Dolge v. Masek, 3760

• Decision Date: 24 March 1954
• Docket Number: No. 3760,3760
• Citation: 268 P.2d 919,70 Nev. 314
• Parties: DOLGE v. MASEK et al.
• Court: Nevada Supreme Court

Page 919

268 P.2d 919

70 Nev. 314

DOLGE v. MASEK et al.

No. 3760.

Supreme Court of Nevada.

March 24, 1954.

Rehearing Denied May 5, 1954.

Morse & Graves, Las Vegas, for appellant.

Hawkins & Cannon, Las Vegas, for respondents.

MERRILL, Justice.

This is a suit for specific performance of an oral agreement. The question involved upon this appeal is whether the oral proceedings of the parties actually culminated in a final agreement or whether assent was withheld until such time as the agreement might be reduced to writing and signed. The trial court found that an enforceable oral agreement had been reached and rendered a decree of specific performance of the terms thereof against the defendant below, who has taken this appeal.

In January, 1949, Jerry G. Masek died, leaving surviving him his widow, Irma Masek, (now Irma Masek Dolge), the appellant herein and two children: Evelyn Youngman and Jerry E. Masek, respondents herein. Decedent had left as last will and testament an instrument purporting to be a holograph. Appellant offered the will for probate and was met by a contest filed by respondents who claimed undue influence on the part of appellant and that the instrument in truth was not a holograph and did not possess the formal requisites of a will.

Thereupon negotiations commenced for settlement of the dispute. These negotiations disclosed that the major questions involved were as to the extent of the estate which the widow might claim to pass under the terms of the will. Respondents had been interested with decedent in certain businesses. Decedent's interests in these, they claimed, passed direct to them pursuant to partnership agreement.

In the course of their negotiations the parties in November, 1949, conferred in the office of respondents' attorney who then prepared in writing a form of settlement agreement. This was submitted to appellant early in 1950 and, after consideration, was rejected by her as unsatisfactory. A further conference was held and a second draft of agreement was prepared by appellant's attorney. This draft, after consideration, was also rejected by appellant. On June 13, 1950, a third conference was held in an attempt to eliminate the remaining areas of difference. All parties were present together with their attorneys. The second draft was used as a basis for discussion. Each paragraph was read. Changes to be made were noted in the margin. When the entire draft had thus been covered, each party was interrogated by respondents' attorney and each expressed approval of the terms of the settlement. Respondent Masek pressed the point further. He testified that he stated, 'If the agreement wasn't agreeable let's don't go to the trouble and expense of drawing up another agreement if we are not in accord. Let's settle it while we are here together.' He testified that appellant answered, 'Son, I am satisfied.'

It was understood that the settlement was to be reduced to writing by appellant's attorney. This was done. The result was an 18-page document of considerable complexity providing in detail for a division of the estate of decedent in lieu of the division provided by will, and, as expressed by recital, resolving five other disputes between the parties 'in addition to the issues joined in the aforesaid will contest.' The document was submitted to respondents and in due course was signed by them. It was never signed by appellant. She does not dispute the fact that the writing reflects the understanding of the parties as reached at their June 13, 1950, conference. Her refusal to sign was for the reason that upon further consideration she had concluded that the settlement was not fair. She wanted more. She communicated her views in this respect to respondents in October, 1950. They flatly rejected her proposition and subsequently commenced this action.

Following the conference of June 13, 1950, and before signing the written document based thereon, was appellant free to change her mind? She testified that in her view the agreement was a 'tentative' one. The attorney who represented her during the negotiations testified, 'It was my understanding that the agreement would not become effective until signed by all parties and approved by their attorneys.'

Appellant refers us to the following language of this court in Morrill v. Tehama Consolidated Mill & Mining Co., 10 Nev. 125, 133: 'It is true the parties verbally agreed to the terms of the contract as stated in the complaint, but it was to be reduced to writing and signed by both parties. * * * It is essential to the existence of every contract, that there should be a reciprocal assent to a definite proposition, and when the parties to a proposed contract have themselves fixed the manner in which their assent is to be manifested, an assent thereto, in any other or different mode, will not be presumed.'

Respondents refer us to the following language of this court in Micheletti v. Fugitt, 61 Nev. 478, 489, 134 P.2d 99, 104, 'Where a complete contract was made orally, the fact that it was expected that a written contract would afterwards be signed, embodying the terms of the oral contract, does not prevent the oral contract from taking effect.' See also: annotations 122 A.L.R. 1217, 165 A.L.R. 756.

The significance of this language in the light of the earlier expression in the Morrill case would appear to be that the mere expectation that a written document is to be prepared and executed embodying an oral agreement does not in and of itself necessarily signify that the parties have fixed such execution as the manner in which their assent is to be manifested or that until such execution is had the oral contract shall be without binding force. In Micheletti v. Fugitt we find assent to the oral contract and intent to be bound thereby evidenced by the fact that the assenting party...