Marchiondo v. Scheck

Nature of the Case

This was an action for breach of contract for a commission on a real estate transaction.

Facts

Scheck (D) unilaterally offered in writing to sell real estate to a specified prospective buyer and to pay Marchiondo (P) a broker’s commission. The offer set a six-day time limit for acceptance. Scheck then revoked the offer in writing. Marchiondo received the revocation on the sixth day. Later that day, Marchiondo obtained an acceptance from a prospective buyer. Marchiondo sued Scheck for breach of contract. The trial court dismissed the complaint and Marchiondo appealed.

Issue

• Is partial performance by an offeree in response to a unilateral offer sufficient to create a binding contract conditioned upon the offeree’s full performance?

Holding and Rule of Law

• Yes. Partial performance under a unilateral offer creates an irrevocable option contract conditional on the offeree’s complete performance in accordance with the offeror’s terms.

The offeree’s part performance furnishes the acceptance and consideration for a binding contract conditioned upon the offeree’s full performance. Scheck has a right to revoke the offer, but that right is dependent upon whether Marchiondo began performance before he received Scheck’s revocation. What constitutes part performance will vary from case to case. Until there is part performance, the offeror may revoke his unilateral offer. Part performance is a question of fact to be determined at the trial.

Disposition

Remanded to determine whether Marchiondo partially performed prior to Scheck’s revocation.

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