dissenting:
I respectfully dissent.
The majority reverses a jury’s determination that Barrier Island Station, through its attorney, agreed to enter into a repurchase agreement without an additional handwritten modification it had earlier requested. I believe, however, that there was ample evidence to support that determination.
The evidence adduced at trial, and acknowledged in the majority opinion, established the following. John Schafer and the other buyers executed and returned the contracts of sale and repurchase agreements provided to them by Barrier Island Station. The contracts contained a provi*1081sion which conditioned closing on the execution of repurchase agreements that were acceptable to buyer. Barrier Island executed the contracts in turn, but added a handwritten modification to the repurchase agreement that limited its repurchase obligation to successful conversion of the units to timeshare: a condition that would require majority approval of the condominium owners. The buyers, understandably, found this term unacceptable, and it resulted in an impasse to closing.
Seeking to close the purchase, Barrier Island’s attorney, Crouse Gray, sent a letter to the buyers to the effect that Barrier Island would agree to the repurchase agreement without its handwritten modification. The impasse now removed, the parties closed two months later, without altering this understanding. Then, the parties attempted to obtain a clean copy of the repurchase agreement, to no avail. Some three years later, the buyers sought to have Barrier Island repurchase the units in accordance with their agreement and Barrier Island refused.
There was other evidence as well. For example, Gray testified, with regard to his authority to bind Barrier Island to the repurchase agreement as originally drafted, that: “I cannot imagine having written such a letter without having talked with John Lancaster or Paul Shaver. If not both of them, prior to drafting the letter.” Lancaster and Shaver were the principals of Barrier Island. Their authority to bind the corporation is undisputed. In fact, John Schafer testified that Barrier Island’s sales agent Jess Erwin confirmed that Barrier Island had agreed to delete the modification. Furthermore, several repurchase agreement drafts without the handwritten modification, that were signed by the principals of Barrier Island after the date of Gray’s letter, were before the jury.
A reasonable inference to be drawn from this evidence, is that Barrier Island was more interested in the sale of the units, than in its lateadded handwritten timeshare condition, and would therefore agree to be bound by a repurchase agreement without it. In any event, I suggest that the majority errs when it holds by necessary implication that such an inference was an impermissible one for the jury to have made.
Apart from what I believe to be the majority’s erroneous factual inferences, I believe that reversing this jury’s verdict is not well advised for another reason. In so doing, the majority has permitted Barrier Island to conduct its affairs through its attorney, and then avoid the consequences of that conduct when not to its advantage. I suggest that there would be no issue of Gray’s authority if he were simply Barrier Island’s agent, an incongruous result to say the least. The majority permits Barrier Island to blow hot and cold at the same time.
I would affirm.