dissenting.
Contrary to the majority, I believe that the issue of punitive damages should have been allowed to go to the jury and that the trial court erred in allowing defendants’ motion for an involuntary nonsuit. My reasons are as follows:
The record establishes that Ponderosa did not have a specifically enforceable contract to purchase the timber it purported to sell to plaintiff Shipler Logging Company. This agreement expressly provided, "This offer also subject to a mutually agreeable contract between the seller and purchaser.”
Bach was actually attempting to renegotiate the agreement at the time of the purported sale to Shipler. Ponderosa was never able to arrive at an agreeable contract with the owners of the subject timber, nor were they ever able to convey the timber. Obviously, the terms of this contract were still open and were subject to mutual agreement at a future time. Thus, it could not in my opinion have been specifically enforced. See Fleck v. Steinbeck, 44 Or App 161, 605 P2d 717 (1980) (and numerous Oregon decisions cited therein), where this court refused specific enforcement of a similar agreement to purchase an apartment complex. Notwithstanding, Ponderosa took Shipler’s $15,000 and converted it to its own purposes.
In Higgins v. Bonnett, 282 Or 725, 580 P2d 180 (1978), the earnest money agreement in issue provided *334for a subsequent complete contract to be drawn and contained all of the terms the majority asserts are necessary to make an agreement specifically enforceof parties, mutual promises, property to be conveyed and terms of payment. Our Supreme Court, however, denied specific performance on the ground that other evidence indicated the parties had not intended the contract to be a final agreement. 282 Or at 728. I disagree with the majority’s conclusion that the signed agreement here was intended to be a final expression of the deal between Ponderosa and the Rickers.
If the agreement involved in the case at bar was not specifically enforceable by Ponderosa, it had nothing concrete to sell to Shipler. The conduct of all the defendants, as shown by this record, presented a jury question on the issue of punitive damages. Mustola v. Toddy, 253 Or 658, 456 P2d 1004 (1969).
For the above reasons, I respectfully dissent.