This is a dispute over the right to possession of some business property in downtown Anchorage. Appellants claimed that appellee had agreed to lease the property to them, and then had defaulted and leased it to a third party. Without appellee's knowledge or consent, appellants took possession of the premises which they were seeking to lease by entering the building where those premises are located during the early morning hours of April 18, 1964. Appellee requested appellants to leave and, when they refused, brought this forcible entry and detainer action to regain possession. The superior court held in favor of appellee and appellants have appealed.
The trial court's basic holding was that appellants had no oral or written lease, no claim or color of title, and no right to possession to the premises in dispute. The principal question on this appeal is whether such holding was erroneous.
In January 1964 appellants commenced negotiations with appellee for a lease of the premises. These negotiations resulted in an understanding between the parties that appellants would lease approximately 1200 square feet of floor space from appellee. It was contemplated by both parties that they would execute a written lease. Appellee's president, R.L. Rettig, testified that on March 17 or 18, 1964 the appellants picked up a draft of a lease which he had had prepared and was offering to appellants. Rettig had prepared the lease for execution not only by the appellant corporation, Thrift Shop, Inc., but also by the corporation's officers, Francis and Hazel Moesch, in their individual capacities. Rettig testified that on or about March 25 he telephoned Francis Moesch to see about getting the lease signed. Moesch told Rettig that he and his wife objected to signing the lease as individuals. Rettig said he heard nothing further from appellants until after the disastrous March 27th earthquake. On or about March 31 Francis and Hazel Moesch called on Rettig at his office. According to Rettig, they told him they were ready to go ahead with the written lease. Rettig told them that he did not know whether he could rent to them because the building had been condemned on account of the earthquake, and because Rettig had started discussions with other persons for a lease of the premises. The next day Hazel Moesch again came to Rettig's office, and at that time he told her that he would be unable to rent the property to her.
Francis Moesch testified that appellants had made an oral agreement with Rettig to lease the premises, and that they had made plans, which Rettig knew about, to make alterations in the space to be rented. Moesch also testified that in reliance on such agreement, appellants had ordered over $14,000 worth of equipment and $10,000 worth of merchandise to be placed in the store space they were renting from appellee. Finally, Moesch testified that when he and his wife called at Rettig's office on March 31, he made a tender to Rettig of the rent and offered him the written lease which had been signed by the corporation and by Francis and Hazel Moesch as individuals. He testified that Rettig refused to accept the lease or the rent.
We cannot say that the trial judge erred in holding that there was no binding lease agreement between the parties. A contract to lease would not exist until the parties had manifested their mutual assent to its formation.
From the testimony in this case it appears clear that an oral contract to lease never came into existence. Appellee's president, R.L. Rettig, was asked: "in these conversations did — did you ever arrive finally at what terms you would rent to them for?" He replied: "Yes. We had arrived at the general formula under which the lease would be entered into." Appellant Francis Moesch was asked whether during the negotiations he and Rettig finally came to an understanding of what the terms of the lease were. His answer was: "I told Mr. Rettig to draw the lease up. * * * I told him we'd take the building. * * * I says, `we'll take it', and he said `Fine', and when I got the lease I says, `Well, fine'."
This testimony in no way establishes that the parties had orally agreed upon all of the essential terms they planned to incorporate into the written lease. Rather, this testimony creates a strong inference that the parties intended that the final and full expression of their mutual assent would be deferred until the written lease had been prepared and agreed upon. There was no other testimony that detracted from the validity of such an inference. The evidence would not support a finding that the parties intended there be a binding agreement prior to the execution of the written lease.
Nor would the evidence support a finding that a contract was formulated when appellants tendered to appellee the signed lease and a check for the rent on March 31. Prior to that date, on March 17 or 18, appellee had offered to rent the premises according to the terms of a written lease which Rettig had had prepared and had presented to appellants. In order for a contract to have been formed, it was essential that acceptance of this offer be unequivocal and in exact compliance with the requirements of the offer that appellee had made.
These cases are not controlling. The practice and procedure in our courts today is not the same as that which prevailed in 1907 and 1915. Civil Rule 2 provides that "There shall be one form of action to be known as a `civil action.'" In Mitchell v. Land
The procedure in a forcible entry and detainer action is more summary in nature than in an ordinary civil action. Under Civil Rule 85 the summons in a forcible entry and detainer action must be served not less than 2 nor more than 4 days before the day of trial, and no continuance may be granted for a longer period than 2 days "unless the defendant applying therefor shall give an undertaking to the adverse party, with sureties approved by the court, conditioned to the payment of the rent that may accrue if judgment is rendered against defendant." It is true that if this action had been simply one to recover possession of property without reference to the forcible entry and detainer statute, Civil Rule 85 would not have been applicable. But appellants have not established that they were harmed by application of that rule. The only continuance they asked for was granted, and when the question of the existence of a contract to lease was being inquired into at the trial, appellants did not contend that they had been prejudiced by being summarily brought to trial.
Nor have appellants shown any prejudice arising from the fact that appellee's complaint was limited to claiming relief under the forcible entry and detainer statute, whereas the scope of inquiry at the trial was extended beyond the narrow issues of whether appellants had used force in securing or retaining possession of the premises. Appellants not only did not object to testimony concerning the existence or non-existence of a lease, but offered testimony themselves on this point. They did not claim that this matter could not be gone into because of the nature of appellee's complaint. Finally, appellants made no claim during the trial that because the action
The trial court was justified in holding that there was no lease agreement between the parties and that appellants had no right to possession of the premises in dispute. It is unnecessary to decide whether or not appellants' entry or detention of the premises was forcible within the meaning of the statute. The proof showed that appellants were not entitled to possession, without regard to whether the element of force was present.
Appellants' final point is that the court erred in awarding damages consisting of $25 a day as reasonable rental value of the premises during the time that appellants retained possession, together with the cost of hiring guards for that time at the rate of $156 a day. Appellants argue that appellee was limited to recovering arrears of rent or damage to the premises under that portion of the forcible entry and detainer statute which provides:
We do not interpret this statutory provision as limiting the recoverable damages where one's real property has been withheld from his possession by another. This section of the law purports to deal only with practice and procedure, and not with the substantive law of damages. And in dealing with procedure, this section has no significance, because in providing what causes of action may be united it attempts to regulate a matter of practice and procedure covered by court rule.
By unlawfully taking possession of appellee's property, appellants committed a tort and were liable as trespassers to appellee.
By reason of appellants' unlawful invasion of appellee's rights, appellee was denied the opportunity to collect rent for the property during the time that appellants had possession. In addition, appellee was required to hire guards for the building where the premises were located, because the building could not be kept locked while appellants occupied the premises. What appellee lost in rent and what it paid out for guards is the measure of compensation that appellants are obliged to pay for their invasion of appellee's rights. The damages awarded to appellee were proper.
The judgment is affirmed.