Opinion
No. 77-1090
Decided July 19, 1978.
Contracts — Specific performance — Sale of land — Modification of offer by purchaser — Not a fatal material variance, when.
APPEAL from the Court of Appeals for Portage County.
The trial court to which the evidence was submitted found that a valid contract to purchase the farm land in question came into existence between the plaintiffs Karas (buyers) and the defendants Brogan (sellers) on March 27, 1974; that the defendants Wallbrown, with notice of the outstanding contract, thereafter purchased the farm from Brogan with mortgage money furnished by the defendant Equitable Life Assurance Society, and recorded the deed. Further, finding that the plaintiffs were entitled to specific performance of the contract to purchase and to damages, the trial court ordered both.
Upon appeal, a divided court reversed, concluding that the plaintiffs-appellants' addition of the words the "oil lease has to be cancelled," written upon the offer to sell, was so significant a modification of that offer as to render it a counter-offer rather than an acceptance, and that the offer expired with the passing of the time limit for acceptance contained therein.
The appellants maintain that the words added were not a significant modification since the offer to purchase promised a title "free and clear of all liens and encumbrances" and so required the release of the oil lease in all events.
The matter is before us pursuant to our allowance of a motion to certify the record.
Scavdis, for appellants Pete and Wanda Karas.
Roger F. DiPaslo Co., L.P.A., and Mr. Antonios C. Messrs. Ford Martell and Mr. Donald H. Martell, for appellees Claude and Loretta Brogan.
Messrs. Federico, Myers Enz and Mr. Robert E. Schuerman, for appellees Boyd and Joan Wallbrown.
The rule that acceptance must meet and correspond with the offer in every respect in order for an offer and acceptance to constitute a contract ordinarily presents a question as to whether there is in fact a material variance between the acceptance and the offer rather than any issue as to what principle of contract law applies. Burkhead v. Farlow (1966), 266 N.C. 595, 146 S.E.2d 802.
Here, the trial court found that the offer specifically promised a title "free and clear of all liens and encumbrances" and that the oil lease which the acceptor referred to in his acceptance did not involve a facial qualification of the acceptor's assent to the terms of the offer.
Since an oil lease is an encumbrance, its removal or release would be required under the express language of such offer, and so the additional language cannot be the basis of a conclusion that the acceptance contained a fatal material variance.
See Hale v. Plaine (1863), 14 Ohio St. 417; Tenbusch v. L.K.N. Realty Co. (1958), 107 Ohio App. 133, 137 and the numerous authorities there cited. See, also, 20 American Jurisprudence 2d 653, Covenants, Conditions, and Restrictions, Section 89.
Since the majority Court of Appeals opinion reversing the trial court decision turns purely upon the adverse of this proposition, its judgment is reversed.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.
W. BROWN, J., concurs in the judgment.