Cross References.

Contracts of insane persons,§§ 32-107, 32-108.

Disaffirmance of contract by minor,§ 32-103.

Goods over $500, written contracts,§ 28-2-201.

Limitation of actions on written contracts,§ 5-216; on oral contracts,§ 5-217.

Males over the age of 18 years may enter into contracts to comply with “G. I. Bill of Rights,”§ 65-509.

Statute of frauds,§ 9-505.

Estoppel.

Parties having reached agreement and entered into a contract set forth and sued upon, are estopped to deny its general nature and force and effect and must act in accordance with such agreement and understanding. Payette Lakes Protective Ass’n v. Lake Reservoir Co., 68 Idaho 111, 189 P.2d 1009 (1948).

Married Women.

Married woman is not “deprived of her civil liberty” within meaning of this section, so as to render her incapable of contracting. Bassett v. Beam, 4 Idaho 106, 36 P. 501 (1894).

This section does not confer upon married women right to make any and all contracts that may be made by a feme sole. Dernham v. Rowley, 4 Idaho 753, 44 P. 643 (1896).

Section 32-904 gives married women the same contractual rights and responsibilities with respect to their separate property as those enjoyed by married men. Williams v. Paxton, 98 Idaho 155, 559 P.2d 1123 (1976).

Restrictive Agreements.

Restrictive agreements as to the use of property are legal. Payette Lakes Protective Ass’n v. Lake Reservoir Co., 68 Idaho 111, 189 P.2d 1009 (1948).

Cited Beard v. Beard, 53 Idaho 440, 24 P.2d 47 (1933); State v. Bronson, 94 Idaho 306, 486 P.2d 1019 (1971).

Cited

ALR.

Infant’s liability for services rendered by attorney at law under contract with him. 13 A.L.R.3d 1251.

Enforceability of covenant not to compete in infant’s employment contract. 17 A.L.R.3d 863.

Infant’s misrepresentation as to his age as estopping him from disaffirming his voidable transaction. 29 A.L.R.3d 1270.

Rights in respect of engagement and courtship presents when marriage does not ensue. 46 A.L.R.3d 578.

Agreement to Pay Debts.

Where the purchaser of a poultry business agreed to pay the business’s debts, including a debt to a poultry supplier, and that agreement was supported by adequate consideration and not rescinded, the supplier was a third-party beneficiary of the contract and was entitled to assert and have judgment in its favor by way of setoff against a debt owed by the supplier to the purchaser. Treasure Valley Foods, Inc. v. J-M Poultry Packing Co., 98 Idaho 366, 564 P.2d 978 (1977).

Where buyer agreed in a lease contract, executed with the purchase of the seller’s land, to pay the seller’s arrearage with a power company, the power company could not enforce that lease provision against the buyer because the lease was executed only to provide cash flow to the buyer and to the seller to continue to operate a business on the land; hence, the company was not an intended beneficiary of the lease contract. Idaho Power Co. v. Hulet, 140 Idaho 110, 90 P.3d 335 (2004).

Beneficiaries.

A contract between the lessee-grower and crop purchaser, which enumerated the rights and duties of those parties toward each other, was not drawn expressly for the benefit of the farmowner lessor; thus, the farmowner was not entitled to demand performance from the crop purchaser. Wing v. Amalgamated Sugar Co., 106 Idaho 905, 684 P.2d 307 (Ct. App. 1984), overruled on other grounds, NBC Leasing Co. v. R & T Farms, Inc., 112 Idaho 500, 733 P.2d 721 (1987).

Before recovery can be had by a third party beneficiary, it must be shown that the contract was made for his direct benefit or, as sometimes stated, primarily for his benefit; it is not sufficient that he be a mere incidental beneficiary. Adkison Corp. v. American Bldg. Co., 107 Idaho 406, 690 P.2d 341 (1984). Where a contract was not made expressly for the benefit of any of the plaintiffs as third parties to the arrangement between the contracting parties, and where it referenced Utah law in a generalized statement that the rights and obligations of the parties should be governed in accordance with the laws of Utah, this did not suffice to invoke the terms of this section, and the district court’s decision that the plaintiffs, who did not have valid liens, could recover under the Utah bond statutes as an alternative theory was vacated. Great Plains Equip., Inc. v. Northwest Pipeline Corp., 132 Idaho 754, 979 P.2d 627 (1999).

Where the owners entered into a contract with the general contractor for the design of a cabin and the supply of construction materials, the owners were not permitted to directly sue a subcontractor for breach of contract as a third party beneficiary where the benefits the owners received from the subcontractor’s performance were merely incidental. Nelson v. Anderson Lumber Co., 140 Idaho 702, 99 P.3d 1092 (Ct. App. 2004).

Client, the promisor, directed his promise to pay to the company, making the company the named promisee of the note, and as such, the company did not have an enforceable right against the client as a third party beneficiary but, rather, had an enforceable right as the promisee of the note so long as the note was otherwise enforceable; thus, the district court’s holding that the company may enforce the note as a third party beneficiary was made in error. Sirius LC v. Erickson, 144 Idaho 38, 156 P.3d 539 (2007).

This section does not give a party to a contract the right to enforce the contract against a nonparty on the ground that the nonparty is a third-party beneficiary to the contract. Clearwater REI, LLC v. Boling, 155 Idaho 954, 318 P.3d 944 (2014).

Company was not a third-party beneficiary of the bid contract between a business and a general contractor, for purposes of this section, given that the contract did not clearly show an intent expressly to benefit the company. De Groot v. Standley Trenching, Inc., 157 Idaho 557, 338 P.3d 536 (2014).

Comparison.

California and Oklahoma have statutes providing that third party beneficiaries may sue to enforce nonrescinded contracts. See Cal. Civ. Code, § 1559 and Okla. Stat., tit. 15, § 29. These statutes have been interpreted to leave untouched the doctrine that after acceptance or reliance, a third party beneficiary contract cannot be unilaterally rescinded. Baldwin v. Leach, 115 Idaho 713, 769 P.2d 590 (Ct. App. 1989).

Federal Rule.

The federal court decisions permit a third person, not a party to a contract, to enforce the promissory obligation only where he is the beneficiary solely interested in the promise. Twin Falls Canal Co. v. American Falls Reservoir Dist. No. 2, 59 F.2d 19 (9th Cir.), cert. denied, 287 U.S. 638, 53 S. Ct. 87, 77 L. Ed. 552 (1932).

Intent to Benefit.

The contract itself must express an intent to benefit the third party; this intent must be gleaned from the contract itself unless that document is ambiguous, whereupon the circumstances surrounding its formation may be considered. Adkison Corp. v. American Bldg. Co., 107 Idaho 406, 690 P.2d 341 (1984).

Under Idaho law, if a party can demonstrate that a contract was made expressly for his benefit, he may enforce that contract, at any time prior to rescission, as a third party beneficiary. Baldwin v. Leach, 115 Idaho 713, 769 P.2d 590 (Ct. App. 1989). There was no evidence in the record showing that hauler and farmer intended to benefit dairyman when they entered into an agreement regarding the hauler handling hay produced by the farmer. At most, dairyman was only an “incidental beneficiary” within hauler’s contemplation when the agreement was made. Hilt v. Draper, 122 Idaho 612, 836 P.2d 558 (Ct. App. 1992).

If a party can demonstrate that a contract was made expressly for its benefit, it may enforce that contract, prior to recision, as a third-party beneficiary; the test for determining a party’s status as a third-party beneficiary, capable of properly invoking the protection of this section, is whether the agreement reflects an intent to benefit the third party. Seubert Excavators, Inc. v. Eucon Corp., 125 Idaho 744, 874 P.2d 555 (Ct. App. 1993), rev’d on other grounds, 125 Idaho 409, 871 P.2d 826 (1994).

Under this section, if a party can demonstrate that a contract was made expressly for its benefit, it may enforce that contract, prior to rescission, as a third-party beneficiary. The test for determining a party’s status as a third-party beneficiary, capable of properly invoking the protection of this section, is whether the agreement reflects an intent to benefit the third party. The third party must show that the contract was made primarily for his benefit, and that it is not sufficient that he be a mere incidental beneficiary. Further, the contract itself must express an intent to benefit the third party. This intent must be gleaned from the contract itself unless that document is ambiguous, whereupon the circumstances surrounding its formation may be considered. Am. W. Enters. v. CNH, LLC, 155 Idaho 746, 316 P.3d 662 (2013).

Leases.

Fact that lease was to expire in two years if plaintiff failed to sublease to defendants, shows that extension agreement between landlord and plaintiff for five years was made expressly for defendant’s benefit and sustains defendant’s claim of third party beneficiary of the extension agreement. Knight v. Fox Caldwell Theatres Corp., 70 Idaho 148, 212 P.2d 1027 (1949).

Public Contracts.

Absent a manifest intent to the contrary, construction contracts between a contractor and a state or other public body for highway repair or construction of a new highway are generally not considered as being for the benefit of third persons, but are, on the one hand, for the benefit of the state in the performance of its duties to maintain highways on behalf of the public and, on the other hand, for the benefit of the contractor by way of compensation to be paid. Davis v. Nelson-Deppe, Inc., 91 Idaho 463, 424 P.2d 733 (1967).

Provisions of contract between local improvement district and construction company, whereby construction company agreed to provide continuous ingress and egress to and from all businesses that might be affected by the work and to protect such businesses from damages, obligated the construction company to take certain precautionary measures for the benefit of a limited, defined class of third parties, the businesses within the local improvement district; thus, members of that class of third-party beneficiaries were entitled to sue for the construction company’s alleged breach of those contract provisions. Just’s, Inc. v. Arrington Constr. Co., 99 Idaho 462, 583 P.2d 997 (1978).

Rescission.

Violation of Contract With City.

After a contract for the benefit of a third person has been accepted or acted upon by that person, it cannot be rescinded without his consent. Baldwin v. Leach, 115 Idaho 713, 769 P.2d 590 (Ct. App. 1989). Violation of Contract With City.

It was error to summarily dismiss a count of a complaint against a construction company by one injured by his truck striking an outcropping of rock adjacent to a street area where defendant was installing sewer pipe under contract with the city, which injury was alleged to have been caused by defendant’s violation of a provision of his contract requiring installation of warning devices and of which contract plaintiff claimed to be a third party beneficiary. Stewart v. Arrington Constr. Co., 92 Idaho 526, 446 P.2d 895 (1968).

Subscriber to cable TV was found to be a third party beneficiary of franchise contract between city and cable service with the right to sue for rate overcharge. Bush v. Upper Valley Telecable Co., 96 Idaho 83, 524 P.2d 1055 (1974).

Cross References.

Consideration in negotiable instruments,§ 28-3-303.

Acknowledgment of Services.

The written acknowledgment of broker’s services and promise to pay therefor, being unrelated to the oral promise to pay for such services when yet to be performed, was sufficient to satisfy the requirements of the statute of frauds or§ 9-508, such written instrument being presumptive evidence of a valid consideration and the burden would rest on appellants to avoid such instrument. Homefinders v. Lawrence, 80 Idaho 543, 335 P.2d 893 (1959).

Attorney’s Agreement to Compensate for Improper Advice.

Where attorney, by written agreement, promised client, who was his sister, that he would compensate her for any loss she may suffer as a result of taking his advice in failing to waive community property rights in order to take specific bequests under will, an agreement of forbearance to sue would be presumed as consideration for the agreement. Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968).

Consideration.

Where one under influence of threats or persuasion, and for purpose of avoiding a present or threatened embarrassment agrees to pay or recognize a claim that has no foundation either in equity or law, such agreement is without consideration and void. Vane v. Towle, 5 Idaho 471, 50 P. 1004 (1897); Blaine County Nat’l Bank v. Timmerman, 42 Idaho 338, 245 P. 389 (1926). Where contract is introduced in evidence and no proof offered of failure of consideration, court’s conclusion must rest upon construction of contract itself. Citizens’ Bank & Trust Co. v. Pocatello Milling & Elevator Co., 41 Idaho 403, 240 P. 186 (1925).

Benefit to third person is sufficient consideration for promise. Citizens’ Bank & Trust Co. v. Pocatello Milling & Elevator Co., 41 Idaho 403, 240 P. 186 (1925).

Where promise is made for benefit of several persons, it is not essential to recovery thereon that each of such persons should have contributed to consideration. Citizens’ Bank & Trust Co. v. Pocatello Milling & Elevator Co., 41 Idaho 403, 240 P. 186 (1925).

Defense of failure of consideration must be established by fair preponderance of evidence. First Nat’l Bank v. Doschades, 47 Idaho 661, 279 P. 416 (1929).

A proposed amendment by defendants in action brought for a declaratory judgment under a contract which alleged want of consideration, but which did not set up facts, which, if proven, would constitute want of consideration, was defective, since a written instrument is presumptive evidence of consideration. Merritt v. Sims, 78 Idaho 292, 301 P.2d 1108 (1956).

A written instrument is presumptive evidence of consideration, but that presumption is rebuttable and not conclusive, and a party seeking to avoid or invalidate the contract may introduce evidence of a lack of consideration. Lewis v. Fletcher, 101 Idaho 530, 617 P.2d 834 (1980).

Court’s decision that option contract that provided for consideration of $1 and other good and valuable consideration was supported by valid consideration was based on substantial and competent evidence where the record demonstrated that 10 years after the fact no one involved had a clear memory of everything that transpired in completing the transaction and the instrument itself provided for “other good and valuable consideration” and there was a written acknowledge of the receipt of such consideration. Dennett v. Kuenzli, 130 Idaho 21, 936 P.2d 219 (Ct. App. 1997).

In a dispute involving restrictive covenants, an owner failed to meet his burden of showing that new members did not give consideration when joining the estate and signing an amended covenant; by signing the document, the new members agreed to be bound by all of the terms contained therein. Best Hill Coalition v. HALKO, LLC, 144 Idaho 813, 172 P.3d 1088 (2007).

Guaranty Contracts.

Contract of guaranty in writing imports a consideration. Allis-Chalmers Mfg. Co. v. Citizens’ Bank & Trust Co., 3 F.2d 316 (D. Idaho 1924).

Indorsements.

Where indorsement of notes after delivery is in writing, presumption of consideration obtains. Thomas v. Hoebel, 46 Idaho 744, 271 P. 931 (1928).

Mutual Promises.

A mutual contributing or indemnity contract is supported by mutual promises of the signers to each other and payment under it. Caldwell v. McKenna, 54 Idaho 552, 33 P.2d 366 (1934).

Presumption.

Where no consideration is mentioned in document, party is not estopped from showing no consideration in fact. Porter v. Title Guar. & Sur. Co., 17 Idaho 364, 106 P. 299 (1909). This section and§ 29-104 merely provide that a written instrument imports a consideration and that the burden of proving want of consideration lies on the party seeking to avoid it; they do not go to the extent of presuming the source of such consideration. Aker v. Aker, 52 Idaho 713, 20 P.2d 796, cert. denied, 290 U.S. 587, 54 S. Ct. 80, 78 L. Ed. 518 (1933).

Separate Contract of Married Woman.

This presumption is insufficient to obviate necessity of showing, where person sought to be held on a promissory note is a married woman, that debt was contracted for her own use or benefit, or use or benefit of her separate estate. McFarland v. Johnson, 22 Idaho 694, 127 P. 911 (1912).

Specific Performance.

In an action for specific performance the duty of alleging, and the burden of proving inadequacy of consideration, rests on the party relying on it as a defense. Locklear v. Tucker, 69 Idaho 84, 203 P.2d 380 (1949).

Specific performance will not be granted unless the contract is complete, definite and certain in all its material terms, or contains provisions which are capable in themselves of being reduced to certainty. Locklear v. Tucker, 69 Idaho 84, 203 P.2d 380 (1949).

Affirmative Defense.

Under certain conditions parol evidence may be introduced to show the true consideration or want of consideration for a promissory note or other instrument; however, the supreme court has consistently held that the defense of want or failure of consideration are affirmative defenses to be pleaded. Rosenberry v. Clark, 85 Idaho 317, 379 P.2d 638 (1963).

Agreement to Pay Client for Loss.

In an action on an attorney’s written agreement to compensate a client for any loss sustained by his neglect to advise her to execute a waiver required to qualify for specific bequests under her late husband’s will, the burden was upon the personal representative of such attorney to establish any claimed want of consideration. Frasier v. Carter, 92 Idaho 79, 437 P.2d 32 (1968).

Burden Not Met.

In a dispute involving restrictive covenants, an owner failed to meet his burden of showing that new members did not give consideration when joining the estate and signing an amended covenant; by signing the document, the new members agreed to be bound by all of the terms contained therein. Best Hill Coalition v. HALKO, LLC, 144 Idaho 813, 172 P.3d 1088 (2007).

Issue Not Pleaded.

Rebuttable Presumption.

Contention of appellants that trial court committed error in sustaining respondent’s objection to a question propounded to appellant whereby the witness was asked to explain what consideration was paid him by the corporation for the execution of the note and mortgage involved in this suit, such objection, being that an attempt was being made to alter a written instrument by parol evidence, was not sustained, in view of the fact that there was no issue under the pleadings regarding the consideration of either instrument nor anything pleaded by either party claiming want or failure of consideration or fraud on the part of any party. Rosenberry v. Clark, 85 Idaho 317, 379 P.2d 638 (1963). Rebuttable Presumption.

A written instrument is presumptive evidence of consideration, but that presumption is rebuttable and not conclusive, and a party seeking to avoid or invalidate the contract may introduce evidence of a lack of consideration. Lewis v. Fletcher, 101 Idaho 530, 617 P.2d 834 (1980).

Cross References.

Contracts required to be in writing,§ 9-505 et seq.

Goods and choses in action over $500, written contracts,§ 28-2-201.

Estoppel.

Where defendant led plaintiff to believe that he had signed a written contract for an interest in certain mining claims, and induced plaintiff to purchase claims on which he had options, and to otherwise expend money and time to carry out provisions of the agreement, defendant cannot assert in an action to enforce the contract that contract is void under the statute of frauds because he did not in fact sign the same. Ferguson v. Blood, 152 F. 98 (9th Cir. 1907).

This estoppel arises when one by his acts, representations, or silence induces another to believe certain facts to exist and such other, relying and acting on such belief, is thereby prejudiced. Leaf v. Codd, 41 Idaho 547, 240 P. 593 (1925).

Addenda.

In a dispute over a land-sale contract, even though addenda were controlling over inconsistent provisions in a pre-printed contract, they did not create any additional duty on the part of the seller beyond his obligation to make a good faith effort to obtain marketable title. Johnson v. Lambros, 143 Idaho 468, 147 P.3d 100 (Ct. App. 2006).

Intention of Parties.

Contract will be construed in the light of surrounding facts and circumstances to arrive at the real intention of the parties. Wood River Power Co. v. Arkoosh, 37 Idaho 348, 215 P. 975 (1923).

Object and purpose of contract may well be taken into consideration in arriving at a correct understanding of what the parties had in mind in using words, the meaning of which is in controversy. Clarke v. Blackfoot Waterworks, 39 Idaho 304, 228 P. 326 (1924).

Primary test as to character of contract is the intention of the parties to be gathered from the whole scope and effect of language used. Wallace Bank & Trust Co. v. First Nat’l Bank, 40 Idaho 712, 237 P. 284 (1925).

Limitations and Construction.

Courts cannot make contracts for parties. Smith v. Krall, 9 Idaho 535, 75 P. 263 (1904); Machold v. Farnan, 14 Idaho 258, 94 P. 170 (1908); Sorensen v. Larue, 43 Idaho 292, 252 P. 494 (1926).

Writing Controls Printing.

No recovery of purchase money paid on an executory contract for sale of land can be recovered by vendee on rescission of contract, unless rescission agreement expressly or impliedly provides therefor. Williams v. Skelton, 40 Idaho 741, 237 P. 412 (1925). Writing Controls Printing.

Words “to be paid as loaded,” written into contract with pencil, prevail over that portion of printed contract providing for payment “upon the completion of loading on board cars for shipment.” Idaho Prods. Co. v. Bales, 36 Idaho 800, 214 P. 206 (1923).

Typewritten parts of a contract prevail over the printed parts. Weeter v. Reynolds, 48 Idaho 611, 284 P. 257 (1930).

Where contract is partly written and partly printed, written parts control printed parts, unless parts which are antagonistic can be reconciled. Ries v. Pacific Fruit & Produce Co., 50 Idaho 140, 294 P. 336 (1930).

Where the word “Idaho” in certificate of acknowledgment was stricken in two places to change the printed form to make it properly applicable to “Utah” and the word “Utah” was written in both places with a pen, the error in failing to strike the word Idaho and substitute the word “Utah” in one instance was apparently a clerical error which did not vitiate the instrument when read in its entirety, the intent being clearly inferable. Pacific Coast Joint Stock Land Bank v. Security Prods. Co., 56 Idaho 436, 55 P.2d 716 (1936).

In an action by a lessor against the lessee for breach of contract for failure to deliver an operable radiant heating system at the expiration of the lease of a gasoline service station site, where a letter between the parties written after execution of the lease agreement modified and expanded the lease by adding the radiant heating terms to the basic agreement, written provisions of the letter were part of the same contract and controlled over conflicting provisions of the printed form. Werry v. Phillips Petroleum Co., 97 Idaho 130, 540 P.2d 792 (1975).

Where more specific “due-on-sale” provision of contract was a typed additional provision to the contract while general “due-on-sale” provision was a clause set forth in the printed form, the more specific provision controlled. Barr Dev., Inc. v. Utah Mtg. Loan Corp., 106 Idaho 46, 675 P.2d 25 (1983).

Amendments.

The 2012 amendment, by ch. 328, inserted “under contract or” in the section heading; in subsection (1), substituted “under the contract in Idaho tribunals” for “under the contract by the usual proceedings in the ordinary tribunals” and added “as it is against the public policy of Idaho” in the first sentence; and added the last sentence.

Compiler’s Notes.

The words enclosed in parentheses so appeared in the law as enacted.

Arbitration.

Stipulation in a building contract to submit differences to arbitrators whose decision shall be final is void. Huber v. St. Joseph’s Hosp., 11 Idaho 631, 83 P. 768 (1905).

Compensation Paid Under Federal Law.

Even if an Idaho court would allow reformation of an insurance policy, it would not recognize the parties’ choice of Illinois law on the statute of limitation issue, where Idaho had a materially greater interest in the statute of limitation as the forum state within which the damaged property was located and Idaho has expressed a fundamental policy by requiring strict adherence to its statutory limitations period. Industrial Indem. Ins. Co. v. United States, 757 F.2d 982 (9th Cir. 1985).

Compromise Agreements.

By commencing and maintaining action for specific performance of original contract, entering into compromise agreement continuing action for specific performance, and failing to dismiss such action before commencing subsequent action, party elected to rely upon remedy afforded by former action. Christman v. Rinehart, 46 Idaho 701, 270 P. 1059 (1928).

Federal Law.

Idaho law could not be applied in place of federal maritime law where the suit arose from a tort occurring on the high seas and involved the interpretation of a maritime contract for a cruise to Mexico; no public policy exceptions were controlling in an international commercial agreement outside of American waters. Fisk v. Royal Caribbean Cruises, 141 Idaho 290, 108 P.3d 990 (2005).

Fire Insurance Policy.

Statutory amendment by implication is disfavored and will not be inferred absent clear legislative intent; accordingly, the legislature, by providing in§ 41-2401 that no fire insurer shall issue fire insurance on a form other than the “New York Standard as Revised in 1943,” did not intend to amend the general five-year statute of limitations upon actions brought upon written contracts and did not create a one-year statute of limitations with respect to actions on policies of fire insurance. Sunshine Mining Co. v. Allendale Mut. Ins. Co., 107 Idaho 25, 684 P.2d 1002 (1984). Provisions within fire insurance policies attempting to limit to one year the time for filing actions on the insurance policies were void under this section. Sunshine Mining Co. v. Allendale Mut. Ins. Co., 107 Idaho 25, 684 P.2d 1002 (1984).

Section 41-2401 requires that fire insurers issue policies only on the New York standard form as revised in 1943; the form includes a clause specifying a 12-month limitation period for claims. However,§ 5-216 establishes a five-year statute of limitation for contracts, including insurance policies, and this section prohibits any condition in a contract that would reduce that period; thus, the applicable limitations period for the commencement of a suit for reimbursement was five years. Industrial Indem. Ins. Co. v. United States, 749 F.2d 1390 (9th Cir. 1984).

Forum Selection Clauses.

In case where Florida law controlled as to the enforceability of forum selection clauses, and where Florida law stated that, in order for forum selection clauses to be enforceable, enforcement could not contravene a strong policy enunciated by statute either in the forum where the suit was brought or the forum from which the suit was excluded, this section expressed a strong public policy against the enforcement of forum selection clauses; therefore, forum selection clause in the case could not stand. Cerami-Kote, Inc. v. Energywave Corp., 116 Idaho 56, 773 P.2d 1143 (1989).

Nothing in this section shall affect contract provisions relating to arbitration, so long as the contract does not require arbitration to be conducted outside the state of Idaho. T3 Enters. v. Safeguard Bus. Sys., 164 Idaho 738, 435 P.3d 518 (2019).

A clause in a purchase agreement, finalized in Idaho, that requires any action or proceeding arising out of or relating to the agreement to be brought in Delaware is unenforceable, because it contravenes the strong public policy declared by this section. Gemini Techs., Inc. v. Smith & Wesson Corp., 931 F.3d 911 (9th Cir. 2019).

Land Contracts.

Provision of contract for sale of land that, on nonpayment of consideration, premises should be surrendered by purchasers and payments previously made should be retained by vendors as rent, does not violate this section. McCutcheon v. Thomas, 47 Idaho 188, 273 P. 950 (1928).

Limitation of Actions.

Provision in a contract of issuance to the effect that no action at law or suit in equity shall be commenced before three months nor after six months from date on which affirmative proof of accident must be furnished to the company is repugnant to this section. Douville v. Pacific Coast Cas. Co., 25 Idaho 396, 138 P. 506 (1914).

Provision in a benefit certificate of a fraternal insurance society to the effect that no action may be maintained thereon unless brought within one year of date of death violates this section and is void. Gaffney v. Royal Neighbors of Am., 31 Idaho 549, 174 P. 1014 (1918).

Municipal Contracts.

Provision in health and accident policy that no action could be brought on the policy, unless brought within two years after expiration of time to make proof of loss, is void under this section. Harding v. Mutual Benefit Health & Accident Ass’n, 55 Idaho 131, 39 P.2d 306 (1934). Municipal Contracts.

Provision in contract with municipality that decision of engineer should be binding on parties does not restrict either party from enforcing rights in court and is not in conflict with this section. White v. Soda Springs, 46 Idaho 153, 266 P. 795 (1928).

Venue of Actions.

Stipulation seeking to authorize commencement of action in any other county than that fixed by statute is not binding upon parties. McCarty v. Herrick, 41 Idaho 529, 240 P. 192 (1925).

Waiver of Right.

Clause in a promissory note waiving all rights of appeal is in violation of this section. GMAC v. Talbott, 38 Idaho 13, 219 P. 1058 (1923).

Estoppel.

When a contract was rescinded for fraud as to water rights on lands purchased, the federal court, following the interpretation of this section by the Idaho supreme court, held the vendor was estopped from claiming taxes or rent. Oregon Mtg. Co. v. Renner, 17 F. Supp. 727 (D. Idaho 1937), aff’d, 96 F.2d 429 (9th Cir. 1938).

Where the creditor had not only the opportunity to object but was invited to do so and did nothing, he cannot now complain of the procedure suggested to close the transaction. Dohrman v. Tomlinson, 88 Idaho 313, 399 P.2d 255 (1965).

Tender.

Conditional tender by mortgagor to assignee of mortgage held good where not objected to, although time for objecting was short. Harding v. Home Inv. & Sav. Co., 49 Idaho 64, 286 P. 920, rehearing denied, 49 Idaho 64, 75, 297 P. 1101 (1930).

When no objection is made either to the mode, form or substance of the offer, it constitutes a legal tender. Allis-Chalmers Mfg. Co. v. Harris, 56 Idaho 769, 59 P.2d 345 (1936).

Where vendee made no objection to a tender and offer of an abstract of title, when there was opportunity to do so, he could not later complain of the insufficiency of the offer or the failure of vendor to produce or actually to deliver the extended abstract. Metzker v. Lowther, 69 Idaho 155, 204 P.2d 1025 (1949).

Where a bank’s objection, if it could have been so characterized, was based upon the lateness of the property owners’ tender of the money necessary to cure the default on their note, not upon the “mode” of payment or of any offer to pay, the property owners’ failure to effect a timely cure was not excused by application of this section since there was nothing in this section that would have required the bank to anticipate a late tender and to give special notice of the obvious — that an untimely tender could be rejected. Owens v. Idaho First Nat’l Bank, 103 Idaho 465, 649 P.2d 1221 (Ct. App. 1982).

Cited

Seller’s action in making premature withdrawal of escrow papers did not deprive the purchasers of their contract right to cure the existing default within 30 days after the second default notice; it is uncontroverted that on the 30th day the purchasers tendered a partial cure after the papers had been returned and the escrow holder rejected the tender upon the seller’s instruction for the contract made no provision for partial cure and the seller was under no general legal obligation of specific statutory obligation. Aldape v. Lubcke, 107 Idaho 316, 688 P.2d 1221 (Ct. App. 1984). Cited Moody v. Crane, 34 Idaho 103, 199 P. 652 (1921).

Compiler’s Notes.

The term “this act” at the beginning of the second paragraph refers to S.L. 1971, Chapter 46, which is compiled as this section.

The phrase “at the time the act becomes effective” in the last paragraph refers to the effective date of S.L. 1971, Chapter 46, which was effective May 18, 1971.

Jury Instructions.

In personal injury action against city, telephone company and two contractors where both contractors admitted that they were responsible for leaving the work area where plaintiff’s motorcycle accident occurred in a safe condition for the motoring public and for properly marking or signing the area with appropriate warning devices if the area could not be left in a safe condition for the motoring public, jury instruction that, in determining any negligence of the city or the telephone company, the jury was allowed to consider only whether the city or the telephone company failed to discover or remedy any defect in the street or any inadequacy in warning of a defect caused by the contractors was correct; therefore, the city was not entitled to indemnification by the telephone company and was not an indemnitee of the telephone company, as referred to in this section; thus, indemnification clause of agreement between phone company and one contractor did not violate this section. Beitzel v. City of Coeur d’Alene, 121 Idaho 709, 827 P.2d 1160 (1992).

Prior Laws.

Former§ 29-116, which comprised I.C.,§ 29-116, as added by 1993, ch. 397, § 2, p. 1460, expired on July 1, 1995, was automatically repealed and became null and void pursuant to § 3 of S.L. 1993, ch. 397.

Compiler’s Notes.

As of May 2018, the uniform computer transaction act had been adopted only in Virginia and Maryland. See http://www.uniformlaws.org/shared/docs/computerinformationtransactions/ucitafinal02.pdf .