Goethals v. DeVos

• Decision Date: 29 August 1977
• Docket Number: No. 3-575A96,3-575A96
• Citation: 174 Ind.App. 143,366 N.E.2d 673
• Parties: Charles J. GOETHALS, Jr., Plaintiff-Appellant, v. Marcel J. DeVOS, Sr., Irma B. DeVos, and Marcel J. DeVos, Jr., d/b/a DeVos Funeral Home, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 673

366 N.E.2d 673

174 Ind.App. 143

Charles J. GOETHALS, Jr., Plaintiff-Appellant, v. Marcel J. DeVOS, Sr., Irma B. DeVos, and Marcel J. DeVos Jr., d/b/a DeVos Funeral Home, Defendants-Appellees.

No. 3-575A96.

Court of Appeals of Indiana, Third District.

Aug. 29, 1977.

Robert L. Stephan, South Bend, for plaintiff-appellant.

Albert L. Doyle, Mishawaka, for defendants-appellees.

HOFFMAN, Judge.

This action was brought by plaintiff-appellant Charles J. Goethals, Jr. (Goethals) for specific performance or, in the alternative, money damages, on an alleged contract between himself and defendants-appellees Marcel J. DeVos, Sr., Irma B. DeVos and Marcel J. DeVos, Jr., d/b/a DeVos Funeral Home (DeVos). The complaint alleges in substance that on April 1, 1974, counsel for DeVos sent a letter to counsel for Goethals offering to sell the general stock-in-trade and real estate of the DeVos Funeral Chapel and that on May 9, 1974, Goethals, through his attorney, sent a written reply accepting all of the terms and conditions of the alleged offer thereby consummating an enforceable contract of sale upon which a prayer for relief should be granted. In response DeVos denying the purported offer moved for summary judgment on grounds that the letter in question was not intended as an offer and was merely an attempt to negotiate. Upon affidavits submitted by the parties the trial court found no material issues of fact and that as a matter of law no contract ever came into existence between the parties. Goethals thereafter perfected this appeal contending that the trial court erred in granting the motion because the correspondence discloses evidence of an offer and an acceptance such as would preclude summary judgment.

Drawn into question therefore is whether the purported offer has all those accouterments which upon acceptance would create a contract. Corbin states that "(w)ith respect to the resulting legal relations * * * (a)n offer is an act on the part of one person whereby he gives to another the legal power of creating the obligation * * * " while "(a)n acceptance is the exercise of the power conferred by the offer." 1 Corbin, Contracts, n. 18, at 24 (1963). In this context if the expression of two parties purporting to be acts of offer and acceptance are materially different in meaning, or if their expressions fail to show agreement on essential terms, and the facts are not such as to create an estoppel against either of the parties there is no mutual assent and hence no contract. Robison v. Fickle (1976), Ind.App., 340 N.E.2d 824 (transfer dismissed); Standard Land Corp. v. Bogardus et al. (1972), 154 Ind.App. 283, 289 N.E.2d 803 (transfer denied).

The purported offer in the case at bar is represented by the following letter dated April 1, 1974, which states in pertinent part:

"Re: Communication of partial terms of sale of funeral chapel and other realty, together with certain personal property including intangibles

"Dear Clarence:

"As you know, I am representing Marcel J. DeVos, Sr., Irma B. DeVos, and Marcel J. DeVos, Jr. in the proposed sale by my clients to Mr. Joseph Goethals, your client, of realty and certain other interests located at the following addresses, viz: 701 S. West St., 509 W. 8th St., and, 701 Kamm Ct., all in Mishawaka, Indiana.

"Confirming my remarks over the phone of a few days ago, my clients would be willing to sell to Mr. Goethals the realty located at the three aforementioned addresses, the stock-in-trade of the DeVos Funeral Chapel, the good will of that business, fixtures, motor vehicles of the business, furnishings of the business and good will, pursuant to a mutually satisfactory land contract agreement, for the sum of $150,000 at 81/2 per cent interest, computed semi- annually and payable over 15 years with $43,000 down.

"Among items not to be confused with or enumerated among the aforementioned listing would be a late model Pontiac 4-door sedan, which is green in color, certain paintings or prints numbering three or four which hang in the funeral chapel portion at the 701 S. West address, together with a certain Hammond spinet organ. I would not be surprised should these exceptions come to include certain other small items of sentimental value, which will come to mind of the sellers as this proposed transaction matures over the next several days.

"The completed agreement will have to include the usual kind of things calculated to protect the seller of a going business in the land contract context, which shall include, though not be limited to the following, viz: Provision for maintenance, retention or replacement of the physical improvements, personalty and good will, matters relating to approval

Partial sale terms, DeVos Funeral Chapel p. 2

by the State Board of Embalmers and Funeral Directors of the proposed transaction, inspections, covenants respecting protection of the reputation of the premises and the good will, assignability, limitations of use, observance by the purchaser of deed restrictions, conditions and covenants, and matters of zoning.

"The usual boiler plate provisions relating to payment schedules, taxes, assessments, insurance, title work, conveyancing and other like matters would also, of course, need to be worked out on a mutually acceptable basis.

"After you have had opportunity to consult with Mr. Goethals, I trust you will advise as to the result and as to your recommendation as to a next step in this matter. Until that time, I remain "

Consideration should be given to whether this communication of April 1 1974, was an act that would lead the offeree reasonably to believe that a power to create a contract was conferred upon him. Williston notes that the intention of the parties is of critical importance in this regard. Thus, even though a showing of intent is ordinarily not necessary to the existence of a written contract it having been merged into the writing, a contrary statement expressing the intention not to be bound until some subsequent event, would be relevant to determining the inception of a contract as distinct from further negotiation. State ex rel. Appleman v. Lake Circuit Court (1952), 231 Ind. 378, 108 N.E.2d...