Cypert v. Holmes

UDALL, Justice

(dissenting).

It is my firm conviction that the offer set forth in. defendant’s letter, supra, coupled with plaintiff’s acceptance thereof shows it to be a valid contract. In essence the letter —which must be construed most strongly against its author — is an offer backed with earnest money either to buy the land in question outright or to lease it for three years with an option to buy, payable on or before a date certain. The lease term— three years — is certain, as is the date on or before which the term is to commence, namely July 16, 1954.

The majority, in effect, have declared this offer and acceptance to be no more than “an agreement to make an agreement” which this court held to be insufficient to bind the parties in Peer v. Hughes, supra. A comparison of the two documents relied upon, there and here, will readily disclose a vast distinction.

The offer, as I read it, sufficiently described the premises; a definite and agreed term was fixed; and a sufficiently definite and agreed price of rental and terms of option to purchase were specified. This, even according to the authorities cited in the majority opinion, is all that is necessary to create a binding contract. See, also, Schlageter Estate Co. v. Koontz, 97 Cal. App. 814, 218 P.2d 814. Where, as here, the parties have agreed in writing upon the essential terms of the lease, there is a binding lease, even though a formal written instrument is to be prepared and signed later. Gavina v. Smith, 25 Cal.2d 501, 154 P.2d 681. The usual and ordinary covenants and provisions will be implied by the courts. Reno Club v. Young Inv. Co., 64 Nev. 312, 182 P.2d 1011, 1020, 173 A.L.R. 1145.

Inasmuch as the basic essentials were included within defendant’s letter any ambiguities in wording might have been cleared up by parol testimony on the trial of the case. It is interesting to note that none of the cases cited in the majority opinion were disposed of by demurrer or a motion to dismiss — all were tried on the merits. It is my view that the complaint set forth a proper claim for relief, hence it was error for the trial court to grant the motion to dismiss and I would reverse the judgment entered with directions to grant a trial on the merits.

PHELPS, J., concurs.