I am not able to agree with the views of the majority. It seems clear to me, when all of the evidence is considered, that it *Page 171 was the understanding of the parties that no contract of lease was to be accomplished until the written lease was drafted and signed by the plaintiffs as well as the defendant and his wife.
The written contract prepared by Mr. Herrick so indicates, and the receipt given by defendant to Mr. Herrick for the $600 so states. The evidence offered by plaintiffs was to that effect. Defendant did not deny that such was the case but said: "We were supposed to sign the lease first and Mr. Volney and Mr. Christianson had a few more days to sign the lease."
While defendant made the statement that the $600 was to be paid to him by Mr. Herrick as soon as he and his wife signed the contract, regardless of whether the plaintiffs signed it, I think this statement is so completely refuted by the writings, the conduct of the parties and the circumstances in the case as to bring the case within the rule announced in the case of Casey v. Northern P. R. Co., 60 Mont. 56, 198 P. 141, and kindred cases. In this connection it should be noted that the $600 was not in fact paid to defendant when he and his wife signed the lease but was paid about a month later and after plaintiffs had requested Mr. Herrick to hold it because of misrepresentations. It seems unbelievable that plaintiffs would bind themselves by a written contract which had not yet been drafted at the time the $600 was deposited.
Within the rule of the Casey case, I think there is lacking substantial evidence supporting the finding that the $600 was to be surrendered by Mr. Herrick to defendant regardless of whether plaintiffs executed the lease.
I think the cause should be remanded with directions to enter judgment for plaintiff.
Rehearing denied December 31, 1945. *Page 172