of recital or reference manifest a clear intention that the parties should do certain acts, the courts have from them inferred a covenant to do such acts, and sustained actions of covenant for the nonperformance, as if the instruments had contained express covenants to perform them. But it is a manifest extension of that principle to hold that where parties have expressly covenanted to perform certain acts, they must be held to have impliedly covenanted for every act convenient or even necessary for the perfect performance of their express covenants. When parties have entered into written engagements with express stipulations, it is manifestly not desirable to extend them by any implications; the presumption being that, having expressed some, they have expressed all the conditions by which they intend to be bound under that instrument. It is possible that each party to the present instrument may have contracted on the supposition *547that the business would in fact be carried on, and the service in fact continued during the three years, and yet neither party might have been willing to bind himself to that effect; and it is one thing for the court to effectuate the intention of the parties to the extent to which they may have even imperfectly expressed themselves, and another to add to the instruments all such covenants as upon a full consideration the court may deem fitting for completing the intention of the parties, but which they either purposely or unintentionally have omitted. The former is but the application of a rule of construction to that which is written; the latter adds to the obligations by which the parties have bound themselves, and is of course quite unauthorized as well as liable to great practical injustice in the application.”
As already pointed out, in the present case we do not have even “words of recital or reference [which] manifest a clear [or any] intention” that Nolle should be bound for an indefinite period, yet the majority propose to bind him by doing here what we have repeatedly said could not be done. In my judgment the courts should never add a term to a written contract, especially one in antagonism to a general rule of law on the subject, unless the term to be added appears with certainty, as inevitably arising out of the contract, and as being the only term which could be added to make the contract reasonable and certain. Here, as above shown, the opposite conclusion is true.
I would, therefore, reverse the judgment, and award a new venire, that a jury might determine what would be a reasonable time, from and after August 13, 1910, during which Nolle should be held liable for his refusal to take the ten barrels a week as agreed upon.
Judges Moschziskeb and Kephabt join in this dissent.