The opinion
LINDE, J.,
concurring.
The majority finds that the surety bond in this case makes "an express promise to pay a third party,” though stated in the "archaic form” of conditions. The dissent, in turn, finds that the contract "is clear and unambiguous” and does not make such a promise. To me, it seems difficult to find a clause "express,” "clear,” or "unambiguous” on whose meaning this court divides, on which other courts have divided, and whose present interpretation may involve overruling prior decisions. To decide such a case as choice between *561 two "express,” "clear,” and "unambiguous” meanings in effect says that in selling and buying this "archaic” bond, the parties clearly understood something, but we disagree on what they clearly understood. That does not seem to me a question to be decided on the pleadings.
The allegations of plaintiffs complaint were sufficient to state a claim if PGE and defendant understood the bond in the manner contended for by plaintiff and adopted by the majority opinion. We do not know that those parties so understood the bond. Certainly, in light of Tait & Co. v. D. Diamond Corp., 228 Or 602 , 365 P2d 883 (1961), it is not self-evident. Plaintiff should have been allowed the opportunity to prove that this was the parties’ understanding of the bond but was prevented by the order sustaining the demurrer. For this reason, I concur that the demurrer should have been overruled.
Lent, J., joins in this opinion.