Newby Lewis Kaminsky & Jones
Attorneys for Appellee
Paul J. Peralta
D. Lucetta Pope
Baker & Daniels
South Bend, IN
Appellant (Plaintiff below),
DAGE-MTI, INC., Appellee (Defendant below ).
) Supreme Court No.
) Court of Appeals No.
April 17, 2000
For many years, Sterling operated Dage without significant input from or oversight by
the Board. Over the course of the summer and early fall of
1993, however, Kerrigan took steps to subject Dage management to Board control.
Kerrigan hired New Yorkbased fina
ncial consultant and future Board member Piccolo to assess
the company=s performance. Kerrigan also retained New York attorney Gerald Gorinsky to
represent his interests concerning Dage.
In late October of 1993, the Dage shareholders met in New Jersey to
discuss an offer by Sterling to purchase the Kerrigans
= shares of Dage.
During the course of the meeting, Sterling first informed other directors that Menard,
Inc., had expressed interest in purchasing a 30-acre parcel of land owned by
Dage and located in the Michigan City area. Menard is a Wisconsin
corporation that owns and operates home improvement stores in the Midwestern region of
the United States.
On October 30, 1993, Menard forwarded a formal offer to Sterling pertaining to
the purchase of 10.5 acres of the 30-acre parcel. Upon receipt of
the offer, Sterling did not co
ntact Menard to discuss the terms and conditions
of the offer. Instead, on or about November 4, 1993, he forwarded
the offer to all the Dage directors with a cover note acknowledging that
Board approval was required to accept or reject the offer. Ultimately, this
offer was rejected: Kerrigan, Piccolo, and Gorinsky determined that the offer should
be rejected due to the collective effect of certain sections of the purchase
agreement submitted by Menard, as well as codevelopment obligations that the offer imposed
on Dage. This rejection was communicated to Sterling, and although he viewed
the offer to purchase favorably, he let the offer lapse. Later, he
informed Menard=s agent, Gary Litvin, that members of Dage=s Board objected to various
provisions of the offer.
On November 30, 1993, Sterling called Kerrigan and informed him that Menard would
make a second offer for the entire 30-acre parcel. Sterling presented a
oposed resolution (Aconsent resolution@) to the Board: the first part authorized Sterling
to Aoffer and purchase@ another parcel located immediately to the north of the
30-acre parcel and referred to as the ASimon property@; the second part authorized
Sterling to Aoffer and sell@ the 30-acre parcel. Sterling, Kerrigan, Piccolo, and Gorinsky
discussed the offer and Sterling was told to change the Aoffer and sell@
provision to Ato offer for sale.@ He was also instructed that he
could purchase the Simon property on behalf of Dage, but could only Aoffer@
the 30-acre parcel to Menard at a particular price. Additionally, Sterling was
told that in soliciting offers for the 30-acre parcel, he was not to
negotiate the terms of a sale. Gorinsky reminded Sterling that any offer
from Menard would require Board review and acceptance, and he instructed Sterling to
forward any offer to the Board for approval or rejection.
Finally, Sterling was told that if Menard submitted an agreement with the same
ctionable provisions as the first offer, it would be rejected. Sterling agreed
to follow the instructions of the Board Aas long as I don=t have
to pay for@ Gorinsky=s and Piccolo=s services in reviewing the offer. Based
upon the discussion, Sterling drafted a new resolution, which stated that he was
authorized Ato take such actions as are necessary to offer for sale our
30 acre parcel . . . for a price not less than $1,200,000.@
On December 6, 1993, Sterling informed Piccolo that Menard had agreed to make
nother offer. Piccolo reminded Sterling of his obligation to secure Board approval
of the offer. Menard forwarded a second proposed purchase agreement to Sterling.
This agreement contained the same provisions that the Board found objectionable in
the first proposed agreement. However, this offer differed in that it was
for the purchase of the entire 30-acre parcel for $1,450,000.
During a week-long series of discussions beginning December 14, 1993, and unknown to
any other member of the Dage Board, Sterling negotiated several minor changes in
the Menard agreement and then signed the revised offer on behalf of Dage.
Menard also signed, accepting the offer. Under Paragraph 5(c)(I) of the agreement, Sterling,
as president of Dage, represented as fo
llows: AThe persons signing this Agreement on
behalf of the Seller are duly authorized to do so and their signatures
bind the Seller in accordance with the terms of this Agreement.@ (R.
at 916; Finding of Fact No. 47.) (R. at 1144, 1149.) No
one at Dage had informed Menard that Sterling=s authority with respect to the
sale of the 30-acre parcel was limited to only the solicitation of offers.
Upon learning of the signed agreement with Menard, the Board instructed Sterling to
extricate Dage from the agreement. Later, the Board hired counsel to inform
Menard of its intent to question the agreement
=s enforceability. However, it was
not until March 29, 1994, that Dage first gave notice to Menard of
Menard ultimately filed suit to require Dage to specifically perform the agreement and
to secure the payment of damages. Menard initially filed a motion for
partial summary jud
gment, which was denied. Following a bench trial, the trial
court ruled in favor of Dage. The Court of Appeals affirmed, finding
that Sterling did not have the express or apparent authority to bind the
corporation in this land transaction. Menard, Inc. v. Dage-MTI, Inc., 698 N.E.2d
1227 (Ind. Ct. App. 1998).
The trial court =s judgment in this case is embodied in Findings of Fact and Conclusions of Law entered pursuant to Trial Rule 52(A). The findings or judgment are not to be set aside unless clearly erroneous, and due regard is to be given to the trial court=s ability to assess the credibility of witnesses. See T.R. 52(A); Shell Oil Co. v. Meyer, 705 N.E.2d 962, 972 (Ind. 1998), reh=g denied. In our review, we first consider whether the evidence supports the factual findings. See id.; Estate of Reasor v. Putnam Co., 635 N.E.2d 153, 158 (Ind. 1994), reh=g denied. Second, we consider whether the findings support the judgment. See Shell Oil Co., 705 N.E.2d at 972; Estate of Reasor, 635 N.E.2d at 158. As we have noted several times in recent cases, while we defer substantially to findings of fact, we do not do so to conclusions of law. See, e.g., Haseman v. Orman, 680 N.E.2d 531, 533 (Ind. 1997); State v. Van Cleave, 674 N.E.2d 1293, 1295-96 (Ind. 1996), reh=g granted in part, 681 N.E.2d 181 (Ind. 1997). Here, we find that the evidence supports the trial court=s findings of fact. However, its conclusions of law employed principles of Aactual authority@ and Aapparent authority@ when they should have employed principles of Ainherent authority.@ A judgment is clearly erroneous if it relies on an incorrect legal standard. Shell Oil Co., 705 N.E.2d at 972.
Two main classifications of authority are generally recognized:
Aactual authority@ and Aapparent authority.@
Actual authority is created Aby written or spoken words or other conduct
of the principal which, reasonably interpreted, causes the agent to believe that the
principal desires him so to act on the principal=s account.@ Scott v.
Randle, 697 N.E.2d 60, 66 (Ind. Ct. App. 1998), transfer denied; see Restatement
(Second) of Agency '' 7, 33 (1958). Apparent authority refers to a third
party=s reasonable belief that the principal has authorized the acts of its agent,
Pepkowski v. Life of Indiana Ins. Co., 535 N.E.2d 1164, 116667 (Ind.1989); it
arises from the principal=s indirect or direct manifestations to a third party and
not from the representations or acts of the agent, id.; Drake v. MaidRite
Co., 681 N.E.2d 734, 73738 (Ind. Ct. App. 1997), reh=g denied.
On occasion, Indiana has taken an expansive view of apparent authority, including within
the discussion the concept of
Ainherent agency power.@ See Koval v. Simon
Telelect, Inc., 693 N.E.2d 1299, 1301 (Ind. 1998) (certifying answer to a federal
court that retention of an attorney confers the inherent power on that attorney
to bind the client to an in court proceeding); Storm v. Marsischke, 159
Ind. App. 136, 140-41, 304 N.E.2d 840, 843-44 (Ind. Ct. App. 1973).
A>Inherent agency power is a term used . . . to indicate the power of an agent which is derived not from authority, apparent authority or estoppel, but solely from the agency relation and exists for the protection of persons harmed by or dealing with a servant or other agent.=@ Koval, 693 N.E.2d at 1304 (Ind. 1998) (quoting Restatement (Second) of Agency ' 8A (1958)) (omission in original) (emphasis added)). See footnote This A>status based= . . . [form of] vicarious liability rests upon certain important social and commercial policies,@ primarily that the A>business enterprise should bear the burden of the losses created by the mistakes or overzealousness of its agents [because such liability] stimulates the watchfulness of the employer in selecting and supervising the agents.=@ In re Atlantic Fin. Management, Inc., 784 F.2d 29, 32 (1st Cir. 1986) (second alteration in original) (quoting W. Seavey, Handbook of the Law of Agency ' 91 (1964)), cert. denied, 481 U.S. 1072 (1987). And while Arepresentations of the principal to the third party are central for defining apparent authority,@ the concept of inherent authority differs and Aoriginates from the customary authority of a person in the particular type of agency relationship so that no representations beyond the fact of the existence of the agency need be shown.@ Cange v. Stotler & Co., 826 F.2d 581, 591 (7th Cir. 1987) (citing Restatement (Second) of Agency ' 161 cmt. b (1958)) (stating that the Aplaintiff need not prove any actions on [defendant=s] part besides its allowing [an employee] to act as its agent for handling plaintiff=s account because the trier of fact could find [the employee=s] statements within his inherent authority@).
Cange, the Seventh Circuit explained this concept=s genesis:
Judge Learned Hand articulated this concept of inherent agency power when he upheld a jury verdict for plaintiff based on a contract the jury found to be an unconditional engagement for a singing tour despite the principal =s instructions to its agent to engage the singer only for such recitals as he could later persuade record dealers to book her for, instructions which were not told to plaintiff. Kidd v. Thomas A. Edison, Inc., 239 F. 405 (S.D.N.Y.), aff=d, 242 F. 923 (2d Cir. 1917). He reasoned that the scope of an agency must be measured Anot alone by the words in which it is created, but by the whole setting in which those words are used, including the customary powers of such agents@ and thus the contract was enforceable because Athe customary implication would seem to have been that [the agent=s] authority was without limitation of the kind here imposed.@ Id. 239 F. at 406. The principal benefits from the existence of inherent authority because A[t]he very purpose of delegated authority is to avoid constant recourse by third persons to the principal, which would be a corollary of denying the agent any latitude beyond his exact instructions.@ Id. 239 F. at 408; see Restatement (Second) of Agency '' 8A comment a, 161 comment a (1958).
Cange, 826 F.2d at 590-91 (alterations in original).
We find the concept of inherent authority
C rather than actual or apparent
authority C controls our analysis in this case. Menard did not negotiate
and ultimately contract with a lower-tiered employee or a prototypical Ageneral@ or Aspecial@
agent, with respect to whom actual or apparent authority might be at issue.
Menard dealt with the president of the corporation, whom A>A[t]he law recognizes
. . . [as one of] the officers [who] are the means, the
hands and the head, by which corporations normally act.@=@ Community Care Ctrs., Inc.
v. Indiana Dep=t of Pub. Welfare, 468 N.E.2d 602, 604 (Ind. Ct. App.
1984) (alterations added) (quoting Fidelity & Casualty Co. v. Carroll, 186 Ind. 633,
635-36, 117 N.E. 858, 859 (1917) (quoting in turn 2 Thompson, Corporations '
1387 (2d ed. 1910))), transfer denied; see also Burger Man, Inc. v. Jordan
Paper Prods., Inc., 170 Ind. App. 295, 311-13, 352 N.E.2d 821, 831-32 (1976)
(AWhen the president and general manager does an act within the domain of
the general objects or business of the corporation, and within the scope of
the usual duties of the chief officer, it will be presumed that he
had the authority to do it, and whoever would assert the contrary must
prove it.@). In so finding, we consider significant the A>Adistinction . .
. between a corporate act, performed through the intermediation of a person specially
empowered to act as its agent, and a like act done immediately by
the corporation through its executive or administrative officers, which may be termed its
inherent agencies.@=@ Community Care Ctrs, Inc., 468 N.E.2d at 604 (emphasis added) (quoting
Fidelity & Casualty Co., 186 Ind. at 635-36, 117 N.E. at 859 (quoting
in turn 2 Thompson, Corporations ' 1387 (2d ed. 1910))).
Our determination that the inherent agency concept controls our analysis does not end
the inquiry, however. The Restatement (Second) of Agency
'161 provides that
an agent=s inherent authority
subjects his principal to liability for acts done on his account which [(1)] us ually accompany or are incidental to transactions which the agent is authorized to conduct if, although they are forbidden by the principal, [(2)] the other party reasonably believes that the agent is authorized to do them and [(3)] has no notice that he is not so authorized. See footnote
Distilled to its basics, we find that Sterling had inherent authority here if: (1) first, Sterling acted within the usual and ordinary scope of his authority as president; See footnote (2) second, Menard reasonably believed that Sterling was authorized to contract for the sale and purchase of Dage real estate; See footnote and (3) third, Menard had no notice that Sterling was not authorized to sell the 30-acre parcel without Board approval. See footnote See also Koval, 693 N.E.2d at 1304 n.7 (quoting Restatement (Second) of Agency ' 161).
supra, the trial court entered findings of fact and conclusions of
law pursuant to Ind. Trial Rule 52. Having accepted the findings of
fact, we review them to see if they will support a finding that
Sterling had the inherent authority as president to bind Dage in this transaction.
As to whether Sterling acted within the usual and ordinary scope of his
authority as president, the trial court found that Sterling, a director and substantial
shareholder of Dage, had served as Dage
=s president from its inception; had managed
the affairs of Dage for an extended period of time with little or
no Board oversight; and had purchased real estate for Dage without Board approval.
(R. at 911, 912; Findings of Fact Nos. 7-9, 16.) However,
the trial court reached the conclusion that A[t]he record persuasively demonstrates that the
land transaction in question was an extraordinary transaction@ for Dage, which manufactures electronic
video products. (R. at 921; Conclusion of Law No. 11.) Thus, the
court concluded that ASterling was not performing an act that was appropriate in
the ordinary course of Dage=s business.@ Id.
We initially note that the Restatement looks at whether the acts Ausually accompany or are incidental to transactions which the agent is authorized to conduct.@ Restatement (Second) of Agency '161 (emphasis added). On the other hand, our analysis of inherent agency in Koval was focused on whether A>a general agent . . . acted within the usual and ordinary scope of the business in which he was employed.=@ 693 N.E.2d at 1304 (quoting Farm Bureau Mut. Ins. Co. v. Coffin, 136 Ind. App. 12, 16, 186 N.E.2d 180, 182 (1962) (emphasis added)) (concerning an attorney=s inherent agency power in court proceedings). There is a difference.
The Restatement looks at the agent
=s office or station in the company to
gauge the scope of the agent=s authority, whereas our analysis in Koval looked
to the purpose and scope of the business in which the general agent
(i.e., attorney) was employed. We find the Restatement, which is focused Asolely
[on] the agency relation,@ is more appropriate in the current situation involving corporate
officers, who are Anatural persons who hold and administer the offices of the
corporation.@ Community Care Centers, Inc., 468 N.E.2d at 604.
Given that the trial court found that Sterling, as president of the company since its i nception, had managed its affairs for an extended period of time with little or no Board oversight and, in particular, had purchased real estate for Dage in the past without Board approval, we conclude that Sterling=s actions at issue here were acts that Ausually accompany or are incidental to transactions which [he was] authorized to conduct.@ Restatement (Second) of Agency ' 161.
Next, we must determine whether Menard reasonably believed that Sterling was a
contract for the sale and purchase of Dage real estate. While Sterling=s
apparent authority to bind Dage was Avitiated@ by Menard=s knowledge that the sale
of Dage real estate required Board approval, see Menard, Inc., 698 N.E.2d at
1232, this information did not defeat Sterling=s inherent authority as Dage president to
bind the corporation in a Asetting@ where he was the sole negotiator, see
Cange, 826 F.2d at 591.
Because the inherent agency theory
Aoriginates from the customary authority of a person
in the particular type of agency relationship,@ id., we look to the agent=s
indirect or direct manifestations to determine whether Menard could have Areasonably believe[d]@ that
Sterling was authorized to contract for the sale and purchase of Dage real
estate. Koval, 693 N.E.2d at 1304 n.7.
And considering that the
Aagent@ in this case is a general officer of the corporation (as opposed
to an Aappointed general agent@ or Acompany general manager@), we find that Menard
Ashould not be required to scrutinize too carefully the mandates of [this] permanent
. . . agent . . . who [did] no more than what
is usually done by [a corporate president
].@ Restatement (Second) of Agency ' 161
Here, the facts establish that Menard reasonably believed that Sterling was authorized to
contract for the sale and purchase of Dage real estate. We begin
with the premise that
A>the acts of a corporation done through its officers
are acts done per se.=@ Community Care Ctrs., Inc., 468 N.E.2d at
604 (emphasis omitted) (quoting Fidelity & Casualty Co., 186 Ind. at 635-36, 117
N.E. at 859 (citing in turn 2 Thompson, Corporations ' 1387 (2d ed.
1910))). Next, we note that at all times ASterling held himself out as
president of Dage.@ (R. at 919; Finding of Fact No. 67.) In
fact, ASterling ha[d] served as president of Dage since its inception@; as noted
in the preceding section, he was a substantial shareholder and member of the
six-person Board of Directors; he had managed the affairs of Dage for an
extended period of time with little or no Board oversight; and he had
purchased real estate for Dage without Board approval. (R. at 911, 912;
Findings of Fact Nos. 7-9, 16.) And although Aearly in the transaction,
Sterling advised [Menard] that he was required to go back to his >partners=
to obtain authority to sell the entire thirty acres[, Sterling later] confirmed that
he had the authority from his Board of Directors to proceed.@ (R.
at 922-23; Conclusion of Law No. 19.)
We find it reasonable that Menard did not question the corporate president
that he had Aauthority from his Board of Directors to proceed@ with the
land transaction. Id.; see Federal Sav. & Loan Ins. Corp. v. Shearson-American Express,
Inc., 658 F. Supp. 1331, 1339 (D.P.R. 1987) (A[T]he authority of an agent
to do certain acts may reasonably be inferred from the continuity of the
acts themselves.@); McIntosh v. Vector Properties, Inc., 889 P.2d 911, 914 (Ok. Ct.
App. 1995) (finding that defendant corporation=s actions led to plaintiff=s reasonable belief that
agent could bind corporation in commission-sharing agreement, where the president of the corporation
knew that the agent was holding himself out as a vice-president and acknowledged
that the agent, with the corporation=s permission, had the authority to enter into
the agreement); R.H. Kyle Furniture Co. v. Russell Dry Goods Co., 340 S.W.2d
220, 225 (Ky. 1960) (finding that persons dealing with corporations through their managers
or superintendents are justified in relying upon the apparent or implied authority of
We also find it reasonable for Menard not to scrutinize Sterling
=s personal Aacknowledge[ment]
that he signed the agreement for the purchase and sale of the real
estate by authority of Dage=s board of directors.@ (R. at 919; Finding of
Fact No. 67). We believe this especially to be the case where
(1) Sterling himself was a member of the Board, (R. at 912; Finding
of Fact No. 16); (2) the agreement contained an express representation that A[t]he
persons signing this Agreement on behalf of the Seller are duly authorized to
do so and their signatures bind the Seller in accordance with the terms
of this Agreement,@ (R. at 916; Finding of Fact No. 47) (R.
at 1144, 1149); and (3) Menard was aware that Dage=s corporate counsel, Patrick
Donoghue, was involved in the review of the terms of the agreement.
(R. at 1133-34, 1141, 1391).
Finally, we consider whether Menard had notice that Sterling was not authorized to
sell the 30-acre parcel without Board approval. The record does not indicate
that Menard was aware of the existence of the consent resolution, much less
that it limited Sterling
=s authority as president. Nor was there evidence that either
the Board or Sterling informed Menard that Sterling=s authority with respect to the
sale of the 30-acre parcel was limited to only the solicitation of offers.
And, as discussed supra, Sterling personally acknowledged that he signed the agreement by
authority of Dage=s Board of Directors, of which he was a member.
It is true, as the Court of Appeals noted, that Menard was advised
early in the transa
ction that Sterling had to go to the Board to
obtain approval. Menard, 698 N.E.2d at 1232 (citing Conclusions of Law Nos.
16-22). This knowledge would have vitiated the apparent authority of a lower-tiered
employee or a prototypical general or special agent.
But we do not
find it sufficient notice that Sterling, an officer with inherent authority, was not
authorized to bind Dage at the closing.
The trial court found that Sterling signed the agreement with Menard during the
week of December 14, 1993; that he represented in the agreement that he
was authorized to sign it and that his signature bound Dage; and that
=s lawyers contacted Menard on March 29, 1994, it Awas the first
notice given by Dage to Menard that there was any issue regarding the
enforceability of the agreement.@ (R. at 916, 919; Findings of Fact 46,
47, 63.) Indeed, Sterling wrote to Menard on February 7, 1994, indicating that
Dage was performing as required by the agreement. (R. at 2059.)
We conclude that Menard had no notice that the Board had limited Sterling=s
authority with respect to 30-acre parcel. See, e.g., Avery v. Kane Gas
Light & Heating Co., 403 F. Supp. 14 (W.D. Pa. 1975) (finding the
corporation bound by instruments signed by its president and treasurer despite bylaws denying
such officers= authority where party dealing with the corporation had no actual notice
of such bylaws); Filter v. Vernonia, 669 P.2d 350 (Or. Ct. App. 1983)
(determining that unless the principal has by some action given notice to third
parties of the limitations on the agent=s authority, a managing agent is presumed
to have the authority to do those acts which managing agents normally do);
cf. Truck Crane Serv. Co. v. Barr-Nelson, Inc., 329 N.W.2d 824 (Minn. 1983)
(finding that where a third party had been notified in writing by the
president of the corporation that the corporation denied liability for certain services, the
third party was put on inquiry notice as to the authority of any
corporate employee to countermand such a position); Wachovia Bank v. Bob Dunn Jaguar,
Inc., 450 S.E.2d 527 (N.C. Ct. App. 1994) (holding that a vice-president lacks
the authority to execute documents and thereby bind the corporation when the defendant
corporation=s president met with the plaintiff bank and informed it that no one
other than the president may execute guaranties and that any guaranty required the
president=s approval and signature).
Koval, this Court said: Aif one of two innocent parties must suffer
due to a betrayal of trust C either the principal or the third
party C the loss should fall on the party who is most at
fault. Because the principal puts the agent in a position of trust,
the principal should bear the loss.@ Koval, 693 N.E.2d at 1304 (citing Farm
Bureau Mut. Ins. Co., 136 Ind. at 18, 186 N.E.2d at 183).
That maxim has particular resonance here. The record fails to reveal a single
ative act that Dage took to inform Menard of Sterling=s limited authority with
respect to the 30-acre parcel, and the Board did not notify Menard that
Sterling had acted without its authority until 104 days after it learned of
Sterling=s action. (R. at 917, 919; Findings of Fact Nos. 52, 63.)
By this time, Sterling had taken additional steps to close the transaction.
(R. at 918; Finding of Fact No. 56.) Dage=s failure to
act should not now form the basis of relief, penalizing Menard and depriving
it of its bargain. See Federal Savings & Loan Ins. Corp., 658
F. Supp. at 1340 (AFactors such as duty of care required to exercise
a high standard of supervision and whether the employee was a high level
officer or director of the firm are also relevant [in establishing an employer=s
vicarious liability under an agency theory].@).
Michael A. Wukmer Paul J. Peralta
John J. Morse D. Lucetta Pope
Indianapolis, Indiana South Bend, Indiana
MENARD, INC., )
Appellant (Plaintiff Below), ) 46S03-0004-CV-272
) in the Supreme Court
DAGE-MTI, INC., ) in the Court of Appeals
Appellee (Defendant Below). )
April 17, 2000
I think todays decision will leave most corporate lawyers wondering what the law
A board of directors authorizes the president to sell some real estate but
requires that the sale be submitted to the board for approval or disapproval.
The president understands that he must submit any sale to the board.
He tells the potential buyer that he must submit it.
buyer knows that its offer must be submitted to the board after the
president signs the sales agreement.
The agreement is in fact submitted to
the board and disapproved. Our Court holds that the agreement is binding
The majority calls this an expansive view of apparent autho
rity. Slip op.
at 7. Facially, this seems like an understatement.
On the other hand, the Court embarks upon its discussion of inherent authority,
which it rightfully describes as a specie of apparent authority, after endorsing the
conclusions of the trial court and Court of Appeals that the corporations president
did not possess apparent authority to sell the land without board a
In the end, it is difficult to know how lawyers will advise their clients after todays decision. Where all parties to a corporate transaction understand that board approval is required and that it may or may not be forthcoming, the black letter law cited in todays opinion points toward a conclusion that the buyers offer was not accepted by the seller.
While I agree with the general legal principles laid out by the majority, those principles seem undercut by the resolution of this case.