## Facts

- Cohn (buyer) wrote to Kempner (seller) asking for Kempner’s terms for selling a piece of real estate.
- On January 30, 1885, Kempner replied in writing that he would sell the property for $10,000 and indicated that, if acceptable, Cohn should send a deed so Kempner could return it properly acknowledged.
- Kempner’s January 30 letter was delivered to Cohn on February 2 by a third party.
- After receiving the offer, Cohn began preparing to complete the purchase, including having the property’s title reviewed.
- On February 7, Cohn mailed Kempner a written reply stating that he was having the title examined and that, if the title was correct, he would comply with Kempner’s terms.
- Also on February 7, Kempner mailed Cohn a letter stating that Kempner had decided not to sell the property.
- Kempner refused to convey, and Cohn sued for nonperformance, claiming the correspondence created a binding contract.
- A jury awarded damages to Cohn, and Kempner appealed, arguing that no contract had formed and that the damages were improper.

## Issues

1. Whether Cohn’s February 7 response constituted an acceptance forming a contract, or instead was too conditional to operate as an acceptance.
2. Whether Kempner’s attempted revocation was effective when Cohn mailed his acceptance without having received notice that the offer was withdrawn.
3. Whether Cohn accepted within a reasonable time after the offer was delivered.
4. What damages are recoverable for the seller’s failure to convey real property, including whether expenses for examining title (and similar preparation costs) may be recovered beyond the usual “benefit of the bargain” measure.

## Decision

- The Arkansas Supreme Court affirmed judgment for Cohn.
- Cohn’s February 7 letter was treated as an acceptance of the offer’s material terms; the reference to examining title did not prevent contract formation where the buyer otherwise manifested assent to the stated price and sale.
- Kempner’s revocation did not prevent formation of the contract because it was not effective against Cohn before Cohn dispatched his acceptance.
- The acceptance was sent within a reasonable time under the circumstances.
- The court approved recovery of damages consistent with breach of a land-sale agreement, including the ordinary measure of bargain loss and certain reasonable, transaction-related expenses such as costs incurred to examine the title.

## Legal Principles

- An acceptance must assent to the offer’s material terms; language reflecting customary steps in a land sale (such as checking title) does not necessarily convert an acceptance into a counteroffer when the offeree otherwise agrees to the proposed bargain.
- An acceptance sent by mail may be effective upon dispatch; by contrast, a revocation must be communicated to the offeree to be effective.
- Reasonableness of the time for acceptance depends on the transaction and communication method, including the practical time needed for ordinary preliminaries.
- For breach of a contract to convey land, damages generally include the difference between the property’s market value at the time of breach and the contract price, and may also include reasonable expenses that naturally arise from entering the transaction (such as title examination costs), while excluding remote or speculative items.

## Conclusion

Kempner v. Cohn holds that a land-sale contract was formed when the buyer mailed an acceptance agreeing to the seller’s stated price and terms before receiving notice of the seller’s withdrawal, and it affirms an award of damages based on the buyer’s bargain loss together with certain reasonable preparation expenses such as costs incurred to review title.


Kempner v. Cohn, 1 S.W. 869 (1886)