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Keller v. Bones - 260 Neb. 202, 615 N.W.2d 883 (2000)


An express contract is proved by evidence of a definite offer and unconditional acceptance. Where the offer requires a promise on the part of the offeree, a communicated acceptance is essential.


Calvin R. Bones and Audrey J. Bones were the Trustees of the Calvin R. and Audrey J. Bones Family Trust, which was the owner of a ranch in Lincoln County, Nebraska. On June 11, 1997, the Boneses listed the ranch for sale with a real estate agent. On July 17, 1997, Dean Keller submitted an offer to buy the ranch to the agent in the form of a "Real Estate Purchase Agreement" (offer) and made an earnest money deposit of $49,000 payable to the agent. The offer was for $490,000 and by its own terms would be withdrawn if not accepted by July 21 at 5 p.m. At 4:53 p.m. on July 21, the Boneses faxed a signed copy of the offer to their agent. Paragraph 15 of the offer stated in part that upon execution by Seller, the agreement shall become a binding contract. Loren Johnson, the agent's representative, did not telephone Keller to inform him of the Boneses' acceptance until 5:12 p.m. on July 21 and did so by leaving a voice message on Keller's answering machine. On July 22, 1997, Don Lydic, a representative of Lydic Brothers, informed the Boneses and the agent that Lydic Brothers would match Keller's offer for the ranch. The Boneses wanted to accept Don Lydic's offer and sell the ranch to Lydic Brothers. Later that same day, the agent asked Keller if he would be willing to release the Boneses from the agreement and "back out" of the deal. Keller refused and asserted that he wanted to go forward with the sale. The Boneses unequivocally informed Keller on December 5, 1997, that they would not sell the ranch to him. After the Boneses failed to close on the sale, Plaintiff Keller brought suit against defendant Trustees, the Boneses, seeking specific performance and other relief. The district court entered summary judgment for the Trustees, finding that no valid contract was formed because the Trustees’ acceptance was not communicated to Keller until 12 minutes after the deadline set forth in the offer had expired.


Was there a valid, perfected contract between Keller and the Boneses?




The Court held that a binding contract was formed by the parties. The Court noted that uncontroverted evidence existed showing that the Boneses’ acceptance was communicated to Keller, thereby establishing a binding contract. The terms of Keller’s offer required only that the offer be signed by the 5:00 p.m. deadline, not that it be communicated prior to that time. The Boneses signed Keller’s offer at 4:53 p.m., prior to the deadline stated in the offer. Hence, the Boneses’ acceptance was properly and timely communicated to Keller so as to form a binding contract.

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