398 P.2d 710 | Nev. | 1965
By the Court,
This is an action for specific performance of a written agreement to sell land, brought by the buyer Glenn against the seller Thomsen. Glenn won below, and Thomsen appeals.
Thomsen, a resident of New York, owned unimproved land in Clark County which he wished to sell. He orally listed it for sale with Thurmond, a broker who, in turn, contacted Glenn. Using a printed form furnished with “compliments of Lawyers Title of Las Vegas,” Thurmond and Glenn together prepared an offer to purchase Thomsen’s property for the total price of $26,000, payable $6,000 down and $5,000 annually thereafter, plus interest at 6 percent. An escrow was to be opened with Lawyers Title of Las Vegas and was to close within 60 days. In addition, the broker, at Glenn’s request, wrote on the face of the printed form, “buyer requests 5 acre release clauses.” The printed form also acknowledged receipt of $500, which was to be credited against the $6,000 down payment, if made. Glenn, as the purchaser, and Thurmond, as the broker, each signed the offer to purchase on May 5, 1962. The broker delivered this offer to Thomsen. After striking out the request for a 5-acre release clause, Thomsen signed the document. On May 7, 1962, Glenn opened an escrow with Pioneer Title Insurance Company. On May 8, 1962, Pioneer Title mailed escrow instructions to Thomsen. On May 25, 1962, the title company wrote Thomsen, requesting that he execute and return a copy of the escrow instructions. On June 6, 1962, the company again wrote Thomsen, “May we please hear from you at your earliest convenience
The single contention advanced here is that agreement was never made. The seller’s argument is this: He signed the document only after he had struck the buyer’s request for a release clause. Thus, his signing did not create a contract, for he did not accept that which had been proposed.
We are wholly unpersuaded by the seller’s contention. There is nothing in this record to suggest that the identity of the escrow was significant to either party. It is, of course, true that Lawyers Title was specified in the agreement. Undoubtedly this came about because the agreement was on a printed form prepared by Lawyers Title and furnished “with its compliments” to real estate brokers for use in their daily business. The seller, in giving his testimony at the trial, offered nothing to show that the identity of the escrow was ever intended to be an important item of the contract. Manifestly, it was not.
The seller has suggested one further reason for reversal which, in our opinion, is equally unsound. The seller acknowledged receipt of $500 when he signed the agreement. In fact, the $500 was not paid at that time. The false recital does not deprive the agreement of its legal operation because payment of the $500 was not essential to the creation of a contract, (Restatement, Contracts § 243), nor was it the consideration for the contract before us. The consideration is found in the mutual promises to buy and sell. The $500 provision was for liquidated damages, should the buyer fail to perform. He did perform. In any event, the recital of the receipt of $500 is conclusively presumed to be true (NRS 52.060 (2) )
Affirmed.
We have stated the facts which support the judgment and have not mentioned possible conflicts or explanations which, on appeal, must be resolved in favor of the prevailing party below.
We do not decide whether a contract came into existence when the seller signed the document after striking the buyer’s reguest for a release clause. It is, of course, arguable that the reguest for a release clause was just that — a reguest, and not a condition; that the buyer offered to be bound whether his reguest was honored or rejected, and became bound, as did the seller, when the seller signed the document. Cf. Pravorne v. McLeod, 79 Nev. 341, 383 P.2d 855, holding, inter alia, that an acceptance which reguests a release clause does not invalidate the acceptance. See also 1, Williston on Contracts § 67A, at 193.
NRS 52.060 reads: “Tbe following presumptions, and no others, are deemed conclusive: (1) * * *.
“(2) The truth of the fact recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title, but this rule does not apply to the recital of a consideration.”