Strong v. Hall , 253 Or. 61 ( 1969 )

McALLISTER, J.,

concurring.

I concur in the result, but would base the holding simply upon the failure of the plaintiffs to prove that they ever entered into an agreement with the defendant to purchase the property. An agreement is a manifestation of mutual assent by two or more persons to one another. Restatement, Contracts ^ 8 (1932). The option provided that if it was exercised the parties would enter into a contract of sale. The proof showed that plaintiffs exercised the option, that defendant prepared a contract of sale, that plaintiffs questioned the interest rate and refused to sign, and that the seller refused to rewrite the contract to provide for a lower interest rate. Later the plaintiffs may have changed their minds, but there is no proof that they notified defendant of their willingness to sign the contract as prepared by her. It is no doubt true that the plaintiffs intended to buy the property, if they could, on terms suitable to them, but there is no evidence that the seller intended to sell on the plaintiffs’ terms. “There may be circumstances from which a tacit assent may be inferred, but in every case this assent is a fact which must be proved.” Rohr v. Baker, 13 Or 350, 351, 10 P 627 (1886). In the absence of proof that the parties ever agreed on terms of a contract of sale, the plaintiffs were not entitled to specific performance.