dissenting.
I respectfully dissent from the majority opinion in this case. I agree with the majority opinion that the Court of Appeals makes an erroncous statement concerning the waiver issue.
If one would assume the trial court in fact did err in permitting the husband to testify as to the understanding of the parties in drafting the written agreement, the wife then should have had the opportunity without waiver to cross-examine the husband regarding his ideas and to present her own evidence concerning her understanding.
I believe the majority has cited correctly the proper authorities to support this position. However, without much question, the written agreement entered into by the parties is virtually impossible of interpretation based solely upon the language contained therein. Marjorie Thomas claims the language is clear and she proceeds to give her interpretation of that "clear" meaning. Harry Thomas comes to the opposite conclusion and states that the meaning, strictly within the written words of the contract, is unclear.
In writing the opinion for the Court of Appeals, Judge Robertson, after reciting the terms of the contract and conclusions of the trial judge, stated:
"'These conclusions are sensible and a reasonable interpretation of the agreement as a whole. The agreement imposes no obligation upon Harry Thomas or his estate to complete the monthly alimony payments after his death and no obligation to pay Marjorie Thomas's estate after her death." Thomas v. Thomas (1990), Ind.App., 548 N.E.2d 1194, 1196.
*221On the other hand, the majority opinion of this Court has little trouble in finding that the language of the contract leaves no doubt as to the opposite conclusion. It thus appears we have judicial pronouncements which clearly indicate the written contract is in fact not so clear. Under these circumstances, it was proper for the trial court to admit the parol testimony of both parties to explain the ambiguous language of the contract. See 18 LLE. Evidence § 281 (1959) and the numerous Indiana cases cited therein.
I therefore would hold that the trial court did not err in admitting the parol testimony of Harry Thomas nor was there any waiver when Marjorie Thomas submitted her parol evidence as to the understanding of the contract. Under the circumstances, I feel there was no error by the trial court as far as the submission of evidence was concerned.
I believe the trial court should be affirmed.
KRAHULIK, J., concurs.