
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1568                                   RAYMOND BOURQUE,                                Plaintiff, Appellant,                                          v.                        FEDERAL DEPOSIT INSURANCE CORPORATION,                           AS RECEIVER/LIQUIDATOR AGENT FOR                     EASTLAND BANK AND NEWMARK INVESTMENTS, INC.,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert  Corrente with whom  Anthony F. Cottone and Corrente, Brill            ________________            __________________     _______________        & Kusinitz, Ltd. were on brief for appellant.        ________________            Sharon C. Boyle with  whom Marian Van Soelen, and Russell L.  Chin            _______________            _________________      ________________        and Associates, P.C. were on brief for appellees.        ____________________                                 ____________________                                  December 28, 1994                                 ____________________                      STAHL, Circuit Judge.   Plaintiff-appellant Raymond                      STAHL, Circuit Judge.                             _____________            Bourque commenced this breach  of contract action in district            court against defendants-appellees Federal  Deposit Insurance            Corporation   ("FDIC")   and   Newmark    Investments,   Inc.            ("Newmark")  (collectively,  "defendants").   Bourque  claims            that  the  FDIC and  Newmark agreed  to sell  him a  piece of            property  in Woonsocket,  Rhode  Island, for  $130,000.   The            defendants denied that a contract  had been formed and  filed            separate motions  for summary  judgment.  The  district court            granted defendants' motions, and Bourque appeals.  We affirm.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________                      The FDIC  is the receiver and  liquidating agent of            Eastland  Savings Bank  of Woonsocket.   In  its capacity  as            receiver,  the FDIC  is  the sole  shareholder of  Newmark, a            wholly-owned  subsidiary  of  Eastland.    In December  1992,            Newmark retained the FDIC to  market its real estate  assets,            including the property at issue here.                      On  June  1,  1993, Bourque's  attorney,  Edward J.            Casey, wrote to FDIC account officer Curtis Cain that Bourque            was interested  in purchasing the property  at 846 Cumberland            Hill Road  in Woonsocket (the "Property").   Casey asked Cain            whether he  was "the person  handling the asset,"  whether he            had authority "to discuss" the Property, and what the current            status  of the  Property was.   At  Cain's  direction, Cain's                                         -2-                                          2            assistant  contacted Casey  and  informed him  that Cain  was            indeed the person "handling" the Property, but she apparently            did not inform  Casey of any limitations  on Cain's authority            to sell the Property.                      On June 11, 1993, Casey sent Cain a letter offering            to  buy the Property on Bourque's behalf for $105,500.  Casey            enclosed  a  $10,000  earnest   money  deposit  and  an  FDIC            purchase-and-sale  agreement  form  signed  by  Bourque  that            described the Property and the terms of the offer.                      Cain's response, dated June 23, 1993, (the "June 23            letter")  was  printed   on  FDIC  Division   of  Liquidation            letterhead  and  bore the  heading  "NOTICE  OF REJECTION  OF                                                 NOTICE  OF REJECTION  OF            OFFER".  The letter's critical paragraph read as follows:            OFFER                      This letter is to advise you that FDIC is                      unable  to  accept  Mr. Bourque's  offer.                      FDIC's counter offer is $130,000.00.  All                      offers are  subject  to approval  by  the                      appropriate  FDIC  delegated   authority.                      FDIC has  the right  to accept  or reject                      any and all offers.   I am returning your                      customer's contract of  sale and  earnest                      money deposit.   If your  customer wishes                      to  accept  this  counter  offer,  please                      return  the  amended   Purchase  &   Sale                      Agreement to me.            Cain  did not return Bourque's  $10,000 deposit.  Indeed, the            FDIC  deposited  the check  "by  mistake,"  according to  the            deposition testimony of Cain's supervisor, Donald Lund.  Cain            also failed, contrary  to FDIC policy,  to attach a  standard            "Letter  of  Understanding"  to  the  FDIC  purchase-and-sale            agreement form he returned to  Casey along with the rejection                                         -3-                                          3            notice.  That  form letter  explicitly states  that the  FDIC            account officer has no delegated authority to accept an offer            and  that "[n]o  contract will  arise" until  the appropriate            delegated authority notifies the offeror that it has accepted            the offer.   Under FDIC policy, account  officers may suggest            and  negotiate terms  and  recommend  appropriate offers  for            approval  by the proper delegated  authority, but they do not            have  the  authority  to  liquidate FDIC  assets  by  binding            contracts.   That authority is conferred on other job titles;            in  this case,  the  sale of  the  Property could  have  been            approved  by an  FDIC assistant  managing liquidator.   Other            than  Cain's June 23 letter, there is no evidence that anyone            at the FDIC communicated  this policy to Casey or  Bourque in            connection with  the transaction  before this  dispute arose.            John  Chiungos,   another  FDIC  account   officer,  however,            testified at his  deposition that he had explained the policy            to Casey  in connection with another,  smaller transaction in            January 1993.   At his  deposition, Casey at  first testified            that he had  never had  prior dealings with  the FDIC;  then,            when  confronted  with  documentary  evidence  of  the  prior            transaction, he said he had "completely forgot" about it.  In            any  event,  Casey did  not  rebut  Chiungos' testimony  that            Chiungos had  explained the FDIC liquidation  policy to Casey            at least on one prior occasion.                                         -4-                                          4                      On  June  25,  1993,  Casey returned  to  Cain  the            purchase-and-sale agreement, which was signed by  Bourque and            amended   to  indicate   a   $130,000  purchase   price  (the            "Agreement").   The Agreement set forth July 30, 1993, as the            closing date for the transaction.                      On  July 7,  1993,  another  FDIC account  officer,            Elizabeth M.  Carroll, informed  Casey by telephone  that the            FDIC had received an offer  on the Property substantially  in            excess of  $130,000.1  Casey  responded by sending  Carroll a            letter  stating that  Bourque  considered the  parties to  be            bound  by  contract  and  that  Bourque  would  litigate,  if            necessary, to obtain the benefit of his bargain.                      On July 27, 1993, Carroll sent a letter to Bruce E.            Thompson, Casey's  law partner,  stating that the  FDIC would            not accept  Bourque's $130,000 offer, but  that Bourque could            submit  another offer of at  least $250,000 by that afternoon            for  consideration   by   the  appropriate   FDIC   delegated            authority.  In her letter, Carroll wrote:                                            ____________________            1.  Prior to working for  the FDIC, Carroll worked  for seven            years  at  Eastland,  initially  as an  assistant  to  Arthur            Gauthier,  Eastland's  executive   vice-president  for   real            estate.   Gauthier is the real estate agent who brokered this            higher (and  ultimately successful) offer  for the  Property,            and his office  stands to  receive a 4.5%  commission on  the            $253,000  transaction.   Carroll's  supervisor,  Donald Lund,            testified at  his deposition that  had he known  of Carroll's            past working  relationship with  Gauthier, he would  not have            let her market the Property to him.  While these questionable            dealings indicate  that  the  FDIC  may wish  to  review  its            oversight practices, they do not animate our decision in this            case.                                         -5-                                          5                      After reviewing the  file and  conferring                      with the previous  account officer, it is                      clear that the FDIC's policy that account                      officers  have no  authority to  bind the                      FDIC  or  its subsidiary  corporation was                      communicated  to your  client.   Mr. Cain                      indicated   to   your  client   that  his                      authority is limited  to recommending  an                      offer  and  that  all  final  offers  are                      subject  to  approval by  the appropriate                      delegated authority.                      On August  2, after  the FDIC  refused to sell  the            property to Bourque, Bourque filed a notice of lis pendens on            the property  and  instituted this  action, seeking  specific            performance from either FDIC or Newmark, and damages from the            FDIC.2                      The  defendants  filed  separate  summary  judgment            motions,  arguing  that there  was  no  contract between  the            parties, that  the alleged  contract violated  Rhode Island's            Statute  of Frauds  and  that Cain  did  not have  actual  or            apparent authority to bind the FDIC or Newmark.  A magistrate            judge recommended that the  motions be granted, and following            oral    argument,   the    district   court    adopted   that            recommendation.3  This appeal ensued.                                            ____________________            2.  On  August 9, 1993, the FDIC entered into an agreement to            sell the Property to  Supreme Corporation of Goshen, Indiana,            for  $253,000.  The closing  of that sale  has been postponed            pending the outcome of this case.            3.  Although the  district court's  order does not  so state,            the transcript  of the  oral argument clearly  indicates that            the  district  court  based  its  decision  on  the  contract            formation  issue and  never  reached the  apparent or  actual            authority issues.  The district court also suggested that had            it found that  a contract was formed, it would also have held                                         -6-                                          6                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      We begin by  reviewing traditional summary judgment            principles and how they apply in contract formation disputes.            With  those principles  in mind,  we then  turn to  Bourque's            substantive argument that  summary judgment is inappropriate.            Because  our resolution  of the  contract formation  issue is            dispositive,  we do not reach the statute of frauds or agency            issues.            A.  Summary Judgment in Contract Formation Disputes            ___________________________________________________                      We accord  a  district  court's  grant  of  summary            judgment no  deference; the scope  of our review  is plenary.            Alan Corp.  v. International Surplus Lines Ins.  Co., 22 F.3d            __________     _____________________________________            339,  341 (1st  Cir. 1994).   We  affirm a  grant of  summary            judgment if our evaluation  of the parties' proof on  file --            viewing  the  evidence in  the  light most  favorable  to the            nonmovant  -- reveals "that there  is no genuine  issue as to            any  material fact and that  the moving party  is entitled to            judgment as a matter of law."  NASCO, Inc. v. Public Storage,                                           ___________    _______________            Inc., 29 F.3d 28, 32 (1st Cir. 1994) (quoting Fed. R. Civ. P.            ____            56(c)).   An issue is  only "genuine" if  there is sufficient            evidence  to permit a reasonable jury to resolve the point in            the  nonmoving party's favor, NASCO,  29 F.3d at  32, while a                                          _____            fact is only "material"  if it has "`the potential  to affect                                            ____________________            that Rhode Island's Statue of Frauds was satisfied.                                          -7-                                          7            the  outcome of  the suit  under the  applicable law.'"   Id.                                                                      ___            (quoting  Nereida-Gonzalez v.  Tirado-Delgado, 990  F.2d 701,                      ________________     ______________            703 (1st Cir. 1993)).                      It is  an axiom  of  modern contract  law that  the            formation of a contract requires the "manifestation of mutual            assent" by  the parties to  the agreement.   See  Restatement                                                         ___  ___________            (Second)  of Contracts   17 (1981).  Under Rhode Island's law            ______________________            of contracts,4 we look  to the parties' words and  actions to            determine  whether they have  manifested the objective intent                                                         _________            to promise or  be bound.   Smith v. Boyd,  553 A.2d 131,  133                                       _____    ____            (R.I. 1989).  This manifestation "almost invariably takes the            form of  an offer or  proposal by one  party accepted  by the            other party or parties."  McLaughlin v. Stevens, 296 F. Supp.                                      __________    _______            610,  613  (D.R.I.  1969) (interpreting  Rhode  Island  law).            Determining  whether  there  was  mutual assent  may  involve            factual  questions:   What  did the  parties  say (or  do) to            manifest their  intent?  Were the  parties' understandings of            each  other's actions reasonable under all the circumstances?            Answering these  questions is the province  of the factfinder            and  not the court.   See  Salem Laundry  Co. v.  New England                                  ___  __________________     ___________            Teamsters and Trucking Indus. Pension Fund, 829 F.2d 278, 280            __________________________________________            (1st  Cir.  1987) (stating  that it  is  "a question  of fact                                            ____________________            4.  The parties do not dispute that Rhode Island contract law            governs  the interpretation and  construction of  the alleged            contract.  To the extent that Rhode Island case law  does not            directly address the issues here, we look to other sources of            general contract law, as would a Rhode Island court.                                         -8-                                          8            whether any particular conduct or actions imply a contractual            understanding" (internal quotation omitted)).                       Like  other questions  of  fact, however,  there is            sometimes no genuine issue as to whether the parties' conduct                         _______            implied a "contractual understanding."  The words and actions            that allegedly formed a contract may be "`so clear themselves            that reasonable people could not differ over their meaning.'"            FDIC  v.  Singh, 977  F.2d 18,  21  (1st Cir.  1992) (quoting            ____      _____            Boston Five Cents Sav. Bank v. Secretary of Dep't of HUD, 768            ___________________________    _________________________            F.2d  5, 8 (1st Cir. 1985)).   In such cases, "the judge must            decide  the issue  himself, just  as  he decides  any factual            issue in respect to which  reasonable people cannot differ."             Boston  Five Cents  Sav. Bank, 768  F.2d at  8.   Even if the            _____________________________            language  of  a  purported  contract  is  ambiguous,  summary            judgment is appropriate when the extrinsic evidence about the            parties' meaning is "`so  one-sided that no reasonable person            could  decide the contrary.'"  Allen v. Adage, Inc., 967 F.2d                                           _____    ___________            695, 698  (1st Cir.  1992) (quoting  Boston  Five Cents  Sav.                                                 ________________________            Bank,  768 F.2d at 8).  A  corollary of this last proposition            ____            is   that  even  if  the  language  of  purported  assent  is            susceptible  of  more  than  one  reasonable  interpretation,            summary judgment is nevertheless appropriate if none of those            interpretations would support the nonmovant's legal argument.            See O'Connor  v.  McKanna,  359  A.2d 350,  354  (R.I.  1976)            ___ ________      _______            (stating  that  summary  judgment   must  be  denied  if  the                                         -9-                                          9            factfinder  "could  reasonably  adopt  the  opposing  party's            version as  to what  was said  and done and  intended by  the            parties");  Knight v.  Sharif, 875  F.2d 516,  523 (5th  Cir.                        ______     ______            1989)   (granting  summary  judgment  in  contract  formation            dispute where  nonmovant was  unable to "provide  a plausible            interpretation" of the documents  at issue that would support            his argument that a contract had been formed).                      Placed  in the  context of  this case,  Bourque can            avoid  summary  judgment only  if we  are  able to  discern a            reasonable  interpretation  of  Cain's  June  23  letter that            supports  Bourque's legal  argument  -- that  Cain's June  23            letter constituted  an unequivocal offer to  sell Bourque the            Property for $130,000.  This we are unable to do.            B.  The Law of Offers            _____________________                      An  offer  is a  "manifestation  of  willingness to            enter into a bargain, so made as to justify another person in            understanding that his assent to that bargain  is invited and                                                                      ___            will conclude it."  Restatement (Second) of Contracts   24 at            ________________    _________________________________            71  (1981)  (emphasis  supplied).    See  also  1  Corbin  on                                                 ___  ____     __________            Contracts    1.11 at  31 (rev. ed.  1993) ("So long  as it is            _________            reasonably apparent  that some  further act of  the purported            offeror is  necessary, the purported offeree has  no power to            create  contractual  relations,  and   there  is  as  yet  no            operative offer.").                                         -10-                                          10                      The  fact  that a  party uses  the word  "offer" or            "counteroffer" in  a  communication with  another  party  "is            deserving of weight, but  it is not controlling, and  a court            may  decide that  what  is  called  an  offer  is  merely  an                                                    _____            invitation  to the  recipient to  make an  offer."   E. Allen            Farnsworth, Contracts   3.10, at 139 (2d  ed. 1990).  "On the                        _________            other  hand, the insertion into  a proposal of  a clause that            reserves  to  its maker  the power  to  close the  deal  is a            compelling  indication that  the proposal  is not  an offer."            Id.   Thus, in Foster & Kleiser v. Baltimore County, 470 A.2d            ___            ________________    ________________            1322, 1326 (Md. Ct.  Spec. App. 1984), an agreement  by which            Baltimore  County   purported  to  purchase  land,  but  that            contained a clause  stating that the  agreement was null  and            void if not approved  by the county council, was  held merely            part of  preliminary negotiations  because the seller  of the            land "could not have  accepted [the county's] `offer' without            further action by the County."  See also Dillon v. AFBIC Dev.                                            ___ ____ ______    __________            Corp., 420 F.  Supp. 572 (S.D. Ala. 1976),  aff'd in part and            _____                                       _________________            rev'd in part,  597 F.2d  556 (5th Cir.  1979) (holding  that            _____________            woman's "offer"  to purchase  house "subject to  approval" by            husband lacked clarity of  intent and mutuality of obligation            and was therefore not an offer that, without more, could bind            the  parties); Engineering Assocs.  v. Irving  Place Assocs.,                           ___________________     _____________________            622 P.2d 784, 787 (Utah 1980) (holding that letter "offering"            to  make mortgage loan, with  the agreement to become binding                                         -11-                                          11            upon  execution  of documents  by  "offeror's"  chairman, was            merely invitation to submit offer, because  purported offeror            "reserved  to itself  the last  act in  the formation  of any            agreement between the parties").                      Bourque argues that cases such as Dillon and Foster                                                        ______     ______            & Kleiser  are inapposite  because the purported  offerors in            _________            those  cases  clearly  reserved  authority  to  take  further            action, while Cain  did no  such thing.   We agree that  Cain            could have  expressed his intention with more clarity, and we            do not base our  decision primarily on these cases.   Rather,            we  recognize that where  intent and the  meaning of contract            language are at  issue, cases in which  different parties had            an entirely  different set  of communications are  of limited            precedential value.  Nevertheless,  we think that these cases            do support the general principle that unequivocal language of            offer or acceptance  cannot be taken in isolation from other,            qualifying  language  in  the  document and  that  where  the            unqualified  statement  and  the qualification  coexist,  the            qualification is likely to  control, at least in  the context            of offer and acceptances.            C.  Interpreting the June 23 Letter            ___________________________________                      In arguing that Cain's  June 23 letter contained an            offer that  bound the FDIC  and Newmark, Bourque  focuses our            attention  on the second and sixth  sentences of the letter's            critical paragraph:  "FDIC's  counter offer is $130,000.00. .                                         -12-                                          12            . . If  your customer  wishes to accept  this counter  offer,            please return the  amended Purchase & Sale Agreement  to me."            Bourque argues that these words are unequivocal, conveying no            possible meaning other  than that the  FDIC was offering  the            Property to  Bourque for the  stated price, and  that Bourque            could accept the offer in the prescribed manner.                      If  Cain  had  written   no  more  than  those  two            sentences, then  Bourque's acceptance may well  have formed a            contract between  the parties.   But  Cain's  letter did  say            more,  and  it is  a fundamental  tenet  of Rhode  Island and            general   contract  law  that  "[i]n  ascertaining  what  the            [parties']  intent is  we must  look at  the instrument  as a            whole and  not at some detached portion thereof."  Hill v. M.                                                               ____    __            S. Alper & Son, Inc., 256 A.2d 10, 15 (R.I.  1969).  See also            ____________________                                 ___ ____            In re Newport Plaza Assoc., 985 F.2d 640, 646 (1st Cir. 1993)            __________________________            (applying  Rhode Island law and stating that "a court is duty            bound  to construe contractual  terms in  the context  of the            contract as a  whole"); Dial  Media, Inc. v.  Schiff, 612  F.                                    _________________     ______            Supp.  1483,  1488  (D.R.I. 1985)  ("An  interpretation which            gives reasonable and effective  meaning to all manifestations                                                       ___            of intent is to be preferred  to one which leaves part of the            manifestation of no effect.") (emphasis supplied).                      Immediately following the sentence  "FDIC's counter            offer  is $130,000.00," Cain wrote:   "All offers are subject            to  approval  by the  appropriate  FDIC delegated  authority.                                         -13-                                          13            FDIC  has the right to accept  or reject any and all offers."            The  defendants  argue  that  these  sentences   clearly  and            unambiguously  attached   a  condition  to   Cain's  $130,000            counteroffer:   the approval of the offer  by the appropriate            FDIC authority.   Bourque  argues that these  sentences, when            read in the context of the entire paragraph and Casey's prior            communications  with   Cain,  did   nothing  to   dispel  his            reasonable understanding  that he  could indeed enter  into a            binding contract  by performing the act prescribed by Cain in            the  letter's  final sentence.   At  the very  least, Bourque            argues, the  paragraph is  ambiguous and should  be construed            against the FDIC, since it drafted the document.                        At  oral argument, Bourque's counsel stated that,            under the  circumstances of this  case,5 where Cain  had told            Casey that  he was the  person "handling"  the Property,  the            paragraph at issue  could only  mean that the  writer of  the            letter himself  --  i.e., Cain  -- was  the appropriate  FDIC            delegated  authority and  that  he included  the "subject  to            approval" language  even though  he had already  approved the            $130,000 figure.   This interpretation, rather  than giving a            "reasonable and  effective meaning" to the  paragraph's third                                            ____________________            5.  In his brief, Bourque points to the FDIC's deposit of his            $10,000  earnest money  check as  another reason  why summary            judgment  should  not  be  granted.   He  fails  to  explain,            however, exactly how  this action  could be  understood as  a            manifestation of intent in  light of Cain's express statement            in  the June  23 letter  that he was  returning the  check to            Bourque.                                         -14-                                          14            and fourth sentences, foists  upon them a tortured, illogical            reading.  An  offer cannot  be both subject  to approval  and            already  approved:   it is  either one  or the  other.6   Nor            would   one  reasonably  expect  the  "appropriate  delegated            authority" --  even of the FDIC -- to refer to himself in the            third person  in proclaiming that  he retained  the power  to            approve  all   offers.     One  would  understand   that  the            appropriate authority must be someone else.                      Bourque   attempts   to   avoid  these   linguistic            obstacles  by  emphasizing that,  on  its  own terms,  Cain's            letter distinguishes "counter  offers" from "offers."   Thus,            so  this argument goes, the third and fourth sentences of the            letter  reserve  FDIC approval  only  for  "offers" --  i.e.,            offers to buy the Property for  less than $130,000 -- and not                   ______            for  the FDIC's "counter offer"  to sell it  at the specified                                            ____________________            6.  Under  Rhode Island  contract  law, "unless  a plain  and            unambiguous intent  to the contrary is  manifested, the words            used in  the contract  are assigned their  ordinary meaning."            Westinghouse Broadcasting  Co. v. Dial Media,  Inc., 410 A.2d            ______________________________    _________________            986, 991 (R.I.  1980).  "[W]e  look in the first  instance to            the dictionary meaning of the language  at issue to determine            its ordinary meaning."  Id. at 992 n.11.  The word "subject,"                                    ___            when  used as  an adjective,  has several  possible meanings,            according  to Webster's  Third New  International Dictionary.                          ______________________________________________            The  only meaning that makes any  sense in the context of the            June  23  letter,  however,  is "likely  to  be  conditioned,            affected,  or modified  in  some  indicated  way:   having  a            contingent relation to  something and usu[ally] dependent  on            such  relation for  final form,  validity,  or significance."            Webster's  Third  New International  Dictionary  2275 (1986).            _______________________________________________            This meaning,  implying future  action, is  inconsistent with            Bourque's purported understanding that the offer had  already            been approved.                                         -15-                                          15            price,  which  the paragraph's  final  sentence unambiguously            holds  out  for acceptance  by  a  prescribed  method.   This            interpretation  fails  too,  however,  for  it  places  undue            reliance on the presence of the words "counter" and "accept,"            while  glossing over  the manifestation  of reluctance  to be                                                        __________            bound contained in the third and fourth sentences.                      It is  axiomatic that  a counteroffer is  simply an            offer  that operates also as a rejection of a previous offer;            it is still very much an offer.   See Restatement (Second) of                                              ___ _______________________            Contracts   39 (1981).   Bourque's argument assumes  that the            _________            use of the word "counter" by Cain removed the FDIC's $130,000            "offer"  from the set of offers  referred to in the very next            sentence:    "All  offers  are  subject  to  approval  by the                          ___            appropriate  FDIC  delegated authority."  (emphasis supplied)            There is  nothing magical about the  word "counter," however;            it is merely a descriptive term, letting us know that another            offer  preceded the  counteroffer  and was  rejected,  either            explicitly or  implicitly by the making  of the counteroffer.            Bourque  responds   to  the  fact  that   a  counteroffer  is            "technically"   an  offer   by  calling   it  a   "legalistic            obfuscation" that ignores the  fact that the FDIC "explicitly            empowered Bourque  to accept  its counteroffer, and  told him            how to do so."                      We  respond   thusly.    First,  it   is  hardly  a            technical, legalistic obfuscation  to say that  counteroffers                                         -16-                                          16            are  offers;  we think  that is  rather elementary.   Second,            Casey is a lawyer, and had some familiarity with how the FDIC            works; even if this  argument is "legalistic," it is  not one            that should have entirely eluded him when he read the letter.            See Trifiro v. New York  Life Ins. Co., 845 F.2d 30,  33 (1st            ___ _______    _______________________            Cir.  1988) (stating  that when  confronted with  conflicting            manifestations of intent,  "a reasonable person  investigates            matters  further;  he  receives  assurances  or clarification            before relying").  Third, the FDIC only "empowered Bourque to            accept  its  counteroffer" according  to  the  terms of  that            offer,   which  included   obtaining  the  approval   of  the            appropriate  delegated authority.   See  In re  Newport Plaza                                                ___  ____________________            Assoc., 985 F.2d at 645 (stating that under Rhode Island law,            ______            the  offeror  controls  the  offer   and  the  terms  of  its            acceptance).                      Bourque  attaches  great significance  to  the fact            that Cain,  through his assistant, confirmed  to Bourque that            he  was indeed the person "handling" the Property and that he            did  not  expressly  state that  his  authority  to sell  the            Property was limited.                      We deal with the  latter point first.  Cain  did in            fact state that his authority was limited, by informing Casey            that "[a]ll offers are subject to approval by the appropriate            delegated  authority."   As we  explained above,  Cain cannot            reasonably  be viewed as referring  to himself here.   As for                                         -17-                                          17            Cain's statement that he was "handling"  the Property, he was            indeed:   he was handling bids  on the Property,  much like a            real  estate  agent or  a loan  officer  at a  bank "handles"            preliminary  negotiations  before   submitting  a   tentative            agreement or offer to the principal for approval.  "Handling"            is not a  synonym for  "authorized to sell."   Hence,  Cain's            answer to Casey's query that he was the FDIC person with whom            Casey should  be  dealing was  correct, and  should not  have            suggested  to Casey  that Cain  was vested with  authority to            close a deal for the Property.                      While hardly a  model of clarity,7  we nevertheless            hold that  the only  reasonable interpretation of  the entire            paragraph at  issue places  the  recipient of  the letter  on            notice  that  the  FDIC's  "counter offer"  of  $130,000  was            subject  to further  approval.   This interpretation  gives a            reasonable  meaning to  each  sentence; it  alters the  plain                                            ____________________            7.  Following  the  initiation  of  this  lawsuit,  the  FDIC            changed the  "macros" on account officers'  computers so that            they  could  not  fire  off  "counteroffers"  with  a  simple            keystroke.  If Cain were to write his letter today,  it would            not contain the word "counteroffer," but would instead invite            another offer from Bourque.                 We  agree  that handling  the  transaction  in this  way            provides  the potential  buyer  virtually  no opportunity  to            mistake the FDIC's communication as an offer, and we would no            doubt not be deciding this case had the FDIC taken this  step            in responding  to Bourque's first offer.   Nevertheless, just            as a subsequent modification  does not prove negligence in  a            defective design case (indeed, it  is not even admissible for            that purpose under the Federal Rules of Evidence), the FDIC's            change  is not  probative of  what Cain's  letter meant  to a            reasonable reader  in Bourque's position (i.e.,  one aided by            an attorney such as Casey).                                             -18-                                          18            meaning of the paragraph's  second and last sentences  -- the            apparent  extension  of  an   offer  and  the  invitation  of            acceptance  by a prescribed method -- only if one reads those            particular  sentences in isolation.  When read as a whole, as            it must  be read,  the paragraph  sets forth  with sufficient            clarity that the recipient may "accept" Cain's "counteroffer"            of $130,000,  but  only  subject to  final  approval  by  the            appropriate  FDIC authority.   We are  unable to  discern any            other  reading of the paragraph -- and Bourque has not guided            us  to  one --  that gives  some  reasonable meaning  to each            sentence.            D.  Conclusion: The June 23 Letter Was Not an Offer            ___________________________________________________                      Because the only  reasonable interpretation of  the            June  23   letter  is   that  Casey's  "acceptance"   of  the            counteroffer would  still be  subject to approval,  Casey was            not justified in believing that his assent to the offer would            conclude  the deal;  it was  "reasonably apparent"  that some            further act by the FDIC would be necessary to close the deal.            Cain's June 23  letter, therefore,  even though  it used  the            words "counter offer," was no offer at all; it was instead an            invitation for Bourque to  make an offer to buy  the Property            for $130,000.  Bourque  made that offer when he  returned the            amended purchase-and-sale  agreement to  the FDIC.   The FDIC            never accepted  the offer, however, so as a matter of law, no            contract was ever formed between the parties.                                         -19-                                          19                      Thus,   the  defendants  are  entitled  to  summary            judgment and the district court's decision is                      AFFIRMED.  Costs to appellee.                      AFFIRMED.  Costs to appellee.                                         -20-                                          20
