Russo v. Factory Finished Homes, Inc.

602 P.2d 320, 43 Or. App. 103, 1979 Ore. App. LEXIS 3363

• Court: Court of Appeals of Oregon
• Decided: November 5, 1979
• Docket: No. 22612, CA 13393
• Status: Published

Opinion

JOSEPH, P.J.

In this suit for specific performance of an earnest noney agreement for the sale of real property, plain-iffs appeal from a decree denying the requested relief. Plaintiffs assign as error the finding by the court that he contract was insufficient and uncertain as to essential provisions.

In July or August, 1977, plaintiffs entered into Legotiations with defendant corporation for the sale of ive acres of real property located near Bend. On august 11, 1977, plaintiffs and the president of the orporation signed an earnest money receipt that pro-ided for a purchase price of $34,000, with $1,000 arnest money, the balance to be payable in "monthly ayments starting October 3, 1977, at ($250) two hun-red fifty dollars payable each month till completed nd paid in full.” The tax lot and interest rate were esignated. The president of the corporation died be-ire the plaintiffs tendered a draft contract of sale, 'he corporation, acting through its secretary, decided ot to proceed with the transaction. Plaintiffs then rought the present lawsuit to compel specific per-irmance of the earnest money agreement.¹

I At trial plaintiffs testified that they thought the own payment was to be $15,000. The wife of the eceased president of defendant who was the secretary f the corporation, testified that she was unaware of n agreement for a down payment for $15,000. Neither party maintained that no down payment was con-;mplated. The trial judge found that at the time of íe signing of the earnest money receipt the parties ad left open for further negotiation essential terms, g., the down payment, the handling of interest and íe right of prepayment.

Under the circumstances and facts in this case, provision for the down payment was a "material term” in the contract. See David M. Scott Construction v. Farrell, 285 Or 563, 572, 592 P2d 551 (1979). Failure to provide in the written instrument for the down payment resulted in a contract which was not "sufficiently definite and certain to justify specific performance.” Southworth v. Oliver, 284 Or 361, 380, 587 P2d 994 (1978).²

Affirmed.

1 The prayer also requested that the defendant be ordered to execute e draft contract, but the issue here is limited to the enforceability of the mest money agreement. We note, as did the trial judge, that there were bstantial differences between the two documents.

2 Because the agreement did not expressly confer upon the purchaser the right to pay the entire purchase price in cash or require the seller to accept such payment (see Scott, supra at 574), we cannot order specific performance for sale on a cash basis to cure uncertainties in the contract, as was done in Phillips v. Johnson, 266 Or 544, 557, 514 P2d 1337 (1973).