where offer to sell farm land promised title “free and clear of all liens and encumbrances,” statement in acceptance that “oil lease has to be cancelled” was not a modification that constituted counteroffer rather than an acceptance since an oil lease is an encumbrance, the removal of which would be required under the language of the offer
How later courts described this case
- where offer to sell farm land promised title “free and clear of all liens and encumbrances,” statement in acceptance that “oil lease has to be cancelled” was not a modification that constituted counteroffer rather than an acceptance since an oil lease is an encumbrance, the removal of which would be required under the language of the offer
Written by the judges who cited it.
The opinion
Per Curiam.
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.
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.
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.