Mabee v. Nurseryland Garden Centers, Inc.

Opinion

WELSH, J.

*

Nurseryiand Garden Centers, Inc. (Nurseryiand) appeals from a judgment for plaintiff John C. Mabee in the sum of $44,178 for breach of an agreement to lease a portion of a shopping center on the south side of Via de la Valle near Interstate 5 in Del Mar. Nurseryiand contends first, the document relied upon by Mabee was not a completed lease in that the document was indefinite constituting only an agreement to agree and second, Nurseryiand revoked the offer before it was accepted by Mabee. Nurseryiand also alleges prejudicial error in the jury instructions.

On May 14, 1974, after approximately one year of negotiations, Nurseryland’s president Ken Cook signed a proposed lease and initialed a plot plan which outlined the dimensions of the leased premises. The lease referred to the plot plan as “Exhibit A” but the plot plan initialed by Cook was not marked. The signed lease and the plot plan were then delivered to Mabee. The lease contained the following provision: “Execution of this lease by one party constitutes an offer which shall not be deemed accepted by the other party until the other party has executed this lease and delivered a duplicate original to the other party.” Mabee signed the lease on May 30 but he did not deliver it to Nurseryiand until June 10.

The lease referred to three other exhibits (A-l, B & C) that were not to come into existence until after the lease was signed. One such exhibit, “A-l,” was to be a precise site plan showing Nurseryland’s building, parking and access. Between May 14 and June 7 the parties considered three different site plans which had been prepared by Nurseryland’s architect. The south boundary of all three site plans coincided with the

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south boundary of the initialed plot plan and the total square footage of each site plan was approximately the same as the plot plan. However, two site plans, including one marked “Exhibit A, A-l,” varied in dimension from the plot plan. Their north and west boundaries were not coterminous with the plot plan. Mabee testified that all three site plans were acceptable to him although he expressed a preference for “A, A-l.”

Discussions concerning alternate site plans were in progress when Nurseryland began side negotiations for a possible lease in the Flower Hill shopping center across the street. On June 7 Cook told his attorney Nurseryland had decided to lease from Flower Hill and the attorney was instructed to prepare a letter revoking the Mabee lease. On June 10, after a conversation with Cook, Mabee’s negotiator, Petrich, suspected Cook was stalling. He communicated his suspicions to Mabee, who instructed Petrich to immediately deliver the signed lease to Cook. This was done. When Cook received the signed lease he asked Petrich if he had received the revocation. Petrich stated he had received no revocation. Cook then telephoned his counsel who allegedly told him the revocation was in transit to Mabee. Mabee received the revocation later that afternoon. The lease that was delivered by Petrich to Cook did not have attached to it the initialed plot plan. The next day Petrich wrote “Exhibit A” on the initialed plot plan and mailed it to Cook with another copy of the lease. Nurseryland claims the change in boundaries on two of the site plans under consideration signifies the parties had never agreed on a plot plan. Thus, it is urged, the lease was never formed and Mabee’s belated forwarding of the initialed plot plan (exhibit A) was a useless act.