CONCURRING OPINION
By McGILL, J.Upon the theory that Hopkins has betrayed an intimate friendship of nearly a lifetime by seeking to enforce a cancelled or abandoned contract, a decree should be entered for defendant. To such a theory I cannot subscribe. The written contract of August 16th, 1920, is consistent with that intimate friendship, which friendship is undisputed. The contract is likewise consistent with the fact that at one time Griffiths executed a will leaving half of his entire estate to Hopkins.
It is urged that the written instrument of August 16th, 1920, is not a contract but a mere option to buy. If it is a mere option why was not the word “option” used in the written agreement? The word “option” is plain and unambiguous and is generally used when intended. If a mere option, why was any reference made to the application of the dividends? If a mere option, why was not a time limit definitely fixed within which Hopkins must exercise his rights?
If that contract was cancelled, Hopkins knew it. If it was abandoned, he must have known it, for the reason that abandonment is a matter of intention. and requires an intentional relinquishment of rights. To me, it is incredible that Hopkins would wait until the death of his intimate friend and then endeavor to take advantage of the situation by seeking to enforce a contract which he knew had been cancelled or abandoned. Hopkins testified positively that there was never any suggestion of waiver or nullification of the contract.
The evidence of cancellation consists principally of the testimony of Miss Kohler who was formerly a secretary of Griffiths. She testified that Griffiths told her it was cancelled. In addition, she identified her own pencil notations of uncertain date indicating cancellation upon an unexecuted copy of the agreement. Against this testimony stands the original executed agreement and the positive testimony of Hopkins. Written agreements are not ordinarily cancelled in the manner here urged by the defendant.
The delay in seeking an accounting or settlement between the parties is explained by the fact that Griffiths desired no settlement until final liquidation of The Buckeye Engine Company which was delayed until certain tax adjustments had been made with the Federal Government. These tax claims were not in fact finally adjusted until July, 1931, some time after the death of Griffiths. Whether or not a settlement between Griffiths and Hopkins could have been made at an earlier date, is not the real question. If the parties had a bona fide belief that final liquidation of the company and an adjustment of the tax claims must first be had, or, if Griffiths desired that their settlement and accounting be postponed, until after the tax adjustment and Hopkins acquiesced, such bona fide belief or desire and acquiescence would destroy any intention to abandon the agreement.
Some question has been raised as to the propriety of or reason for the obtaining of the consent of many of the beneficiaries and particularly of the consent of Mrs. Griffiths to the decree of the court below. While defendant complained that Mrs. Griffiths was not called as a witness so that she could be cross-examined, it is significant that the defendant could have called Mrs. Griffiths but did not do so. Nor was the failure to call her accounted for in any manner. It is strongly intimated in defendants’ brief that full disclosure was not made to Mrs. Griffiths. Certainly, if there is any merit in this claim, she could not be regarded as a hostile witness. This argument furnishes an additional reason why defendant as a trustee should have called Mrs. Griffiths. Her conduct, too, is consistent with the written agreement of August 16th, 1920, which she also signed.
Á determination of this case depends to a considerable extent upon the weight given to the testimony of plaintiff. His testimony clearly accounts for the delay in seeking to enforce his rights, and destroys the claim of abandonment of the written agreement.
*129Holding these views, I am of the opinion that the Court of Common Pleas was right in finding for the plaintiff and that this court likewise should enter a decree for plaintiff.