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next day, Mr. Lindenbaum left a telephone message for Mr.
Sherland that an error was made in the January 14, 2002, fax, and
Mr. Sherland would receive the corrected figures by fax. On that
day, Mr. Lindenbaum sent a fax to Mr. Sherland (the January 17,
2002, fax). The fax stated:
Unfortunately my fax to you was incorrect. I had left
off page six and in the rush to get it out to you used
the value of property in 1987 as the final value and
not the value of decedents [sic] interest at the time
of death of $1,124,410. I told you this was the amount
over the phone and discussed that I was following the
method that you used on the tax return but using the
starting value for the real estate of $1,000,000 and
while I felt their [sic] was an argument for no
discount I would allow a 15% discount for settlement.
We did discuss the final value of $1,124,410.
On January 22, 2002, Mr. Sherland sent a fax to Mr.
Lindenbaum which stated:
Everyone now realizes that the first figures you
discussed with me on the phone and your settlement fax
offer are substantially different. We believe that you
made an honest mistake. However, for our part we
believe, after deliberating with our counsel and our
client, that we had accepted a basis of settlement that
made sense if you took into account both the expenses
and uncertainties of litigation.
Mr. Sherland further informed Mr. Lindenbaum that a basis of
settlement had been reached. In a telephone conversation soon
after, Mr. Lindenbaum told Mr. Sherland that Mr. Lindenbaum would
only discuss the figures in the January 17, 2002, fax and
discussed in the January 14, 2002, telephone conversation (i.e.,
the value of $1,124,410). Mr. Lindenbaum did not feel an
agreement had been reached with the estate and, therefore, did
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