OPINION ON REHEARING
This matter came before the original panel on the motion for rehearing of Defendant Allen (Seller). Seller asserts that paragraph 1.7 of the Agreement required Buyer to accept Seller’s counteroffer in writing, and that any other form of acceptance was thus ineffective. Paragraph 1.7 provided in pertinent part:
This offer shall expire unless written acceptance is delivered to BUYER on or before ... 6:00 PM Mountain Time, Thursday, March 3, 1994. It is acknowledged that this offer to purchase may be withdrawn at any time prior to BUYER’S written receipt of acceptance by SELLER and that SELLER may accept other offers prior to acceptance of this offer.” Emphasis added.
We are not persuaded. On its face, paragraph 1.7 does not require Buyer to accept Seller’s counteroffer in writing. Rather, it addresses how Seller must communicate acceptance. Thus, the specific terms of the Agreement do not require written acceptance of the counteroffer by Buyer.
The remaining issue is whether paragraph 1.7 requires as a general matter that any acceptance in this transaction be in writing. We do not believe it does. Seller signed and returned the Agreement to Buyer late but without modification. Thus, Seller’s counteroffer was for sale on the same terms previously offered by Buyer. The parties retained their identities as Buyer and Seller under the Agreement. Given the sequence of events, paragraph 1.7 became essentially surplusage to the counteroffer. It did not operate to provide an over-arching limit on Buyer’s mode of acceptance any more than paragraph 4.11.
Seller’s citation to Polhamus v. Roberts, 50 N.M. 236, 175 P.2d 196 (1946) is inapposite. The factual circumstances of Polhamus are so different from the case at hand that the analogy Seller attempts to draw is not accurate.
The motion for rehearing is denied.
IT IS SO ORDERED.
DONNELLY and HARTZ, JJ., concur.