## Facts

- Hazel Elizabeth Miller listed her Charlotte, North Carolina property for sale through realtor Gladys Hawkins; broker Richard Byer showed the property to Michael M. Normile and Wawie Kurniawan.
- Normile and Kurniawan submitted a written offer on a standard “Deposit Receipt and Contract” form stating it “must be accepted on or before 5:00 p.m. Aug. 5th 1980,” with a signed copy to be returned to the purchaser.
- Miller did not sign the offer as written. She initialed and signed changes that altered material terms, including increasing earnest money and down payment, reducing the stated mortgage principal, shortening the seller-financed loan term, and adding a purchaser-qualification contingency.
- Byer presented Miller’s signed, modified document to Normile the same evening; Normile did not accept immediately and believed he effectively had a first opportunity to buy.
- During the early hours of August 5, Byer obtained an offer from Lawrence J. Segal on terms similar to Miller’s modified document; Miller accepted Segal’s offer.
- Around 2:00 p.m. on August 5, Byer informed Normile that Miller’s counteroffer was no longer available and that the property had been sold.
- After receiving that notice, but before 5:00 p.m., Normile attempted to accept Miller’s modified document by initialing the changes and tendering the increased earnest money deposit; Miller refused, having already contracted with Segal.

## Issues

1. Whether Miller’s signed, modified document was an acceptance of Normile’s original offer or a counteroffer rejecting it.
2. Whether the original form’s stated acceptance deadline carried over to Miller’s counteroffer as an enforceable option to keep the counteroffer open until 5:00 p.m. on August 5.
3. Whether Normile could form a binding contract by accepting after receiving notice that the property had been sold.

## Decision

- The Supreme Court of North Carolina affirmed judgment for Segal and rejected Normile’s claim for specific performance.
- Miller’s signed modifications were a counteroffer that rejected Normile’s original offer.
- The counteroffer did not constitute an option contract because no separate consideration made it irrevocable until the stated time.
- Normile’s power of acceptance terminated upon receiving notice that Miller had sold the property; his later attempted acceptance was ineffective.
- Segal’s contract with Miller was valid and enforceable.

## Legal Principles

- A purported acceptance that changes material terms is a counteroffer and operates as a rejection of the original offer.
- An offer (including a counteroffer) is revocable at any time before acceptance unless an option contract supported by separate consideration makes it irrevocable.
- A time-for-acceptance clause, without separate consideration and clear manifestation of an option, does not prevent revocation of a counteroffer.
- Revocation is effective when the offeree receives notice; notice may be conveyed indirectly through a reliable intermediary.
- A binding contract requires mutual assent to the same terms; no contract forms if the counteroffer is revoked before acceptance.

## Conclusion

The court held that the seller’s material changes created a counteroffer, not an acceptance, and that the counteroffer remained revocable because no option consideration was given; once the buyer received notice that the property had been sold, the buyer could not later accept to form a contract, and the subsequent purchaser’s contract controlled.


Normile v. Miller, 313 N.C. 98, 326 S.E.2d 11 (N.C. 1985)