specially concurring.
While I see nothing wrong with the Court’s rationale for reversing, a far better result, and one commanded by case law precedent would be a reversal bottomed on that part of the court’s opinion which observes that the buyers defended in the court below on the basis that the acceleration of the contract balance “was an unjust and unconscionable penalty.” The learned trial judge saw it this way:
I’m convinced that the contract terms are clear. The Default Notice was clear in compliance with the contract. That the deadline passed and that the $50 payment was a required condition precedent to considering the default cured. And, therefore, the default was not timely cured. And that entitled the plaintiffs to exercise their options under the contract, which they have done. ... So I’m going to grant Summary Judgment to the plaintiffs. I think they are entitled to the remedy they have requested, which is the acceleration of the debt, therefore they’re entitled to a Judgment for it under the contract.
Now, you have made a request to me that before I actually grant that remedy I give you an opportunity to convince me that I have the authority to fashion any — another remedy I find more equitable. I’m prepared to read such a brief and examine the case law. I caution you in advance that I am a Judge who believes in the freedom of contract and have great difficulty with being granted the vast authority which many juries [sic, jurists] want to claim for themselves to rewrite and organize at will the lives of individuals. In short, I’m not fond of the idea of having the power to find a contract has been violated and then take the position that if I don't like the results of that violation I can fashion some other results. The idea I must admit is foreign to me. I really don’t think that Judges should have that power. But I — if the great weight of appellate authority is running that way, then, I don’t think that I should sidestep it. I think that if the appropriate course of action is to determine whether I find this consequence equitable, then, I would accept that responsibility even though I would probably not choose it for myself. And I’m prepared to give you a chance to brief it. Tr., pp. 15-17 (emphasis added).
The underscored portion of the excerpt serves to suggest the trial court’s disenchantment with the doctrine of Graves v. Cupic, 75 Idaho 451, 272 P.2d 1020 (1954), a decision which emanated from an enlightened court and which has well-served the people of this state for over thirty years. The contract provision here utilized had nothing whatever to do with the real premise of the contract — that being the buyers’ promise to make monthly payments until the property was paid for.
While it may not be doubted that the contract could exact from the buyers the requirement that they would be responsible for reimbursing the sellers’ expenses in sending out a notice of default, I cannot conceive that there has ever before been an Idaho jurist who would uphold the sanctions of either acceleration or forfeiture for a buyer’s failure to tender the amount of those expenses with the delinquent payment. Such a contract provision is simply unconscionable, and if enforced, it is the infliction of a penalty. This would be and was true here — where the penalty was acceleration followed by judicial sale whereat the sellers bid in $15,000 of their total *801judgment of $27,230.51, resulting in the assessment of a deficiency judgment in excess of $12,000. The judgment of foreclosure included $23,002.92 balance due on the $36,000 original purchase price — thus establishing that over $13,000 in principal had been paid at time of foreclosure. The net result of the proceedings in the court below erased the buyers’ equity of $13,000 in the premises, and left them owing a deficiency judgment in excess of $12,000, a total loss of $25,000.
From what, did all this loss stem? The answer, an unbelievable one, is simply that the buyers were one day late in paying into the escrow the magnificent sum of $50— which was for the sole purpose of reimbursing the sellers for their expense in mailing the notice, the contract payments of purchase price having been brought current. The damage done to the sellers by the one day delay in tendering the paltry $50 is not difficult to estimate. Technically, the sellers were deprived of the $50 owed them for one day, and that debt carried with it the obligation of paying the legal rate of interest on that amount. Idaho case law should have taught the trial judge that “where the forfeiture or damage fixed by the contract is arbitrary and bears no reasonable relation to the anticipated damage, and is exorbitant and unconscionable, it is regarded as a ‘penalty,’ and the contractual provision therefore is void and unenforceable.” Graves, supra, at 456, 272 P.2d at 1023.
If there has ever been a more obvious exorbitant and unconscionable penalty inflicted by a court for failure to comply with a more obviously arbitrary forfeiture or damage provision of a contract, I have never heard of it. Nor have I ever heard of a district judge who has ever done so in plain disregard of and disbelief in principles of established jurisprudence — in connection with which I submit a passage:
The most intolerable evil, however, under which we have lived for the past twenty-five years, has been the changing and shifting character of our judicial decisions, by which we have been deprived of the inestimable benefit of judicial precedents as a safeguard to our rights of person and property.
While I experience some problem in the contract provisions insofar as the sellers are given the right to forfeit the contract or to stand on the contract and accelerate it to maturity and foreclose it — for uncured default after notice — in that respectable authority holds that acceleration itself is a penalty (an almost self-proving truism as applied to this set of circumstances in the pertinent period and area of economic depression) putting that aside, and recognizing that material breach of contract for failure to make required monthly payments on the purchase price may ordinarily allow the seller to stand on the contract provisions, in no way can the failure of timely tendering of the $50 expense be said to constitute a material breach, thus enabling the seller to call in the entire contract balance, and then foreclose the contract.
The Court’s reversal of the summary judgment, while it does undo the “horrible” injustice1 perpetrated by the trial court, does not satisfy my belief that we should be also reversing the trial court more on the failure to comply with precepts of well-established case law. To which should be added that there also exists here a serious violation of statutory law. The sellers having exercised their option to treat the lien of the title-retaining contract as a mortgage, upon which they then foreclose, there must be compliance with I.C. § 6-108 as well as with I.C. § 11-402, under which latter section the sellers here obtained the foreclosure decree which spelled out that the buyers’ redemption time was limited to six months. There was no compliance with § 6-108, under which for noncompliance *802therewith the court did not have jurisdiction to enter a deficiency judgment.
. This selection of words follows from observing the language of the trial court in entering an order denying the buyers’ motion for stay of execution pending appeal: "that it would be unfair to Plaintiffs to enter the stay of execution; that it would work a horrible prejudice to Plaintiffs; that there is no sound appealable issue in this case; and, that a stay of execution would not be appropriate." R., Vol. 2, p. 146.