concurring.
I concur in the majority determination that the judgment must be reversed and the case remanded. I additionally agree with the analysis of the defense of “frustration of purpose” as a means separate from the defense of impossibility for excusing performance. The matters constituting the substance of that assertion are best left to the express agreement of the parties.
I cannot agree, however, that the court properly submitted the case to the jury without ruling or instructing upon the validity of the restrictive covenant. See Winney v. Board of Comm’rs. (1977), Ind.App., 369 N.E.2d 661.
For nearly a hundred years our courts have held that whether a restrictive covenant is reasonable and enforceable is a question of law to be determined by the court. Wiley v. Baumgardner (1884), 97 Ind. 66. See also Donahue v. Permacel Tape Corp. (1955), 234 Ind. 398, 127 N.E.2d 235. It is unnecessary to again recount the considerations bearing upon that determination. See, e. g., Frederick v. Professional Bldg. Maint. Ind., Inc. (1976), 168 Ind.App. 647, 344 N.E.2d 299.
It is, of course, true that in Raymundo v. Hammond Clinic Ass’n. (1980), Ind.App., 405 N.E.2d 65 we found it necessary to reverse a trial court’s determination of reasonableness made on a summary judgment. The reason for that reversal arose from our interpretation of the summary judgment vehicle which precludes the court from weighing evidence and determining credibility issues in granting such a judgment. The demonstrated existence of relevant disputed factual issues which bore upon the reasonableness determination was reinforced by our general concern that where such issues are shown to exist, the ultimate determination is best made when the facts are fully developed through the adversary process rather than in a “trial by affidavit.”
That defect was not present in the case we now examine. If the facts essential to determining the legal question of reasonableness were essentially undisputed the court should have ruled on the enforceability of the covenant and charged the jury on the remaining issues. If there were critical disputed facts upon whose resolution the question of law depended, then the jury should have been appropriately instructed that the covenant was enforceable or not depending upon their resolution of those facts.
It was reversible error to fail to advise the jury on the law question presented.
I therefore concur in the reversal.