(dissenting).
With deference I dissent. I agree that this case should have been disposed of on motion for summary judgment. However, I think it should have been disposed of by a judgment that the obligations of Buckeye were outstanding subsisting obligations.
I am unable to understand just what legal issue was decided by the trial court and I am equally unable to understand what legal principle has been applied by this Court to sustain the judgment below. The majority opinion seems to base its affirmance of the judgment on the proposition that clauses 2 and 3 express mutually dependent obligations. With that I agree fully. Moreover, the opinion seems to hold that the contract was valid when executed, and that all that was required to make it a valid contract was Foley’s promise, while engaged in logging and lumbering operations, "to offer to Buckeye all pulpwood obtained in connection with any such operations,” and the opinion holds that this promise “was sufficient consideration for Buckeye’s promise to give Foley first refusal to purchase any saw timber stumpage offered for sale by Buckeye.” I agree with all of this. Having done so, I then believe that this ends our inquiry, because we have thus construed the language of clause 3 as merely requiring Foley to offer to Buckeye all pulpwood it obtains, and there was no requirement on Foley to continue in the logging or lumbering business to obtain pulpwood in order for it to insist on Buckeye’s performance.
Now, however, the majority seems to confuse the doctrine of dependency of provisions with the entirely different one of failure of consideration. The Court seems to say that if the obligations are mutually dependent, then Foley was required to remain in a position to supply pulpwood to Buckeye. I think this has nothing to do with dependency, but is purely a matter of construing clause 3. All that the dependency principle requires is that before Foley can require performance from Buckeye it must be in performance of its obligations.
We thus come to a construction of clause 3 to determine what it required Foley to do. I understand that the majority agree with me in that it requires merely that if Foley obtains any pulpwood from logging and lumbering operations, it is required to furnish such pulpwood to Buckeye. On that construction Foley has no duty or obligation to “obtain” a cord of pulpwood. It has no obligation to stay in a business that would enable it to “obtain” any.
We are bound to assume that the parties knew what they were doing if each of them, assuming that they both “contemplated” staying in their respective business, was satisfied to agree, as the majority opinion seems to hold that they did, “not to sell any of its output to a third person before first offering it to the promisee.”
The majority, however, holds that the sale of the mill by Foley or some other action by Foley somehow caused the contract to “become inoperative or ineffective.” These are strange words in dealing with obligations under a written contract. The Court reaches them by a statement that “the undisputed facts-showed that Buckeye furnishing Foley a source of supply of saw timber was to be *704in return for, and in effect conditioned on, Foley furnishing to Buckeye a source of supply of pulpwood.” This statement, without expressly saying so, simply repudiates or supplants the written contract, construed to mean the opposite, by referring to “the undisputed facts.”
It seems to me that if the Court is construing the language of clause 3 to mean that if Foley obtained no pulpwood then it had no right to demand performance by Buckeye of its obligation, that should be said. The difficulty with that, I apprehend, is that the trial court could not have so construed clause 3 on a motion for summary judgment. This is true for Foley attempted to show that Buckeye was not looking to it as a source of supply of pulpwood from its logging and lumbering operations because Buckeye did not even have a pulpwood plant for something over a year after the contract was entered into, and because it knew that the logging and lumbering operations then carried on by Foley would not produce any pulpwood for Buckeye. Some of this evidence was rejected by the trial judge, who then ruled that the evidence was “undisputed.”
However that may be, I think it plain that the majority, having correctly interpreted the contract as not requiring Foley’s continued operation, abandons that interpretation when it appears that, after some subsequent act by Foley, it seemed inequitable for Foley to hold Buckeye to its admitted obligation. I know of no principle of contract law that permits a court thus to remake the agreement of the parties.
I agree that the judgment can not stand, and that under the construction adopted by the majority there must be a trial on the damages suffered by Foley prior to the time the Court finds that Buckeye’s obligation became “inoperative or ineffective.”
However, I think the judgment should be reversed and that judgment should be rendered in favor of the appellant holding that the obligations of Buckeye are still binding and subsisting so long as Foley carries out its promise to give Buckeye first refusal of any pulpwood obtained by it from its logging and lumbering business.