Mccarthy v. Tobin

706 N.E.2d 629 (1999)

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Nature of the Case

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Facts

P executed an offer to purchase (OTP) real estate on a pre-printed form. The OTP contained, among other provisions, a description of the property, the price to be paid, deposit requirements, limited title requirements, and the time and place for closing. The OTP required that the parties 'shall, on or before 5 P.M. August 16, 1995, execute the applicable Standard Form Purchase and Sale Agreement recommended by the Greater Boston Real Estate Board . . . which, when executed, shall be the agreement between the parties hereto.' In the section containing additional terms and conditions, a typewritten insertion states, 'Subject to a Purchase and Sale Agreement satisfactory to Buyer and Seller.' The OTP provided, 'Time is of the essence hereof.' Finally, an unnumbered paragraph immediately above the signature line states: 'NOTICE: This is a legal document that creates binding obligations. If not understood, consult an attorney.' D signed the OTP on August 11, 1995. On August 16, 1995, sometime after 5 P.M., D's lawyer sent a first draft of the purchase and sale agreement by facsimile transmission to P's lawyer. On August 21, P's lawyer sent a letter by facsimile transmission containing his comments and proposing several changes to D's lawyer. The next day, the two lawyers discussed the proposed revisions. They did not discuss an extension of the deadline for signing the purchase and sale agreement, and D's lawyer did not object to the fact that the deadline had already passed. On August 23, D's lawyer sent a second draft of the agreement to P's lawyer. On August 25, a Friday, P's lawyer informed D's lawyer that the agreement was acceptable, P would sign it, and it would be delivered the following Monday. On Saturday, August 26, P signed the purchase and sale agreement. On the same day, D accepted the D1's offer to purchase the property. On August 28, P delivered the executed agreement and a deposit to D's broker. The next day, Ds lawyer told P's lawyer that the agreement was late and that D had already accepted the D1's offer. Before the D-D1 deal closed, P filed this action for specific performance and damages. The lower court ruled in favor of Ds.