dissenting.
Because I feel that the majority has both reached an improper result in light of existing Supreme Court precedent and has also misread and improperly overruled Harrington v. Norris B. Strickland & Assoc., 161 Ga. App. 518 (289 SE2d 17), I must respectfully dissent from the holding in Division 1 and the judgment.
First, I disagree with the majority’s construction of Brack v. Brownlee, 246 Ga. 818 (273 SE2d 390), in that I do not believe that Brack is applicable to this case. The precise holding in Brack can be found at p. 819 of that opinion: “It has frequently been held that the purchaser has an implied duty ‘to diligently seek to have (the financing) contingency take place.’ [Cit.]... This implied duty must be exercised in good faith. [Cit.] Therefore, the appellants could not avoid their obligations under the contract. Because of this implied duty a contract for the sale of real property which is conditioned upon the purchaser’s ability to obtain a loan is not unenforceable for lack of mutuality of obligation.” (Emphasis supplied.) Thus, Brack dealt only with a real estate contract contingent upon the purchaser’s “ability to obtain a loan.” While it may be argued that the Supreme Court intended for the holding of Brack on the issue of mutuality to extend to all real estate contract clauses contingent upon the purchasers’ either “procuring” or “ability to procure” financing, this court is not in a position to extend that holding beyond the “ability to obtain” clauses. In F&C Investment Co. v. Jones, 210 Ga. 635, 636-637 (81 SE2d 828), the Supreme Court held: “If, in a contract for the sale of real estate, the initial payment of the purchase money is contingent upon an event which may or may not happen, at the pleasure of the buyer, the contract lacks mutuality. This deficiency as to mutuality is not remedied by a subsequent offer by the seller to perform an act which he was not bound in the contract to perform.” While the reasoning of Brack and F&C Investment Co. may be in conflict, it is extremely important to note that F&C Investment Co. involved a clause contingent upon the purchaser’s actually procuring the loan in question, rather than the purchaser’s “ability to procure” the loan. The court in F&C Investment Co. was careful to note this distinction: “The fact that they were able to secure the loan, or that third parties were willing to make the loan, does not relieve that contract of the deficiency as to mutuality, for the reason that performance of the contingency rests solely upon the act of the *357defendants in procuring the loan, and not upon their ability to procure the loan or the willingness of another, not a party to the contract, to make this loan.” Id., p. 637. The clause in the present case is a “procuring,” rather than an “ability to procure” clause and, therefore, the holding in Division 1 should be controlled by F&C Investment Co. rather than Brack.
While it may be argued that the “procure/ability to procure” dichotomy no longer exists in light of Brack and Tuggle v. Wilson, 248 Ga. 335 (282 SE2d 110), an analysis of the Brack decision fails to support that contention. In Brack, supra, p. 819, the Supreme Court expressly overruled the cases of Potts v. Smith, 134 Ga. App. 737 (215 SE2d 697), and Alodex Corp. v. Brawner, 134 Ga. App. 630 (215 SE2d 527). Both Potts and Alodex involved “ability to procure” contingency clauses. See Potts, supra, p. 737 (“ ‘This contract is contingent and subject to the purchaser being able to refinance....’”); Alodex, supra, p. 630 (“It is hereby understood that the $5,000.00 earnest money described herein will be refunded to Purchaser if suitable financing cannot be arranged. . . .”) The fact that the Supreme Court overruled only these two cases becomes particularly significant in view of the fact that Brack made no mention of F&C Investment Co., Sheldon Simms Co. v. Wilder, 108 Ga. App. 4 (131 SE2d 854), or any other prior decision dealing with a “procuring” clause as opposed to an “ability to procure” clause. Thus, F&C Investment Co. remains established Supreme Court precedent this court is powerless to overrule. “ ‘(I)t is our duty to follow the precedents and the ancient landmarks of the law as declared by the Supreme Court.’ ” Bickford v. Nolen, 142 Ga. App. 256, 262 (235 SE2d 743). Although F&C Investment Co. may be criticized in light of Brack and ultimately may be overruled by the Supreme Court, such an action is the function of that court and is wholly without the province of this court. See, e. g., Voyager Life Ins. Co. v. Estate of Frank G. Bagley, 165 Ga. App. 212, 215 (299 SE2d 118) (Shulman, C. J., concurring specially), reversed sub nom, Block v. Voyager Life Ins. Co., 251 Ga. 162 (303 SE2d 742).
The second error in Division 1 of the majority opinion is, in my opinion, equally important. As can be seen from a reading of Harrington, the contingency clause was based on the purchaser’s “obtaining'financing” and was thus controlled by F&C Investment Co. rather than Brack. However, Harrington differs from any of the previously cited cases in that the clause in that case specifically provided that the sale was contingent upon the purchaser’s obtaining a certain amount of financing “from the Federal Land Bank of Columbia.” Id., p. 518. The facts in Harrington showed without dispute that the purchaser was unable to obtain financing from the *358specified source. Thus, irrespective of the viability of the “procuring/ability to procure” distinction, the holding in Harrington is sound. Certainly, nothing contained in Brack even hints that the parties to a real estate contract may not expressly make the contract contingent upon the purchaser’s obtaining financing from a specified source or that the contract is not rendered unenforceable upon the failure of that specific contingency. The distinction between a clause containing a specified source of financing and a clause containing no specified source of financing is obvious and indisputable, and it is inconceivable that either this court or the Supreme Court should intimate that the failure of a contractually specified source of financing could be remedied by the ability of the purchaser to obtain financing from the seller or some other source. “Where a contract is unambiguous, it must be construed to mean what it says” (Fox v. Southern Glassine Co., 130 Ga. App. 124 (202 SE2d 563)), and it must be enforced accordingly. Consequently, irrespective of any disagreement the majority may have concerning the effect of Brack on certain language in Harrington, it is clearly improper for this court to overrule Harrington.
For the foregoing reasons, I must respectfully dissent from Division 1 and the judgment of the majority opinion.
I am authorized to state that Chief Judge Shulman and Presiding Judge Deen join in this dissent.