Dickey v. Hurd

Circuit Court of Appeals, First Circuit · 1929 · Contracts

ContractsOffer and AcceptanceSpecific PerformanceReal Estate Contractsmirror image ruleacceptancecounterofferreal estate sale

Facts

Hurd wrote Dickey on July 8, 1926, offering to sell his Savannah River land, described in his deeds as 1,266 acres, for $15 per acre cash and giving Dickey through July 18 to accept. On July 17, Dickey sent a telegram stating he would buy at Hurd's price and terms, and that he would send $500 to be held subject to examination of title by his attorneys and a survey showing the acreage claimed. On July 20, Dickey sent a confirming letter, $500, and a proposed written agreement that made the purchase contingent on his counsel's approval of title and provided for rescission if counsel did not approve. Hurd then notified Dickey that the offer had expired because Dickey had not complied with its requirements.

Issue

Did Hurd's offer and Dickey's responsive telegram create an enforceable bilateral contract for the sale of land? More specifically, was Dickey's purported acceptance unequivocal, unconditional, and without variance, or did it add new conditions that prevented contract formation?

Rule

Where parties are negotiating by correspondence, an acceptance of an offer must be unequivocal, unconditional, and without variance. If the offeree adds conditions or introduces new terms not contained in the offer or implied by law, the response is not an acceptance and no contract is formed. An offer to sell an entire tract at an estimated acreage does not impliedly warrant the exact acreage or imply a right to delay performance for a survey to verify acreage.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Nora Ellison in Portland, Maine mailed Felix Rowan in Providence, Rhode Island an offer to sell a warehouse parcel described in her deed as 40 acres for $12,000 cash, stating he had until April 10 to accept. On April 9, Felix sent a letter stating, "I accept your price and terms, provided my attorney approves the title as satisfactory within ten days."

Did Felix's response form a contract?

Explanation. An acceptance must be unequivocal, unconditional, and without variance. A response that makes the buyer's obligation contingent on the personal approval of the buyer's attorney introduces a new term and reserves a right not found in the offer. The majority distinguished an implied duty to convey merchantable title from a promise that title must satisfy the buyer's counsel. Therefore no contract is formed. (Derived from Dickey v. Hurd (n.d.).)