dissenting. There is no remaining issue of fact to be resolved in this case, and thus summary judgment was appropriate. A. R. Civ. P., 56. The intention of the parties is very clearly expressed in their contract. I cannot understand the unwillingness of the majority to recognize that paragraph 3 is no more than a condition subsequent attached to paragraphs 1 and 2. Followed to its logical conclusion the majority opinion would make every contract containing a conditon “ambiguous.”
The contract is not ambiguous. The condition made it aleatory, but that does not affect its validity. If it did, we could no longer have insurance contracts. See generally, Cor-bin, Contracts, § 728 (I960). The fact that the parties used the term “liquidated damages” is irrelevant. Rest. Contracts, Comment (b.) to § 325 (1932).
Although I could dwell upon the majority opinion’s hint that the judgment rendered below was somehow unfair, I prefer to point up what I believe to be its more concrete and central fallacy. The majority opinion would permit the trial court to ignore paragraph 3 of the contract. As noted above, I see no need to choose between paragraph 3 and the remainder of the instrument, and I find particularly troublesome the suggestion that this court might stand still for the enforcement of all but a portion of a contract when there is not even a suggestion that the part thus to be excluded is for any reason unenforceable.
Had this contract been interpreted below as presenting a question of intent and a jury, let us say, had ascertained the intent of the parties was to be bound by paragraphs 1 and 2 but not 3, the judgment based on such a decision would have been reversible for the reason stated by the majority here, i.e., interpretation must be “from the standpoint of the entire contract.”
For the reasons stated, I respectfully dissent.
Judge Howard joins in this dissenting opinion.