Harold Washington College Brand Persona Discussion

BRIEF: Lefkowitz v. Great Minneapolis Surplus Store – Case 10-2ISSUE: Did the Great Minneapolis Surplus Store advertisement constitute a valid
offer, and if so, did the plaintiff’s actions show an acceptance?
FACTS: On two separate Saturdays following the publication of ads for a store, a
man went to the store and presented himself at the appropriate counter to buy a coat
and stole that were advertised. He indicated his readiness to pay the sale price of $ 1.
On both occasions, the store refused to sell the merchandise to the man, stating on the
first occasion that by a “house rule” the offer was intended for women only and sales
would not be made to men, and on the second visit that the knew the store’s house
rules. Damages were awarded to the man for breach of contract. The case was
appealed to the Supreme Court of Minnesota.
RULE: Advertisements are generally not considered to be offers. However, where the
offer is clear, definite, and explicit, and leaves nothing open for negotiation, it
constitutes an offer, acceptance of which will complete the contract.
CONCLUSION:
The Court determined that the offer by defendant of the sale of the item was clear,
definite, and explicit, and left nothing open for negotiation. The man, having
successfully managed to comply with the terms of the advertisement, and having
offered the stated purchase price of the article, was entitled to performance on the part
of the store. The court here agreed with the trial court’s holding that the conduct of the
parties created sufficient mutuality of obligation to constitute a contract of sale.Such advertisements have been construed as an invitation for
a certain quantity of them.
an offer of sale on the terms stated, which offer, when
received, may be accepted or rejected and which therefore
does not become a contract of sale until accepted by the
seller; and until a contract has been so made, the seller may
modify or revoke such prices or terms. [Citations.] *** On
CASE
10-3
having offered the stated purchase price of the article, was
advertisement, and
entitled to performance on the part of the defendant. We
think the trial court was correct in holding that there was in
the conduct of the parties a sufficient mutuality of obligation
to constitute a contract of sale.
Affirmed.
Effective Moment
Kauger, J. noie
[In 1977, the defendant, Kelly-Moore Paint Company, entered
into a fifteen-year commercial lease with the plaintiff, Osprey,
for a property in Edmond, Oklahoma. The lease contained two
five-year renewal options. The lease required that the lessee give
notice of its intent to renew at least six months prior to its expi-
ration. It also provided that the renewal “may be delivered
either personally or by depositing the same in United States
mail, first class postage prepaid, registered or certified mail,
return receipt requested.” Upon expiration of the original fif-
teen-year lease, Kelly-Moore timely informed the lessor by cer-
tified letter of its intent to extend the lease an additional five
years. The first five-year extension was due to expire on August
31, 1997. On the last day of the six-month notification deadline,
Kelly-Moore faxed a letter of renewal notice to Osprey’s office
at 5:28 P.M. In addition, Kelly-Moore sent a copy of the faxed
renewal notice letter by Federal Express that same day. Osprey
denies ever receiving the fax, but it admits receiving the Federal
Express copy of the notice on the following business day.
***
OSPREY L.L.C. v. KELLY-MOORE PAINT CO., INC.
Supreme Court of Oklahoma, 1999
1999 OK 50, 984 P.2d 194
Osprey rejected the notice, asserting that it was late, and it filed
an action to remove the defendant from the premises. After a
trial on the merits, the trial court granted judgment in favor of
Kelly-Moore, finding that the faxed notice was effective. Osprey
appealed. The Court of Civil Appeals reversed, determining that
the plain language of the lease required that it be renewed
by delivering notice either personally or by mail, and that
Kelly-Moore had done neither. Kelly-Moore appealed.]
The precise issue of whether a faxed or facsimile delivery
of a written notice to renew a commercial lease is sufficient
to exercise timely the renewal option of the lease is one of
first impression in Oklahoma. Neither party has cited to a
case from another jurisdiction which has decided this ques-
tion, or to any case which has specifically defined “personal
delivery” as including facsimile delivery.
* * *
Osprey argues that: (1) the lease specifically prescribed
limited means of acceptance of the option, and it required
that the notice of renewal be delivered either personally or204
sent by United States mail, registered or certified; (2) Kelly-
The purpose of providing notice by personal delivery or
Moore failed to follow the contractual requirements of the registered mail is to insure the delivery of the notice, and to
lease when it delivered its notice by fax; and (3) because
the terms for extending the lease specified in the contract
were not met, the notice was invalid and the lease expired on
August 31, 1997. Kelly-Moore counters that: (1) the lease
by the use of the word “shall” mandates that the notice be
written, but the use of the word “may” is permissive; and
(2) although the notice provision of the lease permits deliv-
ery personally or by United States mail, it does not exclude
other modes of delivery or transmission which would include
delivery by facsimile. * * *
*
A lease is a contract and in construing a lease, the usual
rules for the interpretation of contractual writings apply. * *
Language in a contract is given its plain and ordinary
meaning, unless some technical term is used in a manner
meant to convey a specific technical concept. A contract
term is ambiguous only if it can be interpreted as having two
different meanings. *** The lease does not appear to be am-
biguous. “Shall” is ordinarily construed as mandatory and
“may” is ordinarily construed as permissive. The contract
clearly requires that notice “shall” be in writing. The provi-
sion for delivery, either personally or by certified or regis-
tered mail, uses the permissive “may” and it does not bar
other modes of transmission which are just as effective.
CASE
10-4
Sweeney, C. J.
yeage
David and Elizabeth Kidd’s dog bit Mikaila Sherrod.
Mikaila through her guardian ad litem (GAL) made a claim
for damages. On June 14, 2005, the Kidds offered to settle
the claim for $31,837. On July 12, Mikaila through her GAL
sued the Kidds. On July 20, the Kidds bumped their offer to
$32,843.
The suit was subject to mandatory arbitration. The parties
proceeded to arbitration on April 28, 2006. On May 5, the
arbitrator awarded Mikaila $25,069.47. On May 9, the GAL
wrote to the Kidds and purported to accept their last offer of
year before.
$32,843, made the
The GAL on Mikaila’s behalf moved to enforce the settle-
ment agreement. The court concluded the offer was properly
accepted because it had not been withdrawn. And it entered
judgment in the amount of the first written offer.
Duration of Offers
TIA SHERROD v. KIDD 5.1IYA920
Court of Appeals of Washington, Division 3, 2007
155 P.3d 976
* *
The Kidds contend that the trial court did not consider that
implicit in its settlement offer was the GAL’s forbearance in
PART 2 CONTRACTS
settle any dispute which might arise between the parties con-
cerning whether the notice was received. A substituted
method of notice which performs the same function and
serves the same purpose as an authorized method of notice is
not defective. Here, the contract provided that time was of
the essence. Although Osprey denies that it ever received the
fax, the fax activity report and telephone company records
confirm that the fax was transmitted successfully, and that it
was sent to Osprey’s correct facsimile number on the last day
of the deadline to extend the lease. The fax provided immedi
ate written communication similar to personal delivery and,
like a telegram, would be timely if it were properly transmit-
ted before the expiration of the deadline to renew. Kelly-
Moore’s use of the fax served the same function and the
same purpose as the two methods suggested by the lease and
it was transmitted before the expiration of the deadline to
renew. Under these facts, we hold that the faxed or facsimile
delivery of the written notice to renew the commercial lease
was sufficient to exercise timely the renewal option of the
lease.
***
COURT OF CIVIL APPEALS OPINION VACATED;
TRIAL COURT AFFIRMED.
proceeding with the arbitration to its conclusion. The GAL
argues that the offer was not conditioned upon the arbitration
proceeding in any manner. And the offer provided no time
limit for its acceptance. The GAL further claims that the con-
sideration to create an enforceable agreement-her promise to
dismiss her lawsuit-was the same when she accepted it as
when it was offered. Her consideration included relinquishing
her right to request a trial de novo.
02190 190
An offer to form a contract is open only for a reasonable
time, unless the offer specifically states how long it is open
for acceptance. [Citations.] [I]n the absence of an accep-
tance of an offer within a reasonable time (where no time
limit is specified), there is no contract.” [Citation.]
How much time is reasonable is usually a question of fact.
[Citation.] But we can decide the limits of a reasonable time
if the facts are undisputed. [Citation.] And here the essential
facts are not disputed.
A reasonable time “is the time that a reasonable
in
person
the exact position of the offeree would believe to besatisfactory to the offeror.” [Citation.] “The purpose of the
offeror, to be attained by the making and performance of the
contract, will affect the time allowed for acceptance, if it is or
should be known to the offeree. In such case there is no
power to accept after it is too late to attain that purpose.”
[Citation.] A reasonable time for an offeree to accept an offer
depends on the “nature of the contract and the character of
the business in which the parties were engaged.” [Citation.]
Implicit in an offer (and an acceptance) to settle a personal
injury suit is the party’s intent to avoid a less favorable result
at the hands of a jury, a judge or, in this case, an arbitrator.
205
The defendant runs the risk that the award might be more
than the offer. The plaintiff, of course, runs the risk that the
award might be less than the offer. Both want to avoid that
risk. And it is those risks that settlements avoid.
It was certainly subject to appeal but nonetheless set by a fact
Here, the value of this claim was set after arbitration.
finder.
von asunq sdi ind
This offer expired when the arbitrator announced the
award and was not subject to being accepted.
510391
We reverse the decision of the trial judge to the contrary.
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