123 Misc. 498 | N.Y. Sup. Ct. | 1924
This case turns upon the effect of the acceptance of an offer to exchange real property. The plaintiff made an offer in writing October 30, 1923, to exchange certain real property with the defendant, good until November 6, 1923, at six p. m. Defendant, on November 3, 1923, printed on the back of the offer a rejection of the same and a counter offer, good until November 6, 1923, at six p. m. The plaintiff instead of accepting this counteroffer, made a copy of her original offer and the defendant’s counteroffer, changing the terms of the latter in one respect, signed the same and on November 5, 1923, sent it through the real estate agent handling the matter to the defendant, who rejected it, and then the plaintiff, before the expiration of the time limit, November 6,1923, at six p. m., accepted in writing the defendant’s counter offer of November third and delivered it to the real estate agent who claims to have delivered it to the other party before the time limit expired. Thereafter' the defendant made a contract with a third party and the plaintiff seeks to compel the defendant to specifically perform the alleged contract which she claims resulted from her acceptance, November sixth, of defendant’s offer of November third.
The plaintiff is in error in assuming that her acceptance of November fifth of defendant’s counter offer of November third constituted a contract. The paper which the plaintiff sent to the defendant to sign, November fifth, must be construed as a counter proposition of the plaintiff. It was not a mere invitation to the defendant to change her counter offer, or a request to do so, but constituted in
There are abundant authorities to the effect that a counter offer amounts to a rejection of an offer, but in nearly all of the cases there was no time limit set for acceptance. In such cases the acceptance must be made within a reasonable time, depending upon the circumstances, and when a counter offer is made, it amounts to a rejection and thereafter an acceptance is of no avail. There is no reason why the same rule should not apply to a case where a time limit is prescribed by an offer. There is no distinction to be drawn where the offer must be accepted within a reasonable time and where it must be accepted within a definitely stated time. In either case the offeree cannot make a counter offer without destroying his right thereafter to accept, unconditionally, the original offer. The counter offer conveys the impression that the offer is not satisfactory and that the offeree desires to open negotiations on a counter proposition. There is nothing to prevent the offeree from malting inquiries or requests, but when he goes beyond inquiry and request and makes a modified offer, which if accepted constitutes a contract, he has shut the door to a subsequent acceptance of the original offer. Minneapolis, etc., Ry. v. Columbus Rolling Mill, 119 U. S. 149; 13 C. J. 296, § 110; Ortman v. Weaver, 11 Fed. Rep. 358; Shaw v. Ingram-Day Lumber Co., 152 Ky. 329; L. R. A. 1915D, p. 145.
The plaintiff’s counter offer of November 5, 1923, therefore,
Ordered accordingly.