No. 86-183
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986
EDGAR NEIL WEIGAND, and
TOMMY EILEEN WEIGAND,
Plaintiffs and Appellants,
MONTANA LAND AND REAL ESTATE
INVESTMENTS, INC.,
Defendants and Respondents.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Patrick F. Flaherty, Great Falls, Montana
For Respondents:
K. Dale Schwanke; Jardine, Stephenson, Blewett and
Weaver, Great Falls, Montana
Submitted on Briefs: July 17, 1986
Decided: September 8, 1986
Filed :
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
Edgar Neil Weigand and Tommy Eileen Weigand (Weigands)
appeal the February 6, 1986, order of the Seventeenth
Judicial District Court dismissing the complaint they had
filed against Montana Land and Real Estate Investments, Inc.
(Montana Land). We affirm the dismissal of the complaint.
Weigands, with the help of a real estate agent employed
by Montana Land, offered to purchase the David Jenkins home
in Chinook, Montana. Weigands signed an Earnest Money
Receipt and Agreement to Sell and Purchase. The earnest
money provided was $1.00. The Agreement stated that " [i]f
the Seller does not approve this sale within five days of
[June 7, 19851 ... the unexpended earnest money shall be
returned to the Purchaser on demand and all rights of
Purchaser terminated . . . ." The sellers never signed the
Agreement. The earnest money was returned on July 11, 1985,
after sellers had acquired another prospective buyer.
Weigands filed a complaint against Montana Land alleging
breach of contract, bad faith and negligent
misrepresentation. Montana Land sought to have the complaint
dismissed for failure to state a claim upon which relief
could be granted. Thereafter, Weigands filed a motion to
amend the complaint. The amended complaint would have named
as additional defendants, David and Eileen Jenkins, owners of
the David Jenkins home. The allegations in the amended
complaint remained the same as those in the original.
Following the filing of numerous briefs and the hearing
of oral argument via a telephone conference call, the trial
judge found that the sellers (Jenkins) had never accepted
Weigands' offer to purchase. Therefore, no contract existed.
Weigands' motion to amend was denied. Montana Land's motion
to dismiss was granted.
On appeal, Weigands raise the following issues:
1. Is the Earnest Money Receipt and Agreement to Sell
and Purchase a legally enforceable contract?
2. Do Weigands have a cause of action against Montana
Land for breach of the implied covenant of good faith and
fair dealing?
3. Do Weigands have a cause of action against Montana
Land for the tort of negligent misrepresentation?
The Earnest Money Receipt and Agreement to Sell and
Purchase is not a legally enforceable contract because
sellers failed to sign it. Section 28-2-102, MCA, states:
Essential elements of a contract. It is essential
to the existence of a contract that there be:
(1) identifiable parties capable of contracting;
(2) their consent;
( 3 ) a lawful object; and
(4) a sufficient cause or consideration.
Consent of all the parties is lacking. Had sellers consented
to the Agreement, they needed only to sign it. They did not.
There is nothing in the record to show they consented to the
Agreement.
The record is devoid of any evidence that Weigands'
offer reflected the price at which sellers had listed their
property. There is no evidence that Weigands' offer was in
fact an acceptance of an offer to sell the property for a
certain price. The Agreement was merely an offer by Weigands
to purchase the David Jenkins home for $45,000. The offer
was never accepted by the sellers. There was no contract.
Weigands contend Montana Land breached a covenant to act
fairly and in good faith. There is no evidence that Montana
Land engaged in conduct which could give rise to the action.
The duty owed Weigands by Montana Land was to present
Weigands ' offer to sellers. The complaint contains no
allegation that the duty was not performed. There simply is
no factual basis in this record to support appellants' claim.
Finally, negligent misrepresentation requires the
supplying of false information for the guidance of others in
their business transactions. State Bank of Townsend v.
Maryann's, Inc. (Mont. 1983), 664 P.2d 295, 40 St.Rep. 637.
Again, the complaint contains no specific allegation that
Montana Land provided Weigands false information with respect
to their offer. The complaint merely alleges, in very broad
terms, that negligent misrepresentation occurred. This is
insufficient. Rule 8 (a), M.R.Civ.P. Rambur v. Diehl Lumber
Co. (1963), 142 Mont. 175, 382 P.2d 552.
The Earnest Money Receipt and Agreement to Sell and
Purchase is an offer to purchase certain property. The offer
was not accepted. To find the offer to be a contract would
be contrary to black-letter contract law and would wreck
havoc on the real estate business. The complaint contains no
specific factual allegations of breach of the covenant to act
fairly and in good faith or of negligent misrepresentation by
Montana Land's employee. The order dismissing the complaint
is affirmed.
We concur:
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