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Behrens v. Behrens6/22/2005
t the Initial Agreement was intended to be a binding contract, with only additional closing documents contemplated. Although there was also other evidence suggesting that the Initial Agreement may not have been intended to be the final binding agreement, that dispute of fact made the existence and terms of a contract a question for the jury. Morrisette, 486 NW2d at 427 (citation omitted). Ultimately, " hether a contract is formed is judged objectively by the conduct of the parties, not by their subjective intents." Geraets v. Halter, 1999 SD 11, , 588 NW2d 231, 234 (citation omitted). Accordingly, the trial court properly instructed the jury on the requisites of a binding contract and on Behrens' factual theory that " nsuing negotiations between the parties may be evidence of an absence of intent that an initial agreement constitutes a final and complete contract." Although the jury did not adopt Behrens' theory, considering the conflicting evidence concerning the parties conduct and intent, we conclude that the trial court did not err in refusing to grant summary judgment on this issue.
c. Essential Terms of a Contract
[ .] Behrens point out that in order for a valid contract to exist there must be mutual consent to the same terms. In other words, the requisite parties must "agree upon the same thing in the same sense." See SDCL 53-3-3. Behrens argue that the mortuary building was the "crown jewel" of the acquisition and that there was no term agreeing to the purchase price for that asset in the Initial Agreement. Absent a purchase price for this asset, Behrens argue that the parties did not come to an agreement on this essential term, and therefore, no binding contract existed.
[ .] Wedmore responds that " he price allocated to the mortuary building had no bearing on the agreed upon purchase price of the entire business--the object of the contract." Wedmore also points out that "the parties all agreed that there was never any question [that] the building was available for sale as indicated in the Initial Agreement." We agree with Wedmore.
[ .] In doing so, we point out that although the allocation of the purchase price to the mortuary building was not initially finalized, the total purchase price for all assets had been agreed to. Therefore, there was sufficient evidence to find that the Initial Agreement contained parties capable of contracting and their mutual consent to the same terms. See SDCL 53-1-2, 53-3-3. The contract did not fail as a matter of law for uncertainty as to parties or consent to the purchase price of the assets.
d. Failure of Consideration
[ .] Behrens argue that Loewen's promise to pay under the Initial Agreement was "illusory." They contend that the Initial Agreement had "so many contingencies running unilaterally in Loewen's favor that Behrens could never enforce that document against Loewen." They also contend that the agreement was unenforceable because Loewen did not pay them to sign the Initial Agreement, and therefore, they received no consideration.
[ .] However, "consideration" is defined as:
ny benefit conferred or agreed to be conferred upon the promiser by any other person to which the promiser is not lawfully entitled, or any prejudice suffered or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer as an inducement to the promiser, is a good consideration for a promise.
SDCL 53-6-1 (emphasis added). Therefore, the agreement by Loewen to pay in the future was sufficient consideration. We further note that the contingencies that ran "unilaterally" in Loewen's favor were not essential terms of the contra
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