Trax Monitoring, Inc., Plaintiff-appellee, v. K.e.b. Investments, Inc., Defendant-appellant, 980 F.2d 738 (9th Cir. 1992)

MEMORANDUM^* 

K.E.B. Investments, Inc. ("K.E.B.") appeals the district court's grant of summary judgment to Trax Monitoring, Inc. ("Trax"). The dispute concerns whether K.E.B. accepted an option contract.

The principal issue is whether the district court erred by holding as a matter of law that K.E.B.'s letter of February 7, 1990, was not an unqualified acceptance of the original option agreement and thus did not operate as a valid acceptance of that agreement. We hold that the district court was correct, because the letter of February 7, 1990, contained conflicting statements. On the one hand, the letter stated that it was an acceptance of the original offer. However, the letter also listed several "terms of exercise of the option" that were inconsistent, or varied from, the terms of the original agreement. There was no basis for finding on this record that the parties agreed unequivocally to the terms of any option agreement.

The appellant further contends that if the letter of February 7 was not a valid acceptance, then the letter of February 19, intended to clarify the February 7 letter, constituted a valid acceptance. The difficulty with this contention is that the time for acceptance of the offer had expired on February 17. Under the terms of the option agreement, the 30-day period for acceptance was triggered by K.E.B.'s notification to Trax that the latter had complied with its obligation to supply due diligence documents.¹  That notification was given January 17. The option period thus ended on February 17, two days prior to K.E.B.'s attempted clarification.

AFFIRMED.