concurring in part and dissenting in part:
I agree that the district court’s ruling should be affirmed to the extent that it held that appellants, Henry and Joann Gaines (“appellants” or “Gaineses”), had breached the settlement agreement by not disclosing the $2,000 water bill lien and that the agreement could not be reformed or the original suit reopened on the ground of mistake. That relieves Continental Mortgage and Investment Corp. (“Continental”) of any further liability to appellants. The breach directly affects the bargain between appellants and Continental, and I concur in that part of the majority’s holding. It does not follow that the other defendants below should derive a windfall benefit from that situation; accordingly, I do not follow in the holding of Part IV of the majority opinion. I believe that on this record we cannot say that appellants’ breach of the settlement agreement relieved Messrs. James E. Mitchell III (“Mitchell”) and George E. Granse (“Granse”) of their obligations to pay appellants $2,000 and $1,000, respectively, under the terms of the settlement agreement. The district court never considered the possibility that those obligations might be independent of the Gaineses’ claims against Continental and Tamco Retirement Fund (“Tamco”). The claims against Mitchell and Granse should be remanded to the district court.
The majority concludes that the payments by Mitchell and Granse of $2,000 and $1,000, respectively, to appellants on or before the date of settlement was the price for Continental’s release of its cross-claims against Granse and Mitchell for indemnification. The majority is not deterred from adopting this interpretation by the fact that none of the parties has ever suggested it to us. What the settlement agreement really represented, according to the majority, was a $3,000 payment by Continental to the appellants, in addition to a pledge to refinance the loan, and a separate claim by Continental against Granse and Mitchell for the sum of $3,000. Continental’s dual role as payor and recipient washed out, and Granse and Mitchell paid directly to the Gaineses. When the appellants failed to provide clear title, refinancing became impossible, and Continental’s obligation to pay the appellants $3,000 disappeared. The liabilities of Granse and Mitchell were extinguished simultaneously.
This analysis, however, is flawed. The majority simply asserts, without any foundation, that $3,000 represented the value of a claim by the Gaineses against Continental — and of Continental’s cross-claims against Granse and Mitchell — rather than part of the value of the Gaineses’ direct claims against Granse and Mitchell. It recognizes that its interpretation is not “the only possible explanation,” Majority opinion (“Maj. op.”) at 379. Indeed, the majority’s conjecture seems to me the least likely possible explanation, because it invents a separate $3,000 claim by the Gaineses against Continental — a claim never alleged or covered in the settlement agreement.
The majority also devises a $3,000 cross-claim by Continental against Mitchell and Granse which is equally unsupported by the record. The district judge never referred to it in her ruling. The settlement agreement did not mention any cross-claims by Continental against either Granse or Mitchell, except for the boilerplate language in the agreement referring to the settlement of all “claims and cross claims.” The district court’s records do reveal, as the majority correctly notes, that Continental, in its answer of September 22, *3811986, cross-claimed against Granse and Mitchell, and that Mitchell, in his answer of March 10, 1987, cross-claimed against Granse. Yet on appeal none of the parties brought the cross-claims to our attention, an omission that perhaps reflects the parties’ own views that these cross-claims are not relevant to the interpretation of the settlement agreement.
A more plausible explanation than the majority’s is that the parties intended the settlement agreement to be a divisible, rather than a unitary, contract. That is, the Gaineses’ claims under the agreement against Granse and Mitchell were separate from the Gaineses’ claims against Continental, and survived their failure to provide clear title. Under this view, the settlement agreement was composed of two independent contracts: appellants withdrew their suit against Continental and Tamco in exchange for a promise to refinance the 1985 loan, and appellants released their legal claims against Granse and Mitchell for a total of $8,000, $6,000 of which was to come from Granse and $2,000 from Mitchell. The failure of the Gaineses to remove the lien on their property may have prevented Continental from refinancing the loan, but it had no effect on Granse’s and Mitchell’s obligations under the settlement agreement. The extension of new credit to appellants was entirely separate from the settlement of the claims against Granse and Mitchell.
The different payment schedules do not indicate that the contract was unitary, as the majority suggests. Of the $8,000 total that Granse and Mitchell were to pay the Gaineses, $3,000 was intended to be used by appellants to satisfy the note held by Tamco. That was why the settlement agreement provided that it be paid “as soon as possible,” in contrast to the $5,000 to be paid by Granse over the course of the next year under the Final Judgment (Consent) Order entered by the court. Otherwise, there was no difference between the $5,000 to be paid by Granse later, an obligation which the majority concedes survived the failure of appellants to remove the lien, and the $3,000 due at settlement.
The majority maintains that although its explanation of the settlement agreement is not the only possible one, the appellants have failed to show that the district court abused its discretion in denying their motion to enforce the settlement agreement because a “non-abusive rationale,” Maj. op. at 380, is apparent from the face of the agreement. The record shows, however, that no rationale is apparent, because the district court never considered divisibility as a possibility; it made no factual findings regarding the interpretation of the settlement agreement, let alone those that are the predicate of the majority’s holding today. The court below never imagined the theory proposed by the majority that the payment of $3,000 to the Gaineses also involved the release of Continental’s cross-claims against Mitchell and Granse. The district court issued its ruling in the informal setting of a status conference and dismissed the claims against Granse and Mitchell orally in a spontaneous response to a question from appellants’ counsel. Where a district court has “failed to make findings of fact essential to a proper resolution of the legal question,” the proper course is remand, Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714, 106 S.Ct. 1527, 1530, 89 L.Ed.2d 739 (1986).
I conclude that the majority has erred by simply assuming, on the basis of no findings by the district court and no evidence in the record, that the settlement agreement is unitary rather than divisible. A remand to the district court for interpretation of the agreement is necessary because the question of divisibility, like other aspects of contract construction, is a matter of the parties’ intent unless the terms of the contract are wholly unambiguous. See Davis v. Chevy Chase Financial Ltd., 667 F.2d 160, 169-70 (D.C.Cir.1981). Divisibility is an issue of fact that is particularly ill-suited to resolution by an appellate court, because many factors must be considered in determining the parties’ intent as to the divisibility of a contract. As the District of Columbia Court of Appeals has held:
There is no set answer to the question of when a contract is divisible and when it is entire. There are merely suggested *382factors to be considered in resolving the issue. Consideration may be given to: (1) whether the parties assented to all the promises as a single whole; (2) whether there was a separate consideration covering various parts of the agreement or whether consideration was given for each part of the agreement; and (3) whether performance of each party is divided into two or more parts, the number of parts due from each party being the agreed exchange for a corresponding part by the other party.
Howard University v. Durham, 408 A.2d 1216, 1219 (D.C.1979) (citations omitted).
In this case, a factfinder would have to take notice of the separate consideration for the defendants Continental, Granse, and Mitchell — the release of different legal claims by appellants. The factfinder would have to weigh the possibility that the parties meant to illustrate the divisibility of the contract by devoting a different paragraph of the settlement agreement to each defendant. The factfinder also would have to take into account the total absence in the settlement agreement of any references to possible cross-claims by Continental, and to any claim by the Gaineses against Continental for $3,000. I cannot predict with certainty what such a factfinder would decide in this case, but the majority has an even harder road to travel. I do know that the majority’s assumptions go far beyond the facts contained in the district court’s decision and the record before us.
* * * sk * #
The principal may be small, but the principle is large. For the very reasons that we properly refused to allow appellants to reform the contract after their breach, we ought not reform this contract ourselves by assuming an indivisibility that was not found by the trial court and is not borne out by the record. I would remand the claims against Mitchell and Granse for further proceedings.