No. 86-183 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

EDGAR NEIL WEIGAND, and TOMMY EILEEN WEIGAND, Plaintiffsand Appellants,

MONTANA LAND AND REAL ESTATE INVESTMENTS, INC., Defendants and Respondents.

APPEAL FROM: DistrictCourt of the Seventeenth JudicialDistrict, In and for the County of Blaine, The Honorable Leonard Langen,Judgepresiding.
COUNSEL OF RECORD:
ForAppellants: 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 earnestmoney was returned on July 11, 1985, after sellershad acquired another prospective buyer. Weigands filed a complaint againstMontana Land alleging breach of contract, bad faith and negligent misrepresentation. Montana Land sought tohave 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 complaintwould have named
as additional defendants,David and Eileen Jenkins, owners of the David Jenkins home. The allegations in the amended complaint remained the sameas 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 topurchase. Therefore,no contract existed.Weigands' motion to amend was denied. Montana Land's motion to dismisswas 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 fairdealing? 3. Do Weigands have a cause of action against Montana Land for the tort of negligentmisrepresentation? 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 therebe:

(1) identifiable parties capable of contracting; (2) their consent; (3) a lawful object; and (4) a sufficientcause or consideration. Consent of all the parties is lacking. Had sellersconsented 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 wasmerely 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 contendMontana Land breached a covenant to act fairly and in good faith. There is no evidence thatMontana Land engaged in conductwhich could give rise to the action. The duty owed Weigands by Montana Land was to presentWeigands

## ' offer to sellers. The complaint contains no allegation that the duty was not performed. There simply is no factualbasis 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 informationwith respect to their offer. The complaintmerely 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), 142Mont. 175, 382 P.2d 552. The Earnest Money Receipt and Agreement to Sell and Purchase is an offer topurchase certainproperty. The offer
was not accepted. To find the offer to be a contractwould be contrary to black-letter contract law and would wreck havoc on the real estatebusiness. The complaint containsno specific factual allegationsofbreach of the covenant to act fairly and in good faith or of negligent misrepresentationby Montana Land's employee. The order dismissing the complaint is affirmed.

We concur:

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