No. 86-183 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

EDGAR NEIL WEIGAND, and 

TOMMY EILEEN WEIGAND, 

Plaintiffs and Appellants, 

MONTANA LAND AND REAL ESTATE 

INVESTMENTS, INC., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Seventeenth Judicial District, 

In and for the County of Blaine, 

The Honorable Leonard Langen, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Patrick F. Flaherty, Great Falls, Montana 

For Respondents: 

K. Dale Schwanke; Jardine, Stephenson, Blewett and 

Weaver, Great Falls, Montana 

Submitted on Briefs: July 17, 1986 

Decided: September 8, 1986 

Filed : 
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of 

the Court. 

Edgar Neil Weigand and Tommy Eileen Weigand (Weigands) 

appeal the February 6, 1986, order of the Seventeenth 

Judicial District Court dismissing the complaint they had 

filed against Montana Land and Real Estate Investments, Inc. 

(Montana Land). We affirm the dismissal of the complaint. 

Weigands, with the help of a real estate agent employed 

by Montana Land, offered to purchase the David Jenkins home 

in Chinook, Montana. Weigands signed an Earnest Money 

Receipt and Agreement to Sell and Purchase. The earnest 

money provided was $1.00. The Agreement stated that " [i] f 

the Seller does not approve this sale within five days of 

[June 7, 19851 . . . the unexpended earnest money shall be 

returned to the Purchaser on demand and all rights of 

Purchaser terminated . . . ." The sellers never signed the 

Agreement. The earnest money was returned on July 11, 1985, 

after sellers had acquired another prospective buyer. 

Weigands filed a complaint against Montana Land alleging 

breach of contract, bad faith and negligent 

misrepresentation. Montana Land sought to have the complaint 

dismissed for failure to state a claim upon which relief 

could be granted. Thereafter, Weigands filed a motion to 

amend the complaint. The amended complaint would have named 

as additional defendants, David and Eileen Jenkins, owners of 

the David Jenkins home. The allegations in the amended 

complaint remained the same as those in the original. 

Following the filing of numerous briefs and the hearing 

of oral argument via a telephone conference call, the trial 

judge found that the sellers (Jenkins) had never accepted 

Weigands' offer to purchase. Therefore, no contract existed. 
Weigands' motion to amend was denied. Montana Land's motion 

to dismiss was granted. 

On appeal, Weigands raise the following issues: 

1. Is the Earnest Money Receipt and Agreement to Sell 

and Purchase a legally enforceable contract? 

2. Do Weigands have a cause of action against Montana 

Land for breach of the implied covenant of good faith and 

fair dealing? 

3. Do Weigands have a cause of action against Montana 

Land for the tort of negligent misrepresentation? 

The Earnest Money Receipt and Agreement to Sell and 

Purchase is not a legally enforceable contract because 

sellers failed to sign it. Section 28-2-102, MCA, states: 

Essential elements of a contract. It is essential 

to the existence of a contract that there be: 

(1) identifiable parties capable of contracting; 

(2) their consent; 

(3) a lawful object; and 

(4) a sufficient cause or consideration. 

Consent of all the parties is lacking. Had sellers consented 

to the Agreement, they needed only to sign it. They did not. 

There is nothing in the record to show they consented to the 

Agreement. 

The record is devoid of any evidence that Weigands' 

offer reflected the price at which sellers had listed their 

property. There is no evidence that Weigands' offer was in 

fact an acceptance of an offer to sell the property for a 

certain price. The Agreement was merely an offer by Weigands 

to purchase the David Jenkins home for $45,000. The offer 

was never accepted by the sellers. There was no contract. 

Weigands contend Montana Land breached a covenant to act 

fairly and in good faith. There is no evidence that Montana 

Land engaged in conduct which could give rise to the action. 

The duty owed Weigands by Montana Land was to present 
Weigands ' offer to sellers. The complaint contains no 

allegation that the duty was not performed. There simply is 

no factual basis in this record to support appellants' claim. 

Finally, negligent misrepresentation requires the 

supplying of false information for the guidance of others in 

their business transactions. State Bank of Townsend v. 

Maryann's, Inc. (Mont. 1983), 664 P.2d 295, 40 St.Rep. 637. 

Again, the complaint contains no specific allegation that 

Montana Land provided Weigands false information with respect 

to their offer. The complaint merely alleges, in very broad 

terms, that negligent misrepresentation occurred. This is 

insufficient. Rule 8 (a) , M.R.Civ.P. Rambur v. Diehl Lumber 

Co. (1963), 142 Mont. 175, 382 P.2d 552. 

The Earnest Money Receipt and Agreement to Sell and 

Purchase is an offer to purchase certain property. The offer 

was not accepted. To find the offer to be a contract would 

be contrary to black-letter contract law and would wreck 

havoc on the real estate business. The complaint contains no 

specific factual allegations of breach of the covenant to act 

fairly and in good faith or of negligent misrepresentation by 

Montana Land's employee. The order dismissing the complaint 

is affirmed. 

We concur: / ,/