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At common law, an offeror who proceeds under a contract after receiving the counteroffer can accept the terms of the counteroffer by performance. See Diamond Fruit Growers, Inc. v. Krack Corp., 794 F.2d 1440, 1443 (9th Cir.1986) (citing C. Itoh & Co. (America) v. Jordan Int'l Co., 552 F.2d 1228, 1236 (7th Cir.1977)); Durham v. National Pool Equip. Co. of Va., 205 Va. 441, 138 S.E.2d 55, 58 (1964) ('Assent may be inferred from the acts and conduct of the parties.') (citations omitted).


See RESTATEMENT (SECOND) OF CONTRACTS § 19(1) (1981) ('The manifestation of assent may be made wholly or partly by written or spoken words or by other acts or by failure to act.'); Wells v. Weston, 229 Va. 72, 326 S.E.2d 672, 676 (1985) ('The mental assent of[contracting] parties is not requisite for the formation of a contract.... In evaluating a party's intent ... we must examine his outward expression rather than his secret, unexpressed intention.') (citations omitted).


'It is well settled that whether parties have entered a contract is determined by reference to the reasonable meaning of the parties' external and objective actions.' SGB Constr. Servs., Inc. v. Ray Sumlin ...

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