Swanson v. Holmquist, 1322--II
| Decision Date | 21 July 1975 |
| Docket Number | No. 1322--II,1322--II |
| Citation | 13 Wn.App. 939,539 P.2d 104 |
| Parties | Allen L. SWANSON and Nancy L. Swanson, husband and wife, Appellants, v. Harvey A. HOLMQUIST and Jeanette R. Holmpquist, husband and wife, Respondents. |
| Court | Washington Court of Appeals |
James M. Healy, Jr. of Healy & Godderis, Tacoma, for appellants.
Alan Rasmussen, Tacoma, for respondents.
This is an appeal from a dismissal in an action for damages resulting from breach of contract. The issue presented by the facts is whether there was the requisite mutual assent to an essential term of the agreement. We hold that mutual assent was lacking. Therefore no enforceable contract was created and the action was properly dismissed.
The subject of this dispute is an earnest money agreement dated October 28, 1972, for the purchase of a house and lot by appellants Allen and Nancy Swanson for $20,050 from respondents Harvey and Jeanette Holmquist, who were to construct the house. The agreement was on a standard form, with many of the provisions being printed and others written in the blanks. The house was to be completed by March 1, 1973, and possession was to take place upon closing. The agreement also provided Purchasers agree to pay the entire purchase price by the proceeds of a VA 100% Mortgage loan for which they agree to make immediate application and pay $300.00 of the closing cost thereof.
The Holmquists and Swansons entered into this agreement through a realtor. Never having met either of the Holmquists, the Swansons signed the agreement in the space provided below item 13, the next to last paragraph of the form. Also printed on the form was item 14, below which the Holmquists later signed in the space provided, apparently not in the presence of the Swansons. Item 14 contained a broker's commission agreement and a statement that the builders 'agree to absorb a mortgage discount to finance this transaction, in an amount not to exceed 2% Of the loan amount.' The percentage figure was blank when the Swansons signed below item 13, and '2%' was filled in by the Holmquists upon signing. The record does not indicate that the Swansons signed in the space provided below item 14 for aknowledgment of receipt of a copy of the agreement. The Swansons did not see the agreement after they signed it until April 8, 1973.
Completion of construction was delayed by adverse weather conditions until approximately May 18, 1973. On April 8, 1973, Holmquist and the Swansons met for the first time, in the presence of the realtor who had arranged the deal. At this meeting, Holmquist stated that due to increased building costs, he could not sell the house for less than $21,500. Swanson expressed his willingness to be fair if Holmquist could document the increases. Also discussed was the mortgage discount, but Swanson, as he testified at trial, paid little attention to the discussion as he understood that it was a cost to be borne by the builder and would not affect him.
There is some dispute as to what occurred subsequently. Holmquist testified that it was his understanding that the Swansons were willing to purchase for $21,000. Swanson testified that he did not agree to an increase in the purchase price. There was also a dispute whether the Swansons had been given the opportunity to select colors for the house, as provided in the contract. The Veterans Administration appraised the house at $23,000, but Holmquist reaffirmed his willingness to sell for $21,500.
In May, 1973, the Swansons withdrew their loan request and brought suit, alleging damages in the amount of the difference between the original purchase price of $20,050 and $26,000, a figure Swanson asserted represented the fair market value. He reached his conclusion by checking into the prices of comparable houses; he obtained no appraisal himself. Damages were also sought for confusion and embarrassment and costs. The Holmquists continued to offer the house to the Swansons through August, 1973, when they took it off the market. It seems that between May and August of 1973 the Swansons resubmitted their loan request but once again withdrew it.
The Holmquists counterclaimed for interest paid on the loan to finance construction. After trial without jury, the trial court entered findings of fact and conclusions of law, in which it found that item 14 was an integral part of the contract, that no breach of the contract had occurred, and that the Swansons had failed to prove any substantial damages. In its oral opinion, the court ruled that the Swansons had not tendered performance under the contract, that is, the purchase price of $20,050 plus the excess of the discount rate over 2 percent, a sum of $601.50. The discount rate at the time was 5 percent. The court also denied the Holmquists' countercliam, a denial from which they do not appeal.
The Swansons contend (1) that they were not...
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...Mutual assent or mutual intention are the modern expressions "for the concept of 'meeting of the minds.' " Swanson v. Holmquist, 13 Wash.App. 939, 942, 539 P.2d 104 (1975) (quoting Wetherbee v. Gary, 62 Wash.2d 123, 381 P.2d 237 (1963)). Ordinarily, the existence of mutual assent is a quest......
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MILLER v. ROBERTSON, 22157-8-II
...mutual assent founded upon "'an objective manifestation of mutual intent on the essential terms of the promise.'" Swanson v. Holmquist, 13 Wn. App. 939, 942, 539 P.2d 104 (1975) (quoting Peoples Mortgage Co. v. Vista View Builders, 6 Wn. App. 744, 747, 496 P.2d 354 (1972)). In a purchase an......
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State v. Nason, 16868-9-III
...has a different understanding of a material term, a basis exists for a court to find no contract was formed. See Swanson v. Holmquist, 13 Wash.App. 939, 943, 539 P.2d 104 (1975). In accordance with this principle, the Restatement (Second) of Contracts, section 20(1) (1979), provides: "There......