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Bergey v. HSBC Bank USA - 2010-Ohio-2736 (Ct. App.)


The elements necessary to form a contract include an offer, acceptance, contractual capacity, consideration, a manifestation of mutual assent and legality of object and of consideration.


Appellant Bergey tried to purchase a home from appellee HSBC Bank USA. The home was eventually sold to someone else. Bergey filed a complaint for damages, an injunction, and specific performance against appellees HSBC, its real estate broker, and its real estate agent. The facts alleged that Bergey submitted an offer for the home via a written proposed purchase agreement. Later, in response to the agent's E-mail request to submit his highest and best offer, Bergey responded via E-mail with a higher dollar amount. Although Bergey's offer was not the highest received, it was a cash offer. HSBC Bank's servicer authorized the agent to accept it. She e-mailed tBergey's real-estate agent to inform him that the offer had been accepted and that she would send addenda and instructions. HSBC then accepted a higher cash offer from another purchaser. The Court of Common Pleas, County of Summit (Ohio) granted summary judgment for appellees. Bergey appealed.


Did the trial court err when it granted the motion for summary judgment and concluded that because HSBC did not accept Bergey's offer, no contract was formed, thus there could be no breach of contract or interference with the contract?




On appeal, the court overturned the summary judgment for appellees. First, Bergey's modification of the price term was made at the offer stage and was not invalid under his proposed purchase agreement. Second, Bergey's offer prescribed that the acceptance had to be writing, but it did not prescribe how that written acceptance was to be made. By stating in writing that the seller, HSBC Bank, through its agent, accepted Bergey's offer, HSBC Bank complied with the term of Bergey's offer requiring the acceptance to be in writing. The term did not require the seller to fill in the blank acceptance section of the offer.

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