(dissenting):
128 I cannot agree that SFA 1 became part of the REPC or was otherwise agreed to. Not only was it unsigned, despite the fact that a signature line was provided as part of the form, but the Wilsons expected it to be signed and their agent inquired why it had not been. The reply was not that Johnson considered her signature unnecessary given the elaborate interplay of the various provisions outlined in the main opinion but, rather, that she found it unacceptable as written.
129 The Wilsons did not then take the position that, given the interplay of the provisions, Johnson was bound by SFA 1 whether she liked it or not, despite the lack of her signature on it, and notwithstanding her expressed dissatisfaction with it. Rather, the Wilsons prepared and submitted to her SFA 2, which they presumably hoped would meet her stated reservation about SFA 1. Johnson did not sign SFA 2 either, but instead submitted to the Wilsons yet a third version of the seller financing agreement, namely SFA 8. The Wilsons did not sign or otherwise accept SFA 3, instead tendering their performance in a manner that was not consistent with the terms of any of the three proposed versions of the seller financing agreement. Johnson, dissatisfied with the tender, refused to close.
*1165T30 Against this background, I do not see how it can be concluded that the parties had a meeting of the minds with respect to the terms of seller financing. The logic of the main opinion would work for me in a case where there was only a single version of a seller financing agreement; neither side expressed any reservation about it; neither side expressed any concern about the absence of an accepting signature on the form; and neither side submitted a different, subsequent version of the agreement. In such a case, a party who then latched onto the lack of a signature in a late effort to get out of the deal would have no sympathy from me, and I would have no trouble in holding that party's feet to the fire.
{31 But the undisputed facts belie the apparent effect of these provisions in this case and require the opposite conclusion. If the parties viewed SFA 1 as an integral part of their deal given the terms of the REPC, the Wilsons would not have inquired about the lack of Johnson's signature, Johnson would have had no explanation when she was asked, the Wilsons would not have proposed SFA 2, Johnson would not have proposed SFA 3, and the Wilsong' tendered performance would have matched up precisely with SFA 1.
T 32 Seller financing was a key element of this transaction. With no meeting of the minds on that important component of the deal, there was no deal. Each side was free to walk away. 1 would limit the proceedings on remand to shaping appropriate relief reflective of that reality.