Barry C. Minich and Donna J. Minich v. Gem

This action was brought by plaintiffs-respondents Barry and Donna Minich, husband and wife, for specific performance of a contract to sell a suburban lot and custom-built house. Defendants-appellants are two corporations, Gem State Developers, Inc., and Thomas G. Smith, Inc., and three individuals, Frank Marcum, Bertha Marcum, and Thomas G. Smith. Gem State Developers, Inc. is an Idaho corporation engaged in residential real estate development. Thomas G. Smith, Inc., is an Idaho corporation engaged in constructing houses on property owned by Gem State Developers, Inc., with financing obtained by Gem State Developers, Inc. Frank Marcum and Bertha Marcum are officers, directors, and the controlling shareholders of both corporations. Thomas G. Smith, president and co-owner of Thomas G. Smith, Inc., at the time this dispute arose, has since left for California. He has never appeared in this action and is not involved in this appeal. Two written contracts are involved here. The first was entered into in October 1974, and named as parties Thomas G. Smith and Valana Sue Smith and Frank E. Marcum and Bertha Marcum as the Contractors and respondents as the buyers. The contract was executed on behalf of the Contractors by Thomas G. Smith, Inc., without specifying which individual had signed it or in what capacity it had been signed. This contract provided for the construction of a custom-built home and the sale of the home and lot to respondents at the price of cost plus ten percent. The contract also provided for the sale to respondents of a temporary home, owned by Gem State Developers, Inc., for occupancy during the period of construction of the new house. When the new house was completed, respondents were to reconvey the temporary house back to the Contractors. The second contract was entered into in April, 1975, when the new house was nearing completion. This contract was executed by respondents as buyers and by Thomas G. Smith, Inc., as seller. It provided for the sale of the house and lot at the price of $55,000, and set the closing date for the sale as May 1, 1975.