McCandless v. Schick

• Decision Date: 19 April 1963
• Docket Number: No. 9088,9088
• Citation: 85 Idaho 509,380 P.2d 893
• Parties: B. W. McCANDLESS and Ima Mae McCandless, Plaintiffs-Respondents, v. Herman SCHICK and Vera V. Schick, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 893

380 P.2d 893

85 Idaho 509

B. W. McCANDLESS and Ima Mae McCandless, Plaintiffs-Respondents, v. Herman SCHICK and Vera V. Schick, Defendants-Appellants.

No. 9088.

Supreme Court of Idaho.

April 19, 1963.

Rayborn, Rayborn, Rayborn & Webb, Twin Falls, for appellants.

Hepworth & Nungester, Buhl, for respondents.

McFADDEN, Justice.

Respondents, B. W. McCandless and wife, as purchasers instituted this action against appellant Schick and wife, as sellers, specifically to enforce an alleged agreement of sale of real property or in lieu thereof for damages.

In May, 1960, the Schicks listed with one Ralph Assendrup, a licensed real estate broker, their 61 acre farm property for sale at the price of $42,500.00. Assendrup contacted the McCandless's, who on June 14, 1960, made an offer to purchase the property for $34,000.00. This offer prepared by Assendrup was contained in a printed form of 'Receipt and Agreement to Purchase', with various blanks filled in. Respondents offered to purchase the described property for the sum of $34,000.00 payable as follows: $1,000.00 upon signing (which payment was made at the time the McCandlesses executed it); $4,000.00 at the date of closing; and, 'Assume 1st Mortgage to John Hancock in the amount of ($12,000.00) Twelve Thousand Dollars. Balance of Seventeen Thousand Dollars ($17,000) on Contract, payable at one-third (1/3) gross crop per year. Said payment due May 1st of each year, first payment due May 1, 1961. Purchaser has privilege of making accelerated payments.' Before the offer was actually signed the following was added: 'Said contract payments to include interest at the rate of 5 1/2% per annum.' By its terms the sellers had four days to approve the sale.

Assendrup submitted this offer of the Schicks who examined it and refused to accept the offer. A few days later, within the four day period, Assendrup again consulted the Schicks and discussed with them the result of his seeking better offers. The Schicks again refused to accept the offer as then submitted, but there was added to the back of the instrument setting out respondents' offer the following:

'Seller agrees to this sale. Providing: he the seller receives all of 1960 crops, and first payment on contract from Purchaser be changed to May 1st, 1962. Possession date to be December 1, 1960. Seller to pay all 1960 crop expenses and taxes.'

In the presence of Assendrup, the Schicks then subscribed their names as sellers following the last addition. The same day Mr. and Mrs. McCandless likewise subscribed their names as purchasers and Assendrup acknowledged all signatures.

In July, 1960, the Schicks wrote Assendrup to the effect that they withdrew his authority for sale of the property, and they canceled the listing. In August they executed a three year Farm Lease with the brother of Mr. Schick, and in September this action was commenced.

Respondents moved the court for a preliminary injunction, which after hearing, was granted, giving the respondents possession of the property on March 1, 1961. By stipulation the evidence submitted at the hearing for preliminary injunction was with other evidence submitted and considered by the court on the hearing of the principal action. The trial court adopted the findings of fact and conclusions of law entered at the time of issuance of the preliminary injunction, and entered a decree for respondents, ordering appellants to specifically perform the contract and fixing the amount recoverable as damages. Appellants appealed from this decree.

By their specifications of error appellants challenge Findings of Fact Nos. 6 and 10, asserting they are not supported by the evidence. Finding No. 6 reads:

'After discussing the terms of McCandless' counter offer with him, Assendrup returned to his office and typed out a 'Receipt and Agreement to Purchase' which provided for a total payment of $34,000.00 to be paid as follows:

$1,000.00 deposited as earnest money

$4,000.00 cash at the time of closing the deal

$12,000.00 by assuming the existing mortgage

'Balance bearing 5 1/2% interest to be paid by 1/3 of the gross crop grown on the land each year until paid, the first of such payments to be due and payable May 1, 1961.'

Finding No. 10 reads:

'On June 17, 1960, Assendrup again contacted the defendants and advised them he had been unable to get a better offer from McCandless or from anyone else. Thereupon Mr. and Mrs. Schick agreed to accept the sale price offered provided tht they receive all of the 1960 crops, the first crop share payment be changed to May 1, 1962, possession not be delivered until December 1, 1960, and the sellers pay all 1960 taxes and expenses. These changes were written in longhand on the back of the receipt and agreement to purchase and were signed by Herman Schick and Vera V. Schick.'

Suffice it to say that the record amply sustains these two findings by the court. The initial offer by McCandless provided for the balance 'Payable at one-third (1/3) gross crop per year'; the court's finding made this applicable to the 'gross crops grown on the land.' This difference is immaterial, for the parties themselves could reasonably only have intended that the crops would be the crops raised on the premises involved, and there was no evidence of any other intention.

Appellants by other assignments of error attack the court's conclusions of law to the effect that there was a binding bilateral executory contract between the parties, sufficiently definite and certain to be specifically enforced, and that the respondents were entitled to possession of the property.

This court has had before it numerous cases involving the question as to whether a particular contract, option or lease is definite and certain enough to be enforced, and it has been repeatedly held that specific performance will not be granted of an agreement which is incomplete or indefinite in any of its material terms. Nolan v. Grim, 67 Idaho 138, 173 P.2d 74; Hancock v. Elkington, 67 Idaho 542, 186 P.2d 494; Anderson v. Whipple, 71 Idaho 112, 227 P.2d 351; Locklear v. Tucker, 69 Idaho 84, 203 P.2d 380; Crouch v. Bischoff, 76 Idaho 216, 280 P.2d 419.

In the instant agreement we have certainty and definiteness in regard to the following matters: the parties, the property, the total price, the amount of the initial payments, the amount of the mortgage being assumed, the balance to be paid by deferred payments, the interest rate on the deferred payments, and the time for making of the deferred payments, the possession date, a provision regarding taxes.

Appellants contend, however, that the provision dealing with the deferred balance 'Payable at One-Third (1/3) gross crop per year' is so indefinite and uncertain as to make this agreement unenforceable. It is their contention that the term 'gross crop per year' is indefinite in that there is no customary meaning as to that term, that there is no agreement that the respondents would plant any crops, that there is no agreement as to what crops would be grown on the land, or whether the crops are to be delivered in kind, or by cash or the valuation date of the crops.

In answer to this contention it must be borne in mind that all parties agree that this property was farming property; that both parties to the agreement were familiar with farming practices. That in appellants' exhibit '2', being the lease agreement with Mr. Schick's brother, Mr. Schick was agreeable to a rent based on 'One-half of any and all crops of every kind and nature grown on the premises during the term of this lease.' Annually the amount due would be determined by the value of the crops raised the preceding crop season. The additional provision required by the Schicks to be written on McCandless' offer to the effect that the Schicks were to get the 1960 crops, possession to be Dec. 1, 1960, and the first payment date changed to May 1, 1962, was in conformity with farming practices, the annual payment to come from the crops raised the preceding season. It cannot be assumed that a purchaser of farming property would allow his premises to remain idle, and the testimony of McCandless discounts any basis for such assumption.

In their affirmative defenses, appellants alleged that the amount of the periodic payments is not fixed by the contract with sufficient clarity to permit specific performance thereof. No evidence was submitted by appellants that one-third of the gross crop would be insufficient to liquidate the deferred balance within a reasonable number of years. The appellants agreed to this provision by their endorsement on the...