I concur in the majority opinion wherein it is held that the court did not err in failing to make findings of fact on certain issues complained of. Otherwise, I dissent for the following reasons. *Page 435
Appellants were the owners of the real estate involved in this action. It was community property. Respondents were in possession under a lease and an option to purchase. Oral negotiations, principally between appellant Kyle Altizer and respondent Bud Nelson were carried on but were not reduced to writing. Sec. 16-505, subd. 5, I.C.A., provides:
"In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents.
* * *
"5. An agreement * * * for the sale, of real property, or of an interest therein * * *."
In the instant case, the oral negotiations, as above stated, were not reduced to writing, subscribed and acknowledged by the parties as required by sec. 16-505, supra, which being true evidence of the oral negotiations, in the absence of a written agreement executed and acknowledged were inadmissible and in such circumstances no action could be based thereon. It is conceded in respondents' brief that the oral negotiations or agreements carried on between the parties, or any of them, for the purpose of finally consummating the sale by the Altizers to the Nelsons of the real property is unimportant. Respondents rely only upon the agreement entered into on September 15, 1941, at which time appellants appeared in the office of the Loan Company and executed and acknowledged the deed of conveyance, which deed was delivered by appellants to the Loan Company or its agent Gilbert as escrow holder.
The question therefore arises: Did the execution and delivery of the deed to the escrow holder obviate the necessity of a compliance with sec. 16-505, supra? It will be observed that the deed contained no recital of the terms of the alleged oral agreement but merely a recital of the consideration. No stipulations as to any deductions to be made from the consideration were recited in the deed. However, respondents contend that the delivery of the deed, the placing of the same in escrow by oral agreement, the payment of the purchase price on September 15, 1941, in the office of the Loan Company constituted a fully executed contract of sale. *Page 436
A careful analysis of the evidence discloses neither that the full purchase price recited in the deed nor any part thereof was paid to appellants or received by them at that time. The most that can be said is that the money had been conditionally arranged for. "To constitute payment, the money or consideration must pass for the purpose of extinguishing the debt, and the creditor must receive it for the same purpose." (Buhl Highway District v. Allred, 41 Idaho 54, 73, 238 P. 298.) There being no part performance, the evidence was therefore insufficient to remove the transaction from the statute of frauds. (Robbins v. Porter, 12 Idaho 738, 88 P. 86.) It is further admitted that respondents had no money of their own on deposit with the Loan Company on September 15, 1941, with which to pay the purchase price recited in the deed. The fact is very apparent that the Loan Company agreed conditionally to make the loan of $2500 to respondents provided, and in the event only, that the title to the land was clear and that their mortgage would be a first lien on the real estate. It further appears that September 4, 1941, respondents executed and delivered to the Loan Company their note and mortgage in which the real estate in controversy was described; that the deed from appellants to respondents was not executed and delivered to the escrow holder until September 15, 1941.
Respondents and the Loan Company were at no time bound to carry out their part of the oral agreement and could have refused to have gone through with the deal leaving appellants without recourse. No memorandum or agreement having been signed by the parties to be charged, which would include both appellants and respondents, and the purchase price not having been paid or any part thereof on September 15, 1941, under the rule laid down in Houser v. Hobart, 22 Idaho 735, 127 P. 997, 43 L.R.A. (N.S.) 410, the agreement is void for "want of mutuality." There is no dispute that the Loan Company did not set up on its books, or place to respondents' credit, any money until September 30, 1941, and then conditionally.
"This case clearly shows the necessity of contracts being in writing where they concern real estate, and the legislature of this state, knowing the uncertainty which would attach to titles to real estate if they rested in the memory of man, in parol evidence, has wisely enacted what is known as the statute of frauds under the head of `Indispensable *Page 437 Evidence'." (Thompson v. Burns, 15 Idaho 572, 597, 99 P. 111.)
"To comply with such section, the writing must state the contract with such certainty that its essentials will be known from the memorandum itself or by reference contained in it to some other writing, without recourse to parol evidence." (Syllabus.) (Thompson v. Burns, supra.)
The bar of the statute of frauds in the absence of payment of the purchase price or part performance could not be removed by the execution and delivery of the deed to the escrow holder. (Robbins v. Porter, 12 Idaho 738, 88 P. 86.)
Appellant Kyle Altizer called at the Loan Company's office, several days after September 15, 1941, for his money. Gilbert showed him a preliminary statement enumerating certain sums that the Loan Company proposed to deduce from the $2500 to be loaned to respondents, and the balance which purportedly represented appellants' equity in the land. At that time, appellant Kyle Altizer stated he would not go through with the transaction. Clearly, the minds of the parties had not met, and there was no memorandum or agreement signed by the parties to be charged setting out the details of the oral agreement. As was said in Baas v. Zinke, 218 Mich. 552, 188 N.W. 512, "a mistake of one party of such a character that the minds of the parties cannot be said to have met, if clearly established, is ground for rescission." Under the facts of this case, Kyle Altizer rescinded the contract which he had a right to do. This point is well summarized in the following statement extracted from appellants' brief:
"It is perfectly apparent that the minds of the parties herein have never met upon any definite purchase price. We have, on the one hand, the respondents, claiming that they were buying this property for $2,500.00, being a price $700.00 less than they had agreed to pay for it under the option and lease referred to, and a situation, as contended by them, wherein the appellants would be required to pay the College of Idaho mortgage and all taxes and assessments, and the judgment. On the other hand, we have a situation of the appellant, Kyle Altizer, who had no objection to sale of the property to the respondents, but understood that he was selling it to respondents for $2,500.00 for their equity, less the amount of taxes, and the respondents to assume and pay the College of Idaho mortgage. This creates *Page 438 at once a difference between the parties of over $1,000.00, and it is not within the bounds of good reason, common sense and reasonably sound business judgment to assume that the appellants would, in a short period of months, and while a bona fide lease was still in existence, offer to sell and dispose of their property for a purchase price of $700.00 less than the respondents had theretofore agreed to pay for it * * *."
This is an action in equity, not an action at law. Therefore equitable principles should be applied to the end that justice be done as between the parties. All moneys paid out by the Loan Company purportedly on behalf of appellants have been returned. To reverse the judgment would allow appellants to retain ownership of the premises. Respondents suffered no damage, paid no consideration, did not perform fully or in part, and were in no way damaged or prejudiced. No reciprocal liability ever existed.
The judgment should be reversed and no costs allowed.
Dunlap, J., deeming himself disqualified, did not sit at the hearing or participate in the decision.
On Rehearing (January 25, 1944)