concurrence">B. Robbins, Judge,

concurring. While I agree with the majority’s opinion that we must reverse this appeal, I would do so under a different rationale. There is no dispute as to what occurred when appellants Smith bought the subject 10.5-acre parcel of property in 1987, which could be fairly paraphrased as follows: The Smiths represented to their daughter and appellee Malone that the Smiths would convey one-half of this parcel to the Malones upon payment by the Malones of one-half of the purchase price.

This representation or promise was no more than an offer. This offer invited acceptance by performance, not by a reciprocal promise. For that matter, at no time did either party or the trial court suggest that the Malones had promised to buy the property. The performance that would have constituted acceptance of the Smiths’ offer would have been payment of one-half of the sum that the Smiths had paid for the whole parcel. See Restatement (Second) of Contracts § 50(2). While Mr. Malone contended that he thought his wife had paid this price to the Smiths, the Smiths denied it and the trial court found from the bench that the Malones had not “paid one dime towards that agreement.”

Although an offeror and offeree may contract to hold an offer open, thus creating an option contract that is independent of the object of the outstanding offer, here there was no evidence to indicate that such an option was either contemplated or contracted for. Consequently, the Smiths’ offer to the Malones could be withdrawn at any time before acceptance, and such withdrawal could not have been more clearly made than Mrs. Smith did when Mr. Malone inquired about having the property surveyed and divided. Whereupon, Mrs. Smith advised him that she was not surveying anything, was not signing anything, and did not want anyone on her property.

Therefore, on our de novo review I would hold that the offer to sell one-half of the property was not accepted within a reasonable time and certainly not before its withdrawal was communicated by Mrs. Smith to Mr. Malone. Inasmuch as there was no contract, the Statute of Frauds is not applicable and need not be invoked.

Citation profile

How this case has been treated — in progress