dissenting.
The record establishes that Webster, whose home was severely damaged by the flood, while not unintelligent was inexperienced in construction matters. A myriad *322of documents were tendered to and executed by Webster. That documentation began stating the cost of the restoration of Webster’s home at some $44,000.00. A second document was executed stating the contract price as approximately $21,000.00. Thereafter additional documents were executed either raising or lowering the cost of repairs to be performed by Bell-Hi. At the completion of the work, Webster executed a completion certificate which refers to still another contract document which was not shown to be in existence. No matter how one may attempt to recapitulate the so-called contract documents, they do not total the sum of $26,720.00 demanded by Bell-Hi in a letter to Webster, nor do they total the sum of $30,728.00 which Bell-Hi demanded from Webster’s attorney, ñor $31,705.00 demanded by Bell-Hi in its request for arbitration, nor $30,805.00 demanded in Bell-Hi’s complaint in the instant action, nor with Bell-Hi’s demand as verbalized at trial in the sum of $32,215.00.
An extensive bench trial was held, during which substantial evidence was presented regarding the value of the work performed by Bell-Hi. Following trial the court issued its decision holding that, “It is clear that various contract documents were executed by the parties. However it is not clear what the parties actually agreed upon.” The court further held, “The defendant recognized that she owed the plaintiff money but she was not certain of the amount that she owed. The court cannot find that the defendant defended the action of the plaintiff frivolously, unreasonably or without foundation.” Therefore, the court entered judgment for the plaintiff in the sum of $26,069.00 but later reduced the amount of that judgment by $2,430.00 representing work that had been done by a third party but for which Bell-Hi had not paid the third party.
Thereafter Webster took this appeal contending that she owed no more than the sum' of $25,120.00 which amount was promptly deposited by Webster into court. Since Bell-Hi’s attorneys had not been paid by Bell-Hi they promptly filed a claim of lien against said sum deposited in court.
In my view the record adequately supports the decision of the trial court that there was no valid written contract existing between the parties since there was no meeting of the minds. This Court has consistently adhered to the proposition that “in order to constitute a contract, there must be a distinct understanding common to both parties. The minds of the parties must meet as to all of its terms, and, if any portion of the proposed terms is unsettled and unprovided for, there is no contract. Brothers v. Arave, 67 Idaho 171, 174 P.2d 202 (1946) (quoting Phelps v. Good, 15 Idaho 76, 96 P. 216 [1908]).
This Court, solely on the basis of the written documents, substitutes its finding of fact for that of the trial court who saw the witnesses and heard the testimony, and thereafter found the non-existence of the contract. I would affirm that decision of the trial court. Likewise would I affirm the decision of the trial court that since there was no written contract there could be no award of attorney fees since the action was not defended frivolously or unreasonably.
I would also affirm the decision of the trial court in entering judgment for Bell-Hi on the basis of quantum meruit, however, reverse the decision of the trial court wherein it awarded prejudgment interest to Bell-Hi. In my view the claim of Bell-Hi was not based on an open account, but rather constituted a single transaction between Bell-Hi and Webster. See Governor-Department of Industrial Development v. Dalton, 560 P.2d 971 (Okla.1977); Heron v. Gaylor, 46 N.M. 230, 126 P.2d 295 (1942). Further, I would hold that the claim of Bell-Hi was unliquidated since obviously the parties never agreed on the value of the repairs nor was the amount due susceptible of ascertainment by computation. At trial the testimony of the value of Bell-Hi’s work ranged from $10,000.00 to $32,000.00.
In my view the majority has egregiously invaded the province of the trial judge and has in effect entered a judgment in excess *323of $45,000.00 and further exacerbated the situation by awarding attorney fees which Bell-Hi’s erstwhile attorneys have certified as being in excess of $20,000.00.
In sum, I would affirm the trial court on the issue of the existence of a written contract, affirm the trial court on its quantum meruit award, affirm the trial court on its denial of attorney fees, but reverse the trial court on its award of prejudgment interest.