(dissenting):
Regretfully I find myself unable to concur. First, I am not persuaded that an enforceable contract existed between Southern and Crateo to the extent that Crateo was obligated to perform where the hotel was totally financed. Second, even if Crateo was obligated to perform in such circumstances, there has been no showing that Southern, though willing, was able to tender the required documents on February 4, 1966.
1. The Contract.
The majority follows the reasoning of the district court which it correctly states as follows:
“The district court reasoned that even assuming Moody never saw part of the agreement, he signed a document which included the following clause:
“ ‘[Crateo] has heretofore examined, and hereby approves, the form of the instruments or documents attached hereto as exhibits and agrees that delivery to it of said instruments or doe-uments in such form duly executed by the party or parties required by the form thereof to execute said instruments or documents shall satisfy any condition or conditions to its obligations hereunder which relate to the execution or delivery of such instruments or documents.’
“On the authority of that clause, the district judge held that ‘a party who signs a contract intending to be bound but [who] fails to read it is obligated according to its terms * * *.'"1
The rule binding one to an agreement which is presented to him but which he does not read has not been applied where the party against whom recovery is sought never saw part of the so-called agreement. It is a well-settled principle that a contract is unenforceable where material terms are omitted. The omissions here alleged cannot be cured, in my opinion, by reference to the general assurance which says merely that Crateo has “examined * * * the instruments or documents attached hereto as exhibits * * (Emphasis supplied.) In short, such a statement does not run to exhibits which were neither then nor in the future appropriately attached or made known to Crateo. Southern could not rely upon such a representation when it knew that Crateo had not seen the crucial attachments.
Nonetheless, the majority is willing to enforce the contract on a theory that Crateo waived the materiality of knowing that the hotel was totally financed. I agree that, by failing to inquire, Cra-teo to some extent waived the significance of the missing facts. Cf. Ebberts v. Carpenter Production Co., Tex.Civ. App.1953, 256 S.W.2d 601; Houston & T. C. R. Co. v. McCarty, 1901, 94 Tex. 298, 60 S.W. 429. Crateo agreed to be bound by all the terms included in the letter portion of the note-purchase agreement, which Moody actually did see, and in effect to be bound by the *699facts disclosed in the missing attachments to the extent that they did not vary from the letter portion of the agreement. In determining which facts Cra-teo waived knowledge of, it therefore becomes important carefully to peruse the language of the letter which Moody saw and signed. Each of the missing exhibits was cursorily described in the letter portion of the agreement by a caption. The exhibits here important were the “Deed of Trust,” certain “Plans and Specifications” for the proposed hotel, and a “Construction Loan Agreement.”
By failing to inquire as to the particulars of each of those documents Crateo waived knowledge of its contents, but only to a limited extent. In essence, Crateo became bound by any facts or terms disclosed in each document which a reasonable man in Crateo’s position could anticipate as within the scope of the exhibit as described in the letter. For example, Crateo was bound to accept any building which reasonably purported to be a “hotel.” Whether the completed hotel conformed with the “Plans and Specifications” set out in that exhibit was waived by Crateo. Similarly, Crateo waived knowledge of the precise terms of the “Deed of Trust.”
However, the terms of the “Construction Loan Agreement” are crucial and require, I think, a finding on the facts of this case that Moody’s failure to inquire into its particulars did not bind Crateo to accept the terms of that exhibit. The letter portion of the note-purchase agreement which Moody signed did not in any manner disclose that, under the “Construction Loan Agreement,” Southern would lend money not merely to pay the cost of building the hotel but also to cover the purchase price of the land and some $72,000 in commitment fees for both the interim and the permanent financing. To the contrary, at least one portion of the letter signed by Moody would indicate that land costs were not contemplated. In section (2) (e) of the letter, Southern particularized the nature of the construction expenses to be incurred. None of those expenses related to the cost of acquiring the land. In short, the letter agreement failed to disclose that the project was to be “totally financed” — that the borrowers were investing no capital. A reasonable man reading the phrase, “Construction Loan Agreement,” along with the other provisions of the letter would not suspect that part of the loan in issue was to cover the land expenses and the commitment fees. Crateo waived precise knowledge of the specifics of the “Construction Loan Agreement” but not to such an extent that the agreement might transcend its description in the letter. Crateo’s waiver did not establish silent acceptance of an agreement whereby the borrowers were to contribute nothing and the so-called construction loan was to cover not only the costs of construction but also the cost of the land and of some $72,000 in commitment fees ($33,-000 to Southern itself to secure the interim financing plus $39,000 to the permanent lenders to secure the take-out agreements).
Crateo had every reason to believe that it would obtain a second lien both on a hotel, the construction costs of which amounted to $3,300,000, and on a piece of land of some value, although the actual value of the land was unknown to Crateo, and Crateo waived lack of such knowledge by its failure to make inquiry. In reality Crateo received a second lien on a building costing $2,628,000 and on a parcel of land costing $600,000.
It was Southern’s duty to inform Cra-teo that the “Construction Loan Agreement” encompassed a loan for something other than that which would be implied by the plain meaning of its title construed in connection with all the terms of the letter contract. Admittedly, Southern did prepare a document which actually disclosed that the project was totally financed. However, Crateo never saw the document. Exhibit “C,” the “Construction Loan Agreement,” was sent to Blakeway and, we assume, it was Southern’s expectation that Blakeway would channel it through Ward to Crateo. Neither Blakeway nor Ward was an *700agent of Crateo such that delivery to either of them was tantamount to delivery to Crateo.2 Thus Southern should bear the consequences of Crateo’s failure actually to see the “Construction Loan Agreement.” At trial two representatives of Crateo testified that at no time prior to the expiration of the note-purchase agreement had Crateo received a copy of the “Construction Loan Agreement.” That testimony went unchallenged.
In sum, though to some extent Crateo waived knowledge of the specific terms of the missing attachments, that waiver did not encompass the terms of the “Construction Loan Agreement” actually drafted by Southern. Since Southern failed to apprise Crateo that the hotel was being totally funded and since this fact was obviously material to the risk assumed by Crateo in agreeing to accept a second mortgage as security, Cra-teo’s contract did not obligate it to purchase the $600,000 note.
2. Tender.
I agree with the reasoning of the majority that if the contract required Cra-teo’s purchase of the $600,000 note, tender and delivery of the specified documents by Southern was not a condition precedent. Since the contract embodied concurrent conditions rather than a strict condition precedent, Southern was obligated to show only that it was ready, willing and able to make tender. Southern’s telephone and telegraphic messages to Crateo on the last day of the contract’s term, February 4, 1966, evinced its willingness to make the necessary tender, but there was not, in my opinion, sufficient proof of Southern’s ability to make the actual tender before the end of that day.
Thus, even if I could accept the majority’s view that a valid, enforceable contract existed obligating Crateo to purchase the $600,000 note, I would vote to remand the case to the district court for a finding as to Southern’s ability to make the necessary tender prior to the expiration of the contract. Only if such ability existed could the contract be enforced.
In summary, while some contract existed between Southern and Crateo, the terms of that contract, reasonably construed in accordance with all of the then existing circumstances, did not obligate Crateo to purchase the $600,000,, note. If that is correct, the judgment should be reversed with directions to enter judgment for Crateo. If the contract obligated Crateo to purchase the $600,000 note, then the case should be remanded for a finding as to Southern’s ability to make the necessary tender before the contract expired.
I respectfully dissent.
. Note that under that rule Crateo is “obligated according to its terms,” that is the terms of the signed contract. I think that this case turns upon the true meaning of those terms.
. The district court stated that if Ward was the agent of either Southern or Cra-teo, lie was an agent of Crateo. It seems clear that Ward, and for that matter Blakeway, was not Crateo’s agent. Rather, they were independent third parties— mere conduits.