(dissenting).
I am firmly convinced the judgment of the trial court was erroneous and should be reversed. We have a peculiar situation presented by this record in that while the learned trial court gave no indication of the basis for entering judgment in favor of defendants, counsel for the latter predicate practically their whole argument in support thereof upon the proposition that the original offer of $17,000 by Tennent gave Kesicki an irrevocable option to accept same within two days, and gave Leary the same time in which to obtain Kesicki’s acceptance thereof. Appellees’ brief makes crystal clear their position:
“It is the stand of the appellees that anything done within the two days had no effect on Leary’s right to bring about a binding contract, provided only, that he did so within the two day limit.”
The majority saw the fallacy of this argument and flatly rejected such a contention. It properly held “that Kesicki’s counteroffer to Tennent’s offer to purchase his property was in law a rejection of Tennent’s offer”. Nevertheless, the judgment is upheld upon an entirely new theory — not briefed by either party — that Tennent had “assented to their resubmission of his original written offer of purchase to Kesicki”, and that the latter having accepted the same there was a binding contract.
*250While not expressly so labeled it is implicit in the majority opinion that Tennent’s silence, coupled with his conduct, constituted estoppel to deny resuscitation of his original offer to the vendor. The record indubitably shows that Tennent did not expressly sanction such resubmission by word of mouth, and there has never been any claim that a written authorization was given. Defendant Leary was questioned as follows:
“Q. Did he tell you to resubmit it? Answer yes or no. A. No.
“Q. Did he tell Mrs. Cameron to resubmit the offer? Yes or no, in your presence? A. No.”
The saleslady, Mrs. Cameron, was interrogated about this matter also:
“Q. * * * Capt. Tennent ever authorize you to go back to see Mr. Kesicki after you first went there ? A. By not stopping me when he knew that I was going.”
Elsewhere the lady, in seeking to bolster her position, responded: “In real estate a lot of things are done by implication’’— (emphasis supplied). This whole “rope of sand” as to the existence of a binding contract must necessarily rest upon the old maxim “Qui tacet, consentiré videtur”, i. e. “that silence gives consent”. This is a species of evidence to be received with caution. 31 C.J.S., Evidence, § 296. I believe a principle unique in the annals of law is-being enunciated, i. e. that an affirmative offer of a contract to buy realty can be-made by mere silence. It is to be noted that no authority is cited by the majority in support thereof.
These salutary rules are laid down in 12' Am.Jur., Contracts, section 40, “Effect of Silence and Inaction * * * ”:
“It is a general rule of law that silence and inaction do not amount to an acceptance of an offer. * * * An agreement inferred from silence must rest on the principle of estoppel, and a change of position, in reliance on such silence, resulting in substantial injury is an essential element of the estoppel. It is said that circumstances which will impose a contractual obligation by mere silence are exceptional in their character and of rare occurrence; and no legal liability can arise out of the mere silence of the party sought to-be affected, unless he is subject to a duty to reply which is neglected, to the harm of the other party.”
If this be the law applicable to an offeree,, it would seem a fortiori to apply in situations as here, involving the liability of am offeror.
The essential elements of estoppel are-also set forth in the ease of Weaver v. Martori, 69 Ariz. 45, 49, 208 P.2d 652. I submit, first, that Tennent never took a *251■position inconsistent with that asserted now. At all times he claimed that “ * * when I left the office (Leary’s) it was with the idea that everything would stay as it was until he heard from me”, and it was not until the next day when he asked for ■a return of his earnest money check that he was told “ * * * very definitely the deal was on and we had bought a house”. Secondly, assuming that he had been inconsistent, this record does not show that either Leary or Kesicki were led to change their positions for the worse. Cf. Hughes v. John Hancock Mut. Life Ins. Co., 163 Misc. 31, 297 N.Y.S. 116, 120. In absence ■of such a showing this court cannot invoke estoppel, for the facts do not warrant its •application.
It must be remembered that in real estate deals such as this the normal or usual relationship of principal and agent does not •exist between the broker and the purchaser. Actually the broker Leary was a mere intermediary or middleman. See, Woods v. National Surety Co., 27 Ariz. 479, 233 P. 900. Yet, in the instant case, we find him joining with Kesicki to defeat Tennent’s recovery of the $1500 paid as earnest money. The majority, as I see it, are basing their affirmance upon the testimony of Leary and his employees. It seems to me that Leary should not be at liberty to make evidence for himself by the simple expedient of saying something to his opponent (Tennent) and then supporting the truth of his statement by proof that it was not denied. It is also my opinion that even assuming what Leary and his employees say is true, Tennent was under no legal duty to speak. I find in the record where Tennent was asked this direct question:
“Q. Did you hear Mr. Leary tell you or Mrs. Cameron tell you that Mrs. Cameron was going to resubmit the offer? A. No, sir, I didn’t.”
Certainly that is not negative testimony.
It is fundamental that to find a valid binding contract between Tennent and Kesicki there had to be a meeting of the minds; in other words, there must have been a distinct intention common to both offeror and offeree and that without doubt or difference. Such is not our case.
It is for the reasons above stated that I would reverse the judgment. The sharp practice on the part of the broker as shown bv this record should not be rewarded.
LA PRADE, C. J. I agree with this dissent.