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Behrens v. Behrens6/22/2005
up to 30 days on account of title, environmental, survey, or appraisal matters and receipt of government approvals." The actual closing took place on July 24, 1997, after the scheduled closing and after the stated expiration date, but within the time permitted for extensions.
[ .] Behrens argue that because closing took place after the initial expiration date, the Initial Agreement had expired, and therefore, Wedmore was free to obtain better terms of financing. Behrens raise a number of factual and legal points in support of this argument. Behrens contend that factually, "Wedmore's conduct in negotiating major changes . . . after July 15 belies his recent claim" that the Initial Agreement did not expire. They also point out that as late as September 1997, Wedmore had argued to Loewen that the Initial Agreement had expired. Behrens also finally contend that they "never authorized Wedmore to extend" the Initial Agreement. Behrens ultimately argue the legal point that "if the ensuing negotiations significantly altered the original agreement, the original agreement was not a 'final and complete' contract."
[ .] Wedmore concedes that closing occurred after the expiration date, but he points out that regardless of Behrens' current contentions, they had always indicated that they had negotiated a binding contract. Wedmore further contends that Behrens never indicated that they did not want to close the Initial Agreement, and the parties never extinguished (see SDCL 53-11-1) or rescinded (see SDCL 53-11-2) the Initial Agreement.
[ .] These arguments (and the record) demonstrate the existence of disputed issues of material fact concerning the expiration or extension of the Initial Agreement. While Behrens have identified evidence of negotiations and term changes after the expiration date that could suggest that the Initial Agreement may have expired, Wedmore has identified evidence that an extended closing date was legally authorized and factually agreed to by Behrens. In light of this dispute of fact, the trial court correctly denied summary judgment and instructed the jury on contract formation. Those instructions specifically included directions on the requisites of binding initial agreements, and the fact that ensuing negotiations may be evidence of the absence of a binding agreement. (See Instructions 48d and 48e at n3, supra).
b. Intent and Conduct of the Parties
[ .] Behrens argue that because the Initial Agreement states "that it was drafted in 'contemplation' of a future transaction between the parties," it was only intended to be a "springboard" or "starting point" for a completed transaction. They further argue that the subsequent negotiations were "strong evidence" that the initial agreement was not "a final and complete contract." Behrens specifically assert that "the buyer changed, the terms changed, the contract, note and mortgage came to fruition, and the cross default provisions were added."
[ .] Although changes did occur, we observe that the Initial Agreement was very detailed and specific, and it did include a clear offer and acceptance of terms necessary to form a contract. Although the Initial Agreement did "contemplate" a more formal purchase agreement with necessary closing documents, it explicitly stated that it was an "offer for the purchase" of Behrens Mortuary. Moreover, Jon's and Don's signatures indicated that the "OFFER ACCEPTED AND AGREED." We also note that Behrens' current claim that they did not consent or intend to be bound by the Initial Agreement is inconsistent with Don's admission at trial that by signing the Agreement he agreed to its contents.
[ .] Therefore, there was evidence suggesting tha
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