Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; William H. Holly, Judge.
Before EVANS, SPARKS, and KERNER, Circuit Judges.
Plaintiff has appealed from a judgment dismissing her complaint on the ground that it failed to state a claim upon which relief could be granted and denying her leave to file an amended complaint.
The facts stated in the complaint and admitted to be true for the purpose of testing their sufficiency are that on October 15, 1935, the parties entered into a written contract, under seal, the material portions of which are:
"Whereas, it is the desire of the parties hereto that provision shall be made, as hereinafter set forth, for the maintenance of the party of the second part and her children, Mary Katherine Buchanan and John Lawrence Buchanan, in the manner and to the extent hereinafter set forth;
"(1) the party of the first part [defendant] will cause to be remitted each week to the party of the second part [plaintiff], at her post office address, the sum of Sixty-five Dollars ($65.00), such remittance to continue for a period of five (5) years, or until her death.
"(2) On condition that the said Mary Katherine Buchanan will enter a private boarding school, selected and approved by the parties hereto, and to the best of her ability endeavor to make passing grades each year while therein, the party of the first part agrees that, for a period of not more than five (5) years, he will provide, as needed, for the tuition, board, clothing and other reasonable requirements of said Mary Kathering Buchanan in an amount each year not exceeding Twelve Hundred Dollars ($1,200.00).
"(3) The party of the second part will provide as she sees fit for her son, John Lawrence Buchanan."
The complaint affirmatively showed the existence of diversity or citizenship and the requisite jurisdictional amount, and alleged that defendant promised "to pay for the support and maintenance of plaintiff and her children the sum of $65 each and every week for a period of five years, or for the duration of her life, whichever space of time were the longer."
The District Court construed the contract to mean that the "defendant would make the payments to plaintiff for five years if she should live that long, and that the obligation to make the payments ceased at the end of five years, or earlier than that should she die within that period."
The record discloses that after defendant moved to dismiss the complaint, the court handed down a memorandum opinion sustaining defendant's motion to dismiss, and indicated it would enter a judgment dismissing the suit. Plaintiff promptly prepared an amended complaint setting forth the facts and circumstances surrounding the parties at the time the contract was executed, their relationship, their negotiations leading up to the agreement, and the underlying purpose they had in view when entering into the contract. Upon defendant's objection and before the order of dismissal was entered, the court denied plaintiff's motion to file her amended complaint.
In support of the judgment the defendant contends that the defendant agreed to make the weekly payments either for a period of five years, or until the plaintiff's death, and that the first paragraph is unambiguous and, therefore, not open to construction. He further argues that the contract is one with alternative provisions with the promissor having the option of performing under either.
Plaintiff, however, contends the contract to mean that the payments were to be for five years or until death, ...