Parker Whedon, Charlotte, for plaintiffs-appellants.

Levine & Levine by Miles S. Levine, Charlotte, for plaintiff-appellee.

FRYE, Justice. Defendant Hazel Miller owned real estate located in Charlotte, North Carolina. On 4 August 1980, the property was listed for sale with a local realtor, Gladys Hawkins. On that same day, Richard Byer, a real estate broker with the realty firm Gallery of Homes, showed the property to the prospective purchases, Plaintiffs Normile and Kurniawan. Afterwards, Byer helped plaintiffs prepare a written offer to purchase the property. A Gallery of Homes form, entitled DEPOSIT RECEIPT AND CONTRACT FOR PURCHASE AND SALE OF REAL ESTATE, containing blanks for the insertion of terms pertinent to the purchases offer, was completed in quadruplicate and signed by Normile and Kurniawan. One specific standard provision in Paragraph 9 included a blank that was filled in with the time and date to read as follows: OFFER & CLOSING DATE: Time is of the essence, therefore this offer must be accepted on or before 5:00 p.m. Aug. 5th 1980. A signed copy shall be promptly returned to the purchaser. Byer took the offer to purchase form to Gladys Hawkins, who presented it to defendant. Later that evening. Gladys Hawkins returned the executed form to Byer. It had been signed under seal by defendant, with several changes in the terms having been made thereon and initialed by defendant. The primary changes made by defendant were an increase in the earnest money deposit ($100 to $500); an increase in the down payment due at closing ($875 to $1,000); a decrease in the unpaid principal of the existing mortgage amount ($18,525 to $18,000); a decrease in the term of the loan from seller (25 years to 20 years); and a purchaser qualification contingency added in the outer margin of the form. That same evening, Byer presented defendants counteroffer to Plaintiff Normile. Byer testified in his deposition that Normile did not have $500 for the earnest money deposit, one of the requirements of defendants counteroffer. Also, Byer stated that Normile did not want to go 25 [sic] years because he wanted lower payments. Byer was under the impression at this point that Normile though he had first option on the property and that nobody else could put an offer in on it and buy it while he had this counteroffer, so he was going to wait awhile before he decided what to do with it. Normile, however, neither accepted nor rejected the counteroffer at this point, according to Byer. When this meeting closed, Byer left the pink copy of the offer to purchase form containing the defendants counter offer with Normile. Byer stated that he thought that Normile had rejected the counteroffer at this point.

At approximately 12:30 a.m. on 5 August, Byer went to the home of Plaintiff Segal, who signed an offer to purchase with terms very similar to those contained in defendants counter offer to Plaintiff Normile and Kurniawan. This offer was accepted, without change, by defendant. Later that same day, at approximately 2:00 p.m., Byer informed Plaintiff Normile that defendant had revoked her counteroffer by commenting to Normile, [Y]ou snooze your lose; the property has been sold. Prior to 5:00 p.m. on that same day, Normile and Kurniawan initialed the offer to purchase form containing defendants counteroffer and delivered the form to the Gallery of Homes office, along with the earnest money deposit of $500.

Who does Ms. Miller have a contract with, Mr. Segal, or Normile and Kurniawan? Discuss fully the reasons for your answer. Include the essential elements of a valid offer as well as a discussion of termination of an offer.

Normile v. Miller Cite as 326 S.E.2d 11 (N.C. 1985)