(concurring and dissenting).
I am of the opinion that the contract in the instant case is not uncertain. Its meaning may be construed from its own terms and it was error for the trial court to admit parol evidence on the issue of severability.
It is a basic principle of contract law that:
... the meaning and effect to be given a contract depends upon the intent of the parties, and that this is to be ascertained by looking at the entire contract, and all of its parts in their relationship to each other; and this principle applies to whether they intended separate aspects of their contract to be severable, and that if this results in uncertainty, [then] he may and should look to extraneous evidence concerning the background and surrounding circumstances in order to make that determination.1 [Emphasis added.]
Pertinent provisions of the contract here concerned read as follows:
2. WITNESSETH: That the Seller, for the consideration herein mentioned agrees to sell and convey to the buyer, and the buyer for the consideration herein mentioned agrees to purchase the following described real property, situate in the county of Salt Lake, State of Utah, ... [m]ore particularly described as follows:
Lots # 309, # 310, # 311, # 312, # 313, # 314, # 315, # 316 Daybreak Phase III Subdivision as recorded in the Salt Lake County Records Office.
3. Said Buyer hereby agrees to enter into possession and pay for said described premises the sum of Eighty Thousand Dollars ($80,000.00) payable at the office of Seller, his assigns or order 307 W. 200 S., SLC, Utah, 84101, strictly within the following times, to-wit: Eight Hundred Dollars ($800.00) cash, the receipt of which is hereby acknowledged, and the balance of $79,200.00 shall be paid as follows:
Beginning March 1, 1977, buyer to complete payment on two (2) lots ($19,800.00) and thereafter to close two (2) lots on the first of each month. Total amount to be paid on or before June 15, 1977.
*410Possession of said premises shall be delivered to buyer on the 7th day of December, 1976.
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16. In the event of a failure to comply with the terms hereof by the Buyer, or upon failure of the Buyer to make any payment or payments when the same shall become due, or within 15 days thereafter, the Seller, at his option shall have the following alternative remedies:
A. Seller shall have the right, upon failure of the Buyer to remedy the default within five days after written notice, to be released from all obligations in law and in equity to convey said property, and all payments which have been made theretofore on this contract by the Buyer, shall be forfeited to the Seller as liquidated damages for the non-performance of the contract, and the Buyer agrees that the Seller may at his option reenter and take possession of said premises without legal processes as in its first and former estate, together with all improvements and additions made by the Buyer thereon, and the said additions and improvements shall remain with the land and become the property of the Seller, the Buyer becoming at once a tenant at will of the Seller; or
B. The Seller may bring suit and recover judgment for all delinquent installments, including costs and attorneys fees. (The use of this remedy on one or more occasions, shall not prevent the Seller, at his option, from resorting to one of the other remedies hereunder in the event of a subsequent default); or
C. The Seller shall have the right, at his option, and upon written notice to the Buyer, to declare the entire unpaid balance hereunder at once due and payable, and may elect to treat this contract as a note and mortgage, and pass title to the Buyer thereto, and proceed immediately to foreclose the same in accordance with the laws of the State of Utah, and have the property sold and the proceeds applied to the payment of the balance owing, including costs and attorney’s fees; and the Seller may have a judgment for any deficiency which may remain. In the case of foreclosure, the Seller hereunder, upon the filing of a complaint, shall be immediately entitled to the appointment of a receiver to take possession of said mortgaged property and collect the rents, issues and profits therefrom and apply the same to the payment of the obligation hereunder, or hold the same pursuant to order of the court; and the Seller, upon entry of judgment of foreclosure, shall be entitled to the possession of the said premises during the period of redemption.
17. It is agreed that time is the essence of this agreement.
21. The Buyer and Seller each agree that should they default in any of the covenants or agreements contained herein, that the defaulting party shall pay all costs and expenses, including a reasonable attorney’s fee, which may arise or accrue from enforcing this agreement, or in obtaining possession of the premises covered hereby, or in pursuing any remedy provided hereunder or by the statutes of the State of Utah whether such remedy is pursued by filing a suit or otherwise. [Emphasis added.]
On March 19, 1977, defendant-seller (Development Services), sent plaintiff-purchaser (Management Services) a “contract forfeiture notice” which reads, in pertinent part, as follows:
TO MANAGEMENT SERVICES CORPORATION, and all claiming by, through and under them:
You and each of you will please hereby take notice that the undersigned DEVELOPMENT ASSOCIATES of Salt Lake City, Utah does hereby give notice that they elect to exercise the option designated in paragraph 16A of a certain Uniform Real Estate Contract dated December 17, 1977, wherein they are named as Seller, and MANAGEMENT SERV*411ICES CORPORATION, is named as Buyer, wherein the terms and conditions with respect to the sale of certain parcels of real property located at 2215 East 9200 South, Sandy, Utah, described hereafter, are particularly set forth.
PROVIDED, however, as required by law, you are extended an option for a term of five days after service of this notice upon you to reinstate said contract by the payment to the undersigned through their attorney, Grant S. Kesler, 307 West 200 South, Salt Lake City, Utah, for the sum of $20,369.10 representing delinquent installment payment for the month of March, 1977, together with the further sum of $100.00 represented to be a reasonable attorney’s fee payable in addition to said installments as set forth in paragraph 21 of said agreement.
In the event of your failure to reinstate said contract the Seller intends to exercise the right of repossession and forfeiture as set forth in paragraph 16A. No payments less than herein set forth and no payment to the previously designated collection agents will be acceptable as applicable to said contract.
* * * * * *
By the very terms of the contract, and contrary to any theory of severability, the buyer took possession of all of the lots on the date the contract was executed, December 7, 1976. The buyer was to make four equal installment payments in the amount of $19,800 on March 1, April 1, May 1, and June 1. The agreement clearly provided for the sale of eight lots, and it is also clear that it was not intended that the buyer be permitted to accept certain lots and reject others. That the purchase of individual lots is not severable from the contract is made further abundantly clear by paragraph 16C which gives the seller the option to sue for the entire unpaid balance of the contract should the buyer fail to make any payment within 15 days of when due. Rather than choosing this remedy, the seller opted to proceed under 16A. When default was not remedied within five days after written notice, the seller was released of all obligations in law and in equity to convey the property.
To hold as does the majority is to effectively emasculate the provision that payments were to be made “strictly within the [named] times” whereby the buyer could effectively “tie up” all of the property (until at least June 15) while consistently defaulting on the monthly payments. The agreement is a contract to purchase property, not a unilateral option to purchase.
I believe that the contract can and should be interpreted as a matter of law,2 and that the trial court erred in admitting parol evidence. Nevertheless, I fail to see how the testimony admitted has any relevance to the issue of severability. As explained in the majority opinion, that testimony was simply to the effect that the buyer was to choose which two of the eight lots would be “closed” each month, and that White was to be paid a real estate commission for selling the lots to third parties. I cannot conclude that such testimony shows the parties’ intent to treat the contract as having severa-ble components.
I can accept the majority’s analysis of attorney’s fees and that they should be recoverable by the prevailing party on appeal where there is a contractual obligation therefor; however, in light of the foregoing analysis, I would reverse and remand the case for a determination of reasonable attorney’s fees to be awarded to defendant.
STEWART, J., concurs in the opinion of HALL, J.. Thomas J. Peck & Sons, Inc. v. Lee Rock Products, Inc., 30 Utah 2d 187, 515 P.2d 446 (1973).
. A function for which we are just as suited as is the trial court. Ephraim Theatre Co. v. Hawk, 7 Utah 2d 163, 371 P.2d 221 (1958).