The principal question raised on this appeal turns upon the meaning to be given to the phrase "date of cessation of hostilities between the United States and [Germany and Japan]" as used in the contracts between the parties. We are in agreement with the district court for the reasons well stated in the opinion filed by Judge Grim, 95 F. Supp. 713, that the phrase as used in these contracts must be construed to refer to September 2, 1945, the date of the formal Japanese surrender rather than December 31, 1946, the date of cessation of hostilities proclaimed by the President. 12 F.R. 1. The remaining question is whether the district court erred in holding that it was mandatory to award the plaintiff interest at the legal rate on the balance of royalties due it under the contracts.
Without holding on what precise date the lease had expired, the court held that at the time of the filing of the suit, the lease had clearly expired although at that time no treaty of peace had been signed. In Girdler Corporation v. Charles Eneu Johnson Co., D.C., 95 F. Supp. 713, 715, affirmed 3 Cir., 194 F.2d 533, the court was asked to interpret a phrase in a contract providing that the Johnson Co., the nominee of Defense Plant Corporation, might use plaintiff's carbon black process until six months after the date of the "cessation of hostilities". The Johnson Co. contended that the "cessation of hostilities" referred to did not occur until December 31, 1946, the date of the presidential proclamation of the cessation of hostilities.
We have no doubt plaintiff's officers understood the expression as they said they did. This is the ordinary and commonly accepted meaning of those words. The courts have held that the clauses, "duration of the present war," "duration of the war," "termination of the war," and "engaged in war," when used in contracts, do not have a definite legal meaning, but depend upon the subject matter to which the words relate, the purpose of their use, and the intent of the parties under the facts and circumstances of each case. Girdler Corp. v. Charles Eneu Johnson Co., D.C., 95 F. Supp. 713, 715-716, affirmed per curiam, 3 Cir., 194 F.2d 533; Stinson v. New York Life Ins. Co., 83 U.S. App. D.C. 115, 167 F.2d 233, 235, 238-239; Samuels v. United Seamen's Service, Inc., 9 Cir., 165 F.2d 409, 411-412; Ehrlich v. Barbatsis Holding Co., Fla., 63 So.2d 911; Rupp Hotel Operating Co. v. Donn, 158 Fla. 541, 29 So.2d 441; Michael Truck Foundation v. Hazelcorn, 187 Misc. 954, 65 N.Y.S.2d 387; La Jolla Casa deManana v. Hopkins, 98 Cal.App.2d 339, 219 P.2d 871; Lincoln v. Harvey, Tex.Civ.App., 191 S.W.2d 764. It is not commonly understood that the words "duration of the war" necessarily mean until the formal treaty of peace is signed.
Upon the termination of said trust, the principal of the trust was bequeathed to designated beneficiaries residing in the Western Zone of Germany who were nationals of Germany. No peace treaty has yet been signed between the United States and Germany as a whole for the reason that it has not been possible to secure the unification of Germany. The literal requirement of the will for a "Treaty of Peace" not having been accomplished, a question of construction is properly presented. The court will not permit mere verbiage to defeat the apparent purpose intended by the testator ( Carter, Macy Co. v. Matthews, 220 A.D. 679, 683, affd. 247 N.Y. 532; Collister v. Fassitt, 163 N.Y. 281, 286; Atwater Co. v. Panama R.R. Co., 246 N.Y. 519, 524; Tuck Foundation v. Hazelcorn, 187 Misc. 954, affd. 188 Misc. 1046; Girdler Corp. v. Charles Eneu Johnson Co., 95 F. Supp. 713, affd. 194 F.2d 533). It is apparent from the surrounding circumstances that the intent of the testator in the phraseology of the will was to avoid confiscation of the bequests by the United States Government of property belonging to enemy aliens.