Here’s a contracts quiz for you. Two parties, Southwest and Winterer, are attempting to work out an agreement about ownership of a couple of adjacent parcels of property and Southwest files a petition for partition. After mediation and other discussions, the attorney for Winterer sends the following email to the mediator:
Here is Winterer’s offer:
- Purchase Southwest’s interest in both parcels for $325,000.00;
- Southwest deliver clear marketable fee simple title to both parcels via warranty deed;
- Closing to take place at a title company of our choice within 30 days of signed Agreement;
- Both parties split the past due tax obligations and Southwest pays for ½ of the 2010 taxes, up to date of closing;
- Both parties dismiss their claims in the Partition suit with prejudice;
- Southwest and Winterer execute a document containing mutual releases, non-disclosures and nondisparagement agreements.
And, of course, both parties split your fee.
The mediator forwards the email to Southwest’s attorney and receives the following response:
My client will accept the offer below. We will prepare a settlement agreement and mutual release reflecting the below terms. Thanks for your help.
Winterer refuses to sign a settlement agreement, and Southwest files a motion to enforce the settlement reached by email. Who wins?
If you answered Southwest, you’re right, according to the Missouri Court of Appeals, Eastern District in Southwest Parts Supply, Inc. v. Winterer, which upheld the trial court’s judgment that the email exchange formed a binding settlement agreement.
There’s more to the story
Now, here are a few more facts to make the analysis a little more interesting:
- When Southwest sent Winterer the draft settlement agreement, it included provisions informing Winterer that a lawsuit related to the properties by a third party was pending against Southwest, and that Southwest would agree to indemnify Winterer for any liability arising out of that lawsuit. Winterer had not previously been informed of the litigation.
- That litigation was resolved before the trial court ruled on Southwest’s motion to enforce the email settlement.
- Winterer refused to sign the settlement agreement unless a financing contingency was added.
Does this change your answer? If not, you’re still in agreement with the Missouri Court of Appeals.
Exchange of emails formed binding settlement agreement
At trial and on appeal, Winterer argued that Southwest’s draft settlement agreement constituted a rejection and counter-offer rather than an acceptance because it contained a term that was not in Winterer’s emailed offer to settle — that is, the provisions relating to the third-party litigation involving the properties. While under the common law an acceptance that adds terms to an offer constitutes a counter-offer, the trial and appellate courts ruled that Winterer’s offer had already been accepted by Southwest’s email — thus forming a binding settlement agreement — so the settlement agreement could not have been a counter-offer.
The existence of the third-party litigation, which hadn’t been disclosed to Winterer when the settlement agreement was reached, adds an interesting twist. As the appellate court noted, the undisclosed litigation might have given Winterer grounds for rescission of the settlement agreement, but no such claim was made.
Any take-home tips?
As I discussed in this post about an email exchange that created a binding contract, contracts can be formed by email. In this case, it’s clear that the parties intended to form a contract. But it appears that the email exchange formed a contract before Southwest and Winterer had fully thought through the implications of their settlement — in the case of Southwest, the effect of the third-party litigation on its settlement with Winterer and in the case of Winterer the possibility that it wouldn’t be able to obtain financing to carry out its obligations under the settlement agreement.
It’s common for a deal to be hammered out in concept before lawyers are brought in to document the deal. And the process of negotiating definitive agreements often brings new issues to the surface. But that can be a problem when a binding agreement has already been struck via email correspondence, because adding new terms would require a modification to the contract.
For the contracts pros out there, what tips would you take from this case?