Davco Realty Co. v. Picnic Foods, Inc.

McCown, J.,

concurring in result.

In my opinion the evidence is clear that the easements and what is referred to in the majority opinion as “the paving agreement” were all integral parts of a single agreement. Although they are contained in three separate instruments, there can be no real doubt of their interdependence. Since no subsequent purchasers of the real estate were involved, the failure to reflect the “paving agreement” in the easement, or to record it, was immaterial.

I am also convinced that “the paving agreement” was not sufficiently definite and certain as to be enforceable. A critical factor is that no time was ever specified for performance of the paving work by Picnic Foods, nor was any time specified within which Davco was to construct its addition. Nevertheless, it is virtually indisputable that Davco’s addition was to be built before the paving work was to be done. While the agreement did not require Davco to build, or to build within any particular time, it treated the contemplated addition by Davco as the foundation for Picnic’s obligation to pave. Any other interpretation would be unrealistic.

The District Court specifically found the agreement indefinite and uncertain with respect to the nature of the paving material to be used, the depth and thickness of the paving, the foundation and site preparation work required, and the time in which Picnic Foods was required to perform. That finding and determination was correct and the findings, as well as the judgment, of the District Court should have been approved and affirmed.

Boslaugh, J., joins in this concurrence.