C.G. Schmidt, Inc. v. Tiedke
In C.G. Schmidt, Inc. v. Tiedke, 181 Wis. 2d 316, 510 N.W.2d 756 (Wisc. App. 1993), the Wisconsin Court of Appeals held that a counteroffer "in effect, contained no restriction on time for acceptance because delivery occurred after the express deadline." Id. at 758. In Tiedke, the appellant delivered a counteroffer to purchase property with a deadline to accept the counteroffer by 12:00 p.m. on August 20. Id. at 757. However, the appellant delivered the offer after the deadline had passed. Id.
The Tiedke court chose not to apply section 49 to its facts and instead relied on waiver to hold that a time restriction no longer remained when the offer was delivered after the deadline. Id. at 757-58. In effect, the court found the appellant waived the time restriction by delivering the offer after the deadline. Id. As a result, the time restriction fell out of the offer and the court simply disregarded it. Id.
P12 The Tiedke court opted to apply waiver instead of section 49 because it understood section 49 "to offer guidance for situations where communication of an offer is delayed but still occurs within the period of time during which the offer may be accepted under the terms of the contract." Tiedke, 510 N.W.2d at 758.