(dissenting). I respectfully dissent from two aspects of the majority opinion.
First, while I agree that under Woodward v Cadillac Overall Supply Co, 396 Mich 379; 240 NW2d 710 (1976), the forfeiture provision at issue is not illegal, I have some doubts as to whether the opinion of the Court in Woodward remains viable *426today. In Woodward, a 3-2 decision,1 the Supreme Court held that noncompetitive forfeiture provisions such as the one at issue in the case at bar did not violate the statutory prohibition on covenants not to compete, MCLA 445.761; MSA 28.61.1 do not disagree with this holding. However, the majority in Woodward also held that noncompetitive forfeiture provisions did not violate any common-law doctrine, citing Couch v Administrative Committee of the Difco Laboratories Inc Salaried Employees Profít Sharing Trust, 44 Mich App 44; 205 NW2d 24 (1972). The reference to Couch was questionable for that holding; the Court in Couch expressly stated that the issue of a common-law restraint on forfeiture provisions was not before it:
"It has been suggested by some commentators that the touchstone for determining the validity of agreements of this kind, absent a legislative solution, is the reasonableness of the restraint; that the courts should not enforce an unreasonable condition. Couch has not contended that this noncompetition clause should be denied enforcement because it constitutes an unreasonable or unconscionable restraint.” 44 Mich App at 49-50.
Furthermore, the majority in Woodward did not discuss substantial authority holding that unlimited forfeiture provisions are void as unreasonable under common law. See, e.g., Woodward v Cadillac Overall Supply Co, supra (Williams, J., dissenting), Alterman, Trade Regulation in Michigan: Covenants Not to Compete, 23 Wayne L Rev 275 (1977), Note, Forfeiture of Pension Benefits for Violation of Covenants Not to Compete, 61 NW L *427Rev 290 (1966). See, also, Van Hosen v Bankers Trust Co, 200 NW2d 504 (Iowa, 1972), Food Fair Stores, Inc v Greeley, 264 Md 105; 285 A2d 632 (1972), Almers v South Carolina National Bank of Charleston, 265 SC 48; 217 SE2d 135 (1975). I would urge the Supreme Court to reexamine Woodward. The case at bar certainly affords an opportunity to do so.
Second, my reading of the record in this case indicates that the trial court made no finding of fact as to the bad faith of the administrative committee. Rather, the trial court based its decision solely on its own interpretation of the profit sharing plan. It is not the function of this Court to act as a fact finding tribunal in this type of case.
"It is not the function of an appellate court to decide disputed questions of fact in the first instance and then choose between affirmance or reversal by testing its factual conclusion against that which the trial court might have or, if the trial judge’s reasoning at the time of the judgment were identical with that of the appellate court at the time of review, must have reached for it to issue the judgment it did.” Nicpon v Nicpon, 9 Mich App 373, 378; 157 NW2d 464 (1968) (emphasis in original).
See McCarty v Mercury Metalcraft Co, 372 Mich 567; 127 NW2d 340 (1964); GCR 1963, 517.1. I cannot concur in the majority’s independent finding of bad faith; I would remand to the trial court for findings of fact on whether the administrative committee acted in bad faith. See McCarty v Mercury Metal Co, supra, at 577.
The majority opinion was authored by Justice Lindemer and joined by Justices Coleman and Fitzgerald. Justice Williams’ dissent was joined by Chief Justice Kavanagh. Thus, present members of the Court split 2-2 on this issue.