Gibbs v. American Savings & Loan Assn.

Opinion

LUCAS, P. J.

James and Barbara Gibbs appeal from judgment against them and in favor of American Savings & Loan Association (American Savings) in their action to enforce a purported contract for the sale of real property. We affirm.

Facts

In August 1984, James and Barbara Gibbs (the Gibbses) submitted an offer for $180,000 to American Savings to purchase a house in Woodland Hills which American Savings had taken back through foreclosure. American Savings, through its employee, Dorothy Folkman, agreed that the Gibbs could move into the subject property and rent it until the close of escrow. No action was taken on this offer.

On March 27, 1985, pursuant to a request by Ms. Folkman, the Gibbs submitted a new offer because American Savings could not find their original offer. The purchase price was again $180,000. On the morning of June 6, 1985, the Gibbses received a counteroffer from American Savings containing several additional terms and conditions, but with no mention of purchase price. According to Barbara Gibbs, she immediately drove to her husband’s jobsite where she and her husband signed this counteroffer. She drove to her office, typed an envelope with a certified mail tag, placed the counter-offer in the envelope, and before 10 o’clock that morning, she handed it to the mail clerk at her office, instructing him to mail it for her.

At approximately 11 a.m. that same morning, Barbara Gibbs had a telephone conversation with Dorothy Folkman in which Folkman said the counteroffer was in error, since American Savings had intended to increase the sales price to $198,000. Folkman also advised the Gibbses that because of this error, the counteroffer was revoked.

American Savings took the position that no contract had been formed. The Gibbses insisted that they had accepted the counteroffer before it was revoked and that a contract thus existed. The Gibbses brought the within

[1375]

action for damages, specific performance, breach of contract and declaratory relief. After trial, the court found that Barbara Gibbs did not place the acceptance of the counteroffer in the course of transmission when she gave it to the mail clerk in her office on June 6, 1985; thus there was no acceptance on that date. The postmark on the envelope was June 7, 1985. Dorothy Folkman’s oral revocation of the counteroffer on June 6, 1985, preceded the Gibbses’ acceptance of that counteroffer on June 7 and therefore no contract for sale of the property was ever formed. The Gibbses appeal from the judgment thereafter entered.