Brothers v. Arave, 7328

• Decision Date: 04 November 1946
• Docket Number: 7328
• Citation: 174 P.2d 202,67 Idaho 171
• Parties: BROTHERS et al. v. ARAVE et al
• Court: Idaho Supreme Court

174 P.2d 202

67 Idaho 171

BROTHERS et al. v. ARAVE et al

No. 7328

Supreme Court of Idaho

November 4, 1946

Appeal from District Court, Ninth District, Bonneville County; C. J Taylor, Judge.

Judgment affirmed.

A. A Merrill, of Idaho Falls, for appellants.

An oral contract for the sale of real estate is recognized by law. Deeds v. Stephens, 10 Idaho 332, at pages 336 to 338, 79 P. 77; Prairie Development Co. v. Leiberg, 15 Idaho 379, at pages 391, 392, 98 P. 616.

"The whole scope of the evidence is to be considered in arriving at what the true intent of the parties really is." Hanson v. Rainbow Mining and Milling Co., 52 Idaho 543, 17 P.2d 335; Wallace Bank & Trust Co. v. First National Bank, 40 Idaho 712, 237 P. 284, 50 A.L.R. 316.

"The trial court should make findings on all material issues." Fairbairn v. Keith, 47 Idaho 507, 276 P. 966; Erickson v. Winegar, 41 Idaho 1, 236 P. 870.

Ralph L. Albaugh, Errol H. Hillman, and John L. Bloem, all of Idaho Falls, for respondents.

There is no binding contract unless the minds of the parties have met and mutually agreed. Phelps v. Good, 15 Idaho 76, 84, 85, 96 P. 216; Sieck v. Hall, 139 Cal.App 279, 34 P.2d 844, 850; Broadview Oil Co. v. Livengood, 156 Kan. 514, 134 P.2d 378, 380.

A contract is made by a meeting of the parties' minds through the medium of offer and acceptance. Phelps v. Good, 15 Idaho 76, 84, 85, 96 P. 216; Hampton v. Lee, 49 Idaho 16, 21, 285 P. 1023; Georgia State Sav. Ass'n v. Elias, 192 Okl. 227, 135 P.2d 36, 39.

In order that offer and acceptance may result in a binding contract, the acceptance must be identical with the terms of the offer. Hoskins v. Michener, 33 Idaho 681, 683, 684, 197 P. 724; Phelps v. Good, 15 Idaho 76, 84, 85, 96 P. 216; Thompson v. Burns, 15 Idaho 572, 598, 99 P. 111.

Givens, Justice. Budge, Holden, and Miller, JJ., and Porter, District Judge, concur.

OPINION

Givens, Justice.

Appellant Ben Brothers and Respondent Orland J. Arave, during November 1945, began negotiations for the sale by respondents to appellants of a lot, community property, and part of a larger tract of land which respondents were buying on the installment plan from the Idaho Falls Investment Company. The price concededly agreed upon was $ 3,000, which with $ 150 would liquidate respondents' indebtedness to the Idaho Falls Investment Company and enable them to give clear title to appellants.

Appellant Ben Brothers first suggested the purchase of "eighty feet frontage." Proposals and counter proposals thereafter varied up to 110 or 125.8 feet "frontage." One hundred ten feet measured east and west at right angles to the north and south lines, actually resulted in a diagonal distance along the adjoining road on the north of 125.8 feet. Such a lot encompassed within its western confines a stone building belonging to respondents. The uncertainty developed because the north line of the lot extends diagonally northwest and southeast; in other words, as appears from the plat and exhibit in the case attached hereto (depicting the amount of land claimed by appellants, title to which was quieted by the trial court in respondents), the south line of the lot is at right angles to the east and west lines, but the north line is diagonal.

[SEE ILLUSTRATION IN ORIGINAL]

The ultimate lack of agreement thus originated in the preliminary stages of the negotiations, and was found by the court to persist throughout the conferences and never to have been clarified.

Negotiations proceeded until November 26 or 27, when the parties met at one Bradbury's office in Idaho Falls, who was to act as scrivener and prepare the deed. In the interim, appellants entered into possession and excavated for a foundation and laid water pipes. At the meeting in Bradbury's office, appellant Ben Brothers gave a check payable to Fred Caldwell, to Bradbury. Fred Caldwell was the owner of the Idaho Falls Investment Company and this check was in turn delivered to Caldwell and with $ 150 paid by respondent Orland J. Arave, was applied upon respondents' purchase price of the larger tract, completing the transaction between respondents and the Idaho Falls Investment Company.

Appellants contend that prior to or at that time, a completed contract was consummated with full performance except delivery of the deed by respondents. Respondents assert there had been merely a series of inconclusive negotiations, offered to return the money paid by appellants, and interest thereon, and the cost of the improvements.

Appellants sued to quiet their title and respondents denied appellants' title and cross-complained to quiet their title. The controversy is thus in effect an action by appellants for specific performance. The court found:

"That on or about the 15th day of November, 1945, the plaintiff, Ben Brothers, commenced negotiations with the defendant, Orland J. Arave, for the purchase of all, or a part, of the property described in paragraph I hereof, the exact amount being in dispute; that at all times since the inception of said negotiations, the aforesaid parties have been in disagreement, and a bona fide dispute has existed between them with respect to the amount of the property to be conveyed, and that the minds of the said parties never have met in that particular,"

and quieted title in respondents, decreeing repayment to appellants of the $ 3,000 paid by them, with interest, reimbursement for their improvements; and that the same should be a lien on the premises.

Appellant's version of the concluding conversation at the meeting in Bradbury's office was:

"Q. And I think you (Brothers) testified on your re-direct that there was some discussion in Mr. Bradbury's office, at the time the check was delivered, with respect to the boundary dispute; did you so testify? * * * A. Yes, there was; we spoke about it; he (respondent) had said some little thing about it, and we was talking about looking at it that way, but he says, 'Well,' he says, 'let's forget it.' and he wrote out his check. And I says, 'Is that all right?' And he says, 'That's all right.' And I took my check and turned it in, and I supposed it was all right. And he said, 'I will bring my wife down and sign the deed.'

"Q. He said, 'Forget it,' notwithstanding that he knew that the east line of his property would cut off about two and a half feet of his house? A. About two feet.

"Q. Notwithstanding that, he said 'We will forget it,' did he? A. He said, 'We'll forget it,' and he wrote out his check, and I presumed that he had forgot it.

"Q. Did you presume by that that you had bought the west (sic) two feet of his house, of the building there? A. I bought the ground; didn't buy the house, didn't figure on it."

Respondent Orland J. Arave thus testified:

"A. On our way up to the office (Bradbury's) I brought the matter up again, and I says, 'How about this boundary dispute?' and he shrugged his shoulders again, and he says, 'We'll fix that up all right.' When we got up into Mr. Bradbury's office he told Mr. Bradbury what he wanted, and after he got through I told him, I says, 'Mr. Bradbury, we are having a dispute over this, we haven't got this little thing settled, yet.' And he says, 'Is that so?' and I says, 'Yes.' He says, 'What's the trouble?' and I mentioned this dispute. And he was going to fix up a deed, and Mr. Brothers says, 'Oh, we'll fix that up all right.' And then Mr. Bradbury asked me if it was all right to go ahead with the deal, and I told him, I said it was, and I would try to thresh it out, and I would let him know."

Appellants contend the court should have determined what the contract was; i. e. the amount of land that was actually being or to be transferred. However, the court cannot make a contract for the parties. People ex rel. Heartburg v. Interstate Engineering & Construction Co., 58 Idaho 457, 75 P.2d 997.

According to respondent Orland J. Arave's testimony, the exact amount of land to be transferred was to be 'threshed out' and he would let the scrivener know. No deed appears to have been prepared -- at least none is in the record. The next day respondent Orland J. Arave notified Bradbury not to go ahead with the preparation of the papers and testified that on the evening of that day, appellant Ben Brothers offered to give him, respondent, a 99-year lease on the land in the western part of the amount claimed by appellants and which contained respondents' building. Respondents refused to accept such a proposition and the deal was off.

This court has announced and consistently adhered to the proposition that:

"In order to constitute a contract, there must be a distinct understanding common...