specially concurring.
My concurrence in this matter is founded only on: (1) the proposition that the construction or legal effect of a contract must be determined as a matter of law, Goodson v. Smith, 69 Wyo. 439, 243 P.2d 163 (1952), reh. den. 69 Wyo. 439, 244 P.2d 805 (1952); Engle v. First National Bank of Chugwater, Wyo., 590 P.2d 826 (1979); and (2) the controversy in this case requires only a construction of a contract.
Paragraph 11 of the contract provides in pertinent part:
“11. Termination:
******
“c) Within one (1) year after filing of applications pursuant to paragraph 3, the Commission’s consent shall not have been granted to the assignment of license of Station to Buyer.”
There is no disagreement between the parties that such applications were filed; that one year had elapsed since the filing; and that the commission’s consent had not been granted.
The contract term is plain and unambiguous and should be applied. The contract terminated one year after the application was filed inasmuch as the commission’s consent had not been granted. Appellant suggests that other terms of paragraph 11 make an ambiguity. However, such other terms apply to representations or warranties not performed “by the other party” and to denial of the application as distinguished from inaction by the commission.1 Appellant also contends that the omission of a “time is of the essence” provision makes the language of the contract mean something other than what it says. The quoted portion of paragraph 11, supra, is a “time is of the essence” clause. As said in Quinlan v. St. John, 28 Wyo. 91, 100, 201 P. 149, 150 (1921), reh. den. 28 Wyo. 91, 203 P. 1088 (1922):
“ ‘When it is said that time is of the essence, the proper meaning of the phrase is that the performance by one party at the time specified in the contract or within the period specified in the contract is essential in order to enable him to require performance from the other party.’ 2 Williston on Contracts, 1621. ‘Although it seems now to be customary to insert that “time shall be of the essence of the contract” if it is so intended, yet an examination of the cases will show that these words are not essential. Any words that show the intention of the parties to be that time shall be of the essence of the contract, or any clause which provides in unequivocal terms that if the fulfillment is not within a specified time the contract is to be void will have that effect.’ 6 R.C.L. 899. See, also, note in 104 Am.St. Rep. 268 et seq.; 39 Cyc. 1369. * * * ” (Emphasis supplied.)
Appellant further contends that there was an oral agreement to extend the time for approval of the applications by the commission. Paragraph 15(c) of the contract is specific in requiring such waiver to “be in writing.” Courts do not rewrite contracts for the parties, and to not give effect to the contractual provision which requires written waiver would be to rewrite the contract. The same can be said with reference to appellant’s contention that forfeiture results from our holding. We do not favor interpretation of contracts which results in *1020forfeitures, but neither can we rewrite a contract simply because it contains clear forfeiture provisions. In other words, forfeitures are not favored, but forfeiture provisions are not illegal and they will be recognized when required by clear provisions of a contract. Rush v. Kirk, 10th Cir. 1942, 127 F.2d 368; Sanders v. Sanders, 40 Tenn.App. 20, 288 S.W.2d 473 (1955); Branker v. Bowman, 62 Ariz. 214, 156 P.2d 898 (1945); and Engle v. First National Bank of Chugwater, supra.
I agree with the disposition of the discovery issue as set forth in the majority opinion.
. See quotations of paragraph 11 in the majority opinion.