Calvin and Audrey Bones are the trustees of the Calvin R. and Audrey J. Bones Family Trust. The…

Calvin and Audrey Bones are the trustees of the Calvin R. and Audrey J. Bones Family Trust. The trust owned a ranch in Nebraska that the trust decided to sell. On June 11, 1997, the Boneses listed the ranch for sale with Agri Affiliates, a real estate agent. According to the listing agreement between the Boneses and Agri, 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, Dean Keller submitted to Agri a written offer to buy the ranch for $490,000. The offer also stated that it would be withdrawn if not accepted by July 21 at 5 PM. Paragraph 15 of the offer states in part that “upon execution by Seller, this agreement shall become a binding contract.” At 4:53 PM on July 21, the Boneses faxed a signed copy of the offer to Agri. In addition, at 5:12 PM on July 21, Loren Johnson, Agri’s representative, telephoned Keller and left a voicemail message to inform him of the Boneses’ acceptance. On July 22, 1997, Don Lydic, a representative of Lydic Brothers, informed the Boneses and the agent that Lydic Brothers would match Keller’s offer for the ranch. The Boneses wanted to accept Don Lydic’s offer and sell the ranch to Lydic Brothers. Later that same day, Agri asked Keller if he would be willing to release the Boneses from the agreement and “back out” of the deal. Keller refused and asserted that he wanted to go forward with the sale. The Boneses unequivocally informed Keller on December 5, 1997, that they would not sell the ranch to him. After the Boneses failed to close, Keller brought suit against the Boneses, seeking relief for breach of contract. The Boneses asserted that no contract existed (1) because their acceptance was not communicated to the buyer within the time specified in the offer and the attempted acceptance thus became a counteroffer and (2) because the buyer did not communicate to the sellers that he accepted their counteroffer. Are they correct?

 

 

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