(dissenting).
The essential facts in this case are set forth in the majority opinion and it would serve no useful purpose to restate them herein.
Respondents’ theory of the case is that the agreement was an agreement to make a lease in the future and was not a present demise. Appellants contend that it is a present demise.
But few points of mutual agreement are necessary to create a valid and binding lease; it must be complete and certain as to the parties, the description of the property, the term and the rental payments, and the time and manner of payment. All of these essential terms were set forth in the agreement, none of them left in doubt nor left open for any future negotiation. Mor*75gan v. Firestone Tire & Rubber Co., 68 Idaho 506, 201 P.2d 976; Gaskill v. Jacobs, 38 Idaho 795, 225 P. 499; Cappelmann v. Young, 73 Cal.App.2d 49, 165 P.2d 950; Levin v. Saroff, 54 Cal.App. 285, 201 P. 961; Young v. Neill, 190 Or. 161, 220 P. 2d 89, 225 P.2d 66; Gavina v. Smith, 25 Cal.2d 501, 154 P.2d 681; King v. Stanley, 32 Cal.2d 584, 197 P.2d 321.
Even though the commencement of the term was in the future, that fact does not prevent the instrument operating as a present demise. Williams v. Belling, 76 Cal. App. 610, 245 P. 455; 51 C.J.S., Landlord and Tenant, § 215, p. 820.
It is true that in order to render such an instrument a lease as distinguished from an agreement or contract to lease it should contain words which import a present demise; however no particular words are necessary to so effectuate the instrument as a present demise. The terms “agreement to lease”, “agree to let”, “agrees to rent” and “would lease and farm let”, and similar phrases have been held to effectuate a present demise; 51 ■ C.J.S., Landlord And Tenant, § 185(c), p. 787, and this is so even though a further writing or memorandum was called for in the document; Ver Steeg v. Becker-Moore Paint Co., 106 Mo.App. 257, 80 S.W. 346; the test apparently applied is that if the agreement in which any such words are used leaves nothing incomplete, it may operate as a present lease and demise.
The instrument and agreement under consideration, while not using any of these particular words, uses words of similar import and futhermore provides specifically for all the material, essential and necessary terms of a valid and existing lease. •
It is largely a question of the intention of the parties as to whether an instrument is a present demise or an agreement to execute a lease in the future; however, where the parties have agreed upon all essential facts there is strong persuasive indication of a binding, contract even though a more formal contract is to be prepared and executed subsequently.
The mere fact that a formal written lease was in contemplation of the parties does not relieve either of them from the responsibility of the agreement which was already set forth in writing and was sufficient in and of itself to constitute an existing lease. In such a situation should one party refuse to execute the lease according to the agreement made, as the appellants did here, the other party has a right to fall back on the written propositions as originally made; the absence of the more formal agreement which was contemplated is not material. Levin v. Saroff, supra, and the cases therein cited.
The parties involved in this litigation, as disclosed by the evidence, acted under the agreement which was reduced to writing and possession of the property was given to and held by the appellants, who did not *76in any respect violate any of the terms, covenants or conditions of the instrument; the respondents herein did not furnish a formal lease to the appellants in accordance with such agreement but, to the contrary, on the. very unusual grounds set forth in the notices served upon the appellants, in effect asked that they vacate the property because of undue and unexpected financial hardships on the part of the respondents and for the further reason that respondents had sold the property;, this constitutes a refusal to execute a formal lease; the appellants did not yield possession of the property after receipt of such notices, but took the position that they could fall back upon the agreement and that it was sufficient; this they could rightfully do even though they might have been initially mistaken as to the legal tenor and effect of the agreement.
The fact that the instrument' provides that the lease shall be drawn in the usual form' common to Twin Falls County and shall also provide “among other things” (certain terms and conditions therein specifically set forth) does not alter the rule that an instrument which contains the names of the parties, the description of the property, the term and the rental payments, and the time and manner of payment, constitutes a lease for the reason that the words “in the usual form common to Twin Falls County, Idaho” and “shall provide among other things”, add nothing; neither is necessary to complete the lease and there is nothing in the instrument to disclose that the parties thereto had any other or further particular matters in mind which had to be agreed upon at some future date before the agreement could become effective. Morgan v. Firestone Tire & Rubber Co., supra; Gaskill v. Jacobs, supra.
If a lease such as the instrument before this court contains, as it does, the necessary and essential elements but is silent with reference to any of the general, usual and ordinary covenants and conditions of such an instrument, they will be implied and specific performance decreed. Morgan v. Firestone Tire & Rubber Co., supra; 49 Am.Jur., Sec. 121, p. 143, and the cases therein cited; Janssen v. Davis, 219 Cal. 783, 29 P.2d 196; Scholtz v. Northwestern Mutual Life Ins. Co., 8 Cir., 100 F. 573.
In the light of the pronouncements hereinabove set forth, the agreement is not ambiguous to the extent that it is necessary to attempt to ascertain the intention of the parties by resort to anything other than the instrument itself. Morgan v. Firestone Tire & Rubber Co., supra; Levin v. Saroff, supra.
That the instrument only should be examined and construed as a whole to ascertain the intent of the parties is manifest. This is aptly set forth in the case of King v. Stanley, supra, 197 P.2d on page 326, in the following language: “The mere state of mind of the parties is not the object of inquiry. The terms of the contract are determinable by an external, not by an in*77ternal standard — or by what termed the objective rather than the subjective test. (Citing cases.) Measured by any reasonable standard there is here mutual assent to a contract which is sufficiently certain so that the court was within its power in decreeing specific performance.” (Citing cases.) has been
While an intent existed to reduce the informal instrument before this court, to a more formal written lease, however the existence of such an intent does not necessarily prevent a binding obligation from arising even though the formal contract contemplated was never executed. Gavina v. Smith, supra; unless it should also appear that the parties further agreed and intended not to be bound until a formal written ■contract containing all the essentials was executed. Patch v. Anderson, 66 Cal.App. 2d 63, 151 P.2d 644. In this case it does not appear from the record that the parties agreed or intended not to be bound until such formal lease was executed, but to the •contrary the agreement constituted a present demise 'even though it was not reduced to a more formal writing at a later date, because none of the essential terms were left to future determination.
The decree of the court below should be reversed and the cause remanded with instructions to make findings of fact, conclusions of law and decree in accordance with this dissenting opinion. Such decree should grant specific performance of the contract in accordance with its specific terms, disregarding the provisions to the effect that such lease “shall be drawn in the usual form common to Twin Falls County” and provide “among other things”.
I am authorized to say that Justice KEE-TON concurs in this dissent. ■