Normile v. Miller,

313 N.C. 98, 326 S.E. 2d 11 (1985)

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Nature of the Case

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Facts

Miller (D) owned real estate located in Charlotte, North Carolina. The property was listed for sale with a local realtor, Hawkins. Byer, a real estate broker with the realty firm Gallery of Homes, showed the property to the prospective purchasers, Normile and Kurniawan (Ps). Byer helped Ps prepare a written offer to purchase the property. A Gallery of Homes form, entitled 'Deposit Receipt and Contract for Purchase and Sale of Real Estate,' containing blanks for the insertion of terms pertinent to the purchasers' offer, was completed in quadruplicate and signed by Ps. One specific standard provision in Paragraph 9 included a blank that was filled in with the time and date to read as follows: 'Offer & Closing Date: Time is of the essence, therefore this offer must be accepted on or before 5:00 p.m. Aug. 5th, 1980. A signed copy shall be promptly returned to the purchaser.' Byer took the offer to purchase form to Hawkins, who presented it to D. Later that evening, Hawkins returned the executed form to Byer. It had been signed under seal by D, with several changes in the terms having been made thereon and initialed by D. The primary changes made by D were an increase in the earnest money deposit ($100 to $500); an increase in the down payment due at closing ($875 to $1,000); a decrease in the unpaid principal of the existing mortgage amount ($18,525 to $18,000); a decrease in the term of the loan from seller (25 years to 20 years); and a purchaser qualification contingency added in the outer margin of the form. Byer presented D's counteroffer to Normile (P). P did not have $500 for the earnest money deposit, one of the requirements of D's counteroffer. P did not 'want to go 20 years because he wanted lower payments.' Byer was under the impression at this point that P thought he had first option on the property and that 'nobody else could put an offer in on it and buy it while he had this counteroffer, so he was going to wait awhile before he decided what to do with it.' P neither accepted nor rejected the counteroffer. Byer left the pink copy of the offer to purchase form containing D's counteroffer with P. Byer stated that he thought that P had rejected the counteroffer at this point. On 5 August at noon, Byer went to the home of Segal (P1), who signed an offer to purchase with terms very similar to those contained in D's counteroffer to Ps. This offer was accepted, without change, by D. Later that same day, at approximately 2:00 p.m., Byer informed P that defendant had revoked her counteroffer by commenting to P, 'You snooze, you lose; the property has been sold.' Prior to 5:00 p.m. on that same day, Ps initialed the offer to purchase form containing D's counteroffer and delivered the form to the Gallery of Homes' office, along with the earnest money deposit of $500. P and P1 filed separate actions. P1 moved for consolidation of the trials, and this was granted. D recognized the validity of the contract with P1. Because of the action for specific performance commenced by Ps, D contended that she was unable to legally convey title to P1. All the plaintiffs filed a motion for summary judgment. P1's motion was granted, and D was ordered to specifically perform the contract to convey the property to P1. Ps appealed. That court unanimously affirmed the trial court's actions. Ps appealed again.