## Facts

- The trustees of a family trust owned a ranch in Lincoln County, Nebraska, and listed it for sale through a real estate broker.
- The listing agreement set a lower commission if the ranch sold to existing tenants (Lydic Brothers) and a higher commission if sold to anyone else.
- Dean Keller submitted a written real estate purchase agreement offering $490,000 and deposited $49,000 in earnest money with the broker.
- Keller’s offer stated it “would be withdrawn if not accepted by July 21 at 5 p.m.” and also provided that “upon execution by Seller, this agreement shall become a binding contract.”
- On July 21 at approximately 4:53 p.m., the sellers signed the agreement and faxed the executed copy to their own agent.
- The agent did not notify Keller until 5:12 p.m., leaving a voicemail stating the offer had been accepted.
- The next day, the tenants submitted a competing offer.
- Before the scheduled closing date, the sellers informed Keller they would not sell to him and then did not appear at closing.
- Keller sued for specific performance and related relief.

## Issues

1. Whether a binding contract was formed when the sellers signed and delivered the executed agreement to their agent before the offer’s 5:00 p.m. deadline, despite notice to Keller after 5:00 p.m.
2. How the clause “upon execution by Seller, this agreement shall become a binding contract” affects any default requirement that acceptance be communicated to the offeror within the stated time.
3. Whether notice after the stated deadline converts the sellers’ acceptance into a counteroffer requiring additional assent by Keller.
4. Whether any waiver analysis is necessary if acceptance was effective upon timely execution.

## Decision

- The Nebraska Supreme Court reversed the summary judgment for the sellers and remanded for further proceedings.
- The court held that a binding contract was formed when the sellers executed the agreement within the stated time limit.
- The court treated the “upon execution by Seller” language as defining the moment acceptance became effective, making later notice to Keller non-dispositive for contract formation.
- Because acceptance occurred before 5:00 p.m., the acceptance was not late and did not operate as a counteroffer.
- With contract formation established, the case returned to the trial court to address remaining matters, including Keller’s request for specific performance.

## Legal Principles

- An offeror may specify the mode and timing of acceptance; when the offer provides that the agreement becomes binding upon the seller’s execution, execution within the stated time can complete acceptance.
- Where the offer fixes execution as the operative act, delayed notice to the offeror after a deadline does not prevent contract formation if execution occurred before the deadline.
- A “late acceptance” operates as a counteroffer only when acceptance is actually untimely under the acceptance mechanism specified by the offer.
- Once timely acceptance is established under the offer’s terms, waiver doctrines directed at excusing untimely acceptance are generally unnecessary to contract formation.

## Conclusion

The Nebraska Supreme Court held that the parties formed an enforceable real estate contract when the sellers signed and delivered the executed agreement to their agent before the offer’s deadline, because the offer made execution—rather than notice—the event that created a binding contract; the matter was remanded to address remedies and other remaining issues.


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