Keller v. Bones

615 N.W.2d 883 (2000)

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Nature of the Case

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Facts

Ds are the trustees of a Family Trust. The trust owns, a ranch in Lincoln County, Nebraska, which is the subject of this dispute. Ds listed the ranch for sale with a real estate agent. According to the listing agreement, if the listing sold to the current tenants, Lydic Brothers, the agent would receive only a 1-percent commission. On the other hand, if the listing sold to anyone else, the agent would receive a 6-percent commission. On July 17, 1997, P submitted an offer to buy the ranch to the agent in the form of a 'Real Estate Purchase Agreement' (offer) and made an earnest money deposit of $49,000 payable to the agent. The offer was for $490,000 and by its own terms would be withdrawn if not accepted by July 21 at 5 p.m. At 4:53 p.m. on July 21, D faxed a signed copy of the offer to their agent. Paragraph 15 of the offer states in part that 'upon execution by Seller, this agreement shall become a binding contract.' Loren Johnson, the agent's representative, did not telephone P to inform him of the acceptance until 5:12 p.m. on July 21 and did so by leaving a voice message on P's answering machine. On July 22, 1997, Don Lydic, a representative of Lydic Brothers, informed Ds and the agent that Lydic Brothers would match P's offer for the ranch. D wanted to accept Don Lydic's offer and sell the ranch to Lydic Brothers. The agent asked P if he would be willing to release D from the agreement and 'back out' of the deal. P refused. Ds unequivocally informed P on December 5, 1997, that they would not sell the ranch to him. P brought suit seeking specific performance and other relief. The district court entered summary judgment for Ds, finding that no valid contract was formed because the D's acceptance was not communicated to the buyer until after the deadline set forth in the offer had expired. P appealed the judgment of dismissal. The Court of Appeals affirmed, noting that under Pribil, neither the sellers' act of signing the offer nor the act of faxing a signed copy to their agent constituted the requisite 'communication' of the acceptance to the buyer to form a binding contract. The court maintained that the message left by Ds' agent on P's answering machine did not constitute the requisite communication because it was not in writing as required by the offer, was made after the 5 p.m. deadline, and was not delivered personally or by registered mail, as further required by the offer. P appealed.