dissenting.
I dissent from the majority opinion reversing the decision of the district judge. I am persuaded that the district judge correctly analyzed the case on appeal from the magistrate. I would affirm the district judge’s decision.
In his opinion, District Judge George Reinhardt stated:
After reviewing the testimony given at trial, this Court simply cannot find sufficient and competent evidence to support the proposition that Ken Smith held the present intent to bind [Silver King] to the purchase of the title insurance policy on February 6, 1984.
The testimony given by Mr. Smith indicates that Silver King, Ltd. was seeking an update on title information with the possibility of purchasing a six million dollar policy in the future----
Inland Title bore the burden of proof, and the testimony given by Mr. Foster and Mr. Smith does not provide sufficient basis upon which to find a contract. [Citations omitted.] [Inland Title] failed to establish the existence of an express oral contract, and it was error for the trial Court to assume the existence of the contract.
Even if this Court were to affirm the trial Court’s finding of a contract to purchase a title insurance policy, the cancellation fee clause would be unenforceable. The cancellation fee clause found in the commitment issued by [Inland Title] would fail primarily due to the provision’s lack of clarity. [Silver King] could not reasonably ascertain their obligation from the document. There is also a lack of proof in the record that the parties ever agreed to the fee.
The notice given to [Silver King] of the cancellation fee was listed in Note 2 of the Commitment. “In the event the transaction fails to close and this commitment is cancelled, a fee will be charged to comply with the state insurance code.”
The law set forth in Giacobbi Square [v. PEK Corporation, 105 Idaho 346, 348, 670 P.2d 51, 53 (1983) ] requires that the contract “contain provisions which are capable in themselves of being reduced to certainty.” The cancellation clause in the commitment sent to [Silver King] is utterly lacking in the potentiality of being reduced to certainty. Rather, it places the onus upon [Silver King] to seek a collateral source of information if any attempt to determine the cancellation fee is warranted.
Chapter 27 of title 41, I.C. Sec. 41-2701, et. al., are the statutory provisions regulating the Title Insurance Industry. However, information in this chapter as to the determination of a title insurance policy cancellation fee is non-existent. It is simply impossible to pursue I.C. Sec. 41-2701, et. al. and determine in this instance that [Silver King’s] cancellation fee would be $6,168.50.
Finally, it should be noted that no insurance ever issued, and hence, the title company assumed no risk as to the state of the title. The title company did a search and charged $6,168.50, which figure was based upon a potential buyer telling a potential seller that he was considering making a $6,000,000 offer. The facts are clear that [Silver King] simply wanted a title search because a potential *705buyer said he wanted to know the state of the title and he might be willing to pay $6,000,000 for the property.
If we were to change the facts somewhat and suppose that the potential buyer told [Silver King] that he was looking at making an offer of $6,000, the title company would have done the same amount of work and would have assumed the same amount of risk. However, the title company in such a case would have charged [Silver King] approximately $100.00.
In my view, Inland Title received no consideration from Silver King and was not bound to insure title. They might have been entitled to recover in quantum meruit, but did not include a claim on that basis. I would affirm the district judge’s decision.
SHEPARD, C.J., concurs.