dissenting.
I agree with the majority as to the scope of review. My disagreement with the majority focuses on one narrow fact issue: whether plaintiffs were able to perform their duties under the earnest money agreement. As I view the record, plaintiffs have shown by a preponderance of the evidence that, but for defendants’ last minute repudiation of the contract, they were able to perform their obligation under the earnest money agreement.
It is necessary for the purpose of my discussion to describe in somewhat greater detail the facts surrounding the alleged repudiation by defendants. When, in January 1994, plaintiffs entered into their first earnest money agreement with defendants for the purchase of the house, they paid $1,000 down, and agreed to pay an additional $14,000 down on the date of closing. Plaintiffs also executed a $14,000 note to defendants, drafted by defendants and entitled, “Agreement for terms on the note the seller is carrying.” By the note’s terms, plaintiffs were to pay defendants $14,000, with a payment of $10,000 due on or before February 24, and the balance paid over a 12-month period beginning April 1, 1994. The note stated that defendants were making a loan to plaintiffs and that the loan was secured by a mortgage on the real property. On March 3, 1994, plaintiffs made a payment of $3,000 on the note.
On April 1, 1994, the scheduled closing date, the parties abandoned the first earnest money agreement. In its place, they executed a second earnest money agreement with essentially the same terms as the first, except that it required a down payment of $28,000 on or before the closing date, July 1, 1994.
Plaintiffs made an additional $7,000 payment on the promissory note on April 30, 1994. On May 1, 1994, plaintiffs moved into the house as tenants. On May 2,1994, *597at defendants’ request, plaintiffs executed a second promissory note with the same terms as the first, except that the amount of the “loan” was stated to be $15,000. The parties appear to agree that the second note was to take the place of the first. By that time, plaintiffs had paid defendants $11,000, including the $1,000 earnest money and $10,000 toward the note. The amount owing on the note was $5,000 on the date plaintiffs last met with the mortgage broker concerning financing. He gave them a breakdown of their projected costs of the loan in the light of an appraisal showing that the house had a value of only $130,000.
The dispute in this case arose over the parties’ conflicting views of the purpose of the note. After their meeting with the mortgage broker, plaintiffs met with defendants to describe the intended financing. In their discussions with the broker, plaintiffs had assumed that the $15,000 note had reduced the balance owing on the purchase price, and the financing had been planned accordingly. Defendants rejected that view, insisting that the note represented a separate and additional obligation for the foster care business. They refused to close the transaction if the note was regarded as a part of the real estate transaction.
Plaintiffs’ evidence at trial supports the finding that the note was intended to represent a loan on a portion of the down payment for the home. Defendants put on testimony intended to show that the note represents a “loan” to plaintiffs of a foster care business that plaintiffs would operate in the home from the date that they moved in as tenants on May 1,1994, until closing on July 1. The note itself makes no mention of its purpose and neither do either of the earnest money agreements. The trial court concluded that the note was intended to reflect the amount of the purchase price that defendants were financing. The trial court’s view is amply supported by the evidence and, on de novo review, I would reach that same conclusion.
The mortgage broker testified at trial that, assuming that plaintiffs had paid defendants $11,000 toward the purchase price of the house and that defendants were willing to carry a second loan of $5,000, plaintiffs would have *598been approved for financing, “[they] would have qualified for the loan.” (Emphasis supplied.) If, as did the trial court and as have I, we accept plaintiffs’ evidence that the purpose of the note was to reflect the amount of the purchase price that defendants had agreed to finance, then plaintiffs satisfied each of the conditions necessary to obtain approval of their loan application. There is no contradictory evidence on that point. The only contention made by defendants concerning plaintiffs’ ability to perform their obligation under the earnest money agreement is that they were “unable” to do so because they had not yet obtained financing; i.e., approval by a lending institution. The majority accepts that rationale despite the fact that the evidence shows that it was defendants’ own repudiation that prevented plaintiffs from completing the financing process. The majority would require plaintiffs to undertake the fruitless effort of pursuing their application for financing, with its inherent significant costs,1 despite their knowledge that defendants had repudiated the agreement and were insisting on additional amounts never agreed to. I think that under the circumstances of this case, where the repudiation arises out of a dispute over the purchase price, the majority places an unfair burden on the party seeking specific performance. I would hold that plaintiffs satisfied their burden to show, by a preponderance of the evidence, that they were able to perform the earnest money agreement under the terms they had agreed to when they provided uncontroverted evidence that, but for defendants’ repudiation by insisting that plaintiffs pay more, they could have obtained financing for the agreed-upon sale price.
The case on which the majority relies, Aurora Aviation v. AAR Western Skyways, 75 Or App 598, 604, 707 P2d 631 (1985), is distinguishable. There, the plaintiff, who was seeking damages for breach of a contract to sell an airplane, had been unable to obtain financing for the full purchase price but anticipated obtaining the funds after resale of the plane to a third party. We said that the plaintiff could not sue for breach of contract because he had not shown that the amount owing on the contract was available to pay the defendant. Here, plaintiffs have shown that, more probably *599than not, but for the repudiation resulting from defendants’ insistence on a higher purchase price, the money necessary to satisfy plaintiffs’ obligation under the contract was available. That is all that is required. Benedict v. Harris, 158 Or 613, 623, 77 P2d 442 (1938); Shucking v. Young, 78 Or 483, 493, 153 P 803 (1915).
I dissent.
Estimated closing and prepaid escrow costs were $5,913.