Duke v. Whatley
| Decision Date | 08 May 1991 |
| Docket Number | No. 89-CA-1320,89-CA-1320 |
| Parties | Jimmy DUKE and Peggy Duke v. Lillian J. WHATLEY, Charley Whatley and Glenda Whatley. |
| Court | Mississippi Supreme Court |
James C. Helveston, Edwards Storey Marshall & Helveston, West Point, for appellant.
Lee S. Coleman, Coleman & Coleman, West Point, for appellee.
Before DAN M. LEE, P.J., and PRATHER and BANKS, JJ.
This is an appeal from the Clay County Chancery Court wherein the chancellor denied the plaintiff's request to specifically enforce an agreement between Mrs. Lillian J. Whatley and Jimmy and Peggy Duke. At the end of a one day hearing, Chancellor Brand rendered a bench decision against the plaintiffs. The opinion concluded that the litigants were parties to a contract which was not enforceable in that the agreement lacked specificity of price as required by the law governing contracts for the sale of realty and the remedy of specific performance. Subsequent to his bench decision, the chancellor entered a formal decree which memorialized the prior bench opinion. The plaintiffs, Jimmy and Peggy Duke, being aggrieved, have appealed assigning one issue, which is the central issue of the suit, as error.
ISSUE: Is the January 15, 1987, agreement executed by Jimmy Duke, Peggy Duke and Lillian J. Whatley sufficiently specific and distinct in its terms and plain and definite in its meaning so as to support a decree for specific performance?
After a review of the record and briefs and for the reasons that follow in this opinion, we affirm the final decree entered by the chancellor, finding the agreement between the parties lacking the requisite specificity of purchase price needed to support the remedy of specific performance.
Mrs. Lillian J. Whatley is a Tennessee resident who owned one hundred and seven (107) acres of land in rural Clay County, Mississippi, located approximately seven miles from the city of West Point. This property had been in Mrs. Whatley's late husband's family for many years and was apparently the family homestead. Jimmy and Peggy Duke live in a rural residential area which is adjacent to the subject property. At some point in 1985, the Dukes entered into a lease/option agreement with Mrs. Whatley wherein the Dukes leased this property with an option to purchase at the end of the lease period for a purchase price of fifty thousand dollars [$50,000.00]. The Dukes used this property as pasture land in connection with their cattle operation.
The original lease/option agreement expired without the option being exercised by the Dukes, and the original contract is not in issue here. However, near the end of the expiration of this lease, the Dukes made plans to have a new, similar agreement executed with Mrs. Whatley. First, Mr. Duke contacted a local attorney who drafted a, "REAL PROPERTY LEASE AND OPTION TO PURCHASE." Terms of the agreement included the following.
This Contract made and entered into this day by and between LILLIAN J. WHATLEY of [address omitted] hereinafter referred to as SELLER, and JIMMY D. DUKE and his wife, PEGGY S. DUKE, of Clay County, Mississippi, hereinafter referred to as BUYERS, WITNESSETH:
1.
For and in consideration of the mutual promises and agreements of the Seller and of the Buyers herein contained, the Seller hereby leases to the Buyers the land situated in the County of Clay, State of Mississippi, described as follows, to-wit:
A tract of land containing 107 acres, more or less, 75 acres of which is located in Section 14, Township 17, Range 5 East, and 32 acres of which is located in Section 11, Township 17, Range 5 East; and being the same land conveyed to John O. Whatley and his wife, Lillian J. Whatley, by Warranty Deed dated January 8, 1962, and recorded in Clay County Deed Record 94 page 503 LESS several lots conveyed off of said land by John O. Whatley and Lillian J. Whatley, leaving 107 acres, more or less.
Buyers agree to pay Seller One Thousand Five Hundred Dollars ($1500.00) in each of the years 1987, 1988, and 1989, payable in two (2) payments of Seven Hundred and Fifty Dollars ($750.00) each on January 1st and November 1st in each of the said three years. Said annual payments of $1,500.00 shall be considered as lease payments, but in the event the Buyers exercise the option to purchase, then all said payments made shall apply on the purchase price.
2.
This option may be exercised by the Buyers at any time while the offer herein shall remain in force by mailing, telegraphing or delivering in person a written notice of acceptance of the offer herein to Mrs. Lillian J. Whatley, who is the widow of John O. Whatley, at [address omitted]. The offer herein shall remain irrevocable for a period of three (3) years from the date hereof.
3.
Upon payment by the Buyers to the Seller of the sum of $50,000.00, less credit for lease payments made, the Seller agrees to execute and deliver to the Buyers a good and sufficient general warranty deed conveying to the Buyers merchantable, fee simple title to said land, free from all liens, encumbrances and exceptions, except the lien of taxes for the then current year, which shall be pro-rated by and between the Seller and the Buyers as of the date of delivery of the Warranty Deed.
WITNESS OUR SIGNATURES, in duplicate originals, this the 10th day of December, 1986.
SELLER
BUYER
BUYER
STATE OF TENNESSEE
Personally appeared before me, the undersigned authority of law in and for the State and County aforesaid, LILLIAN J. WHATLEY, who acknowledged that she signed and delivered the above foregoing Lease and Option to Purchase Real Property on the date therein stated.
Given under my hand and official seal, this the ___ day of December, 1986.
/s/______ NOTARY PUBLIC
My commission expires ____________.
Mr. Duke drove to Tennessee and delivered the agreement to Mrs. Whatley. Within a few days, Mrs. Whatley made significant modifications in the agreement and returned the document by mail. The Dukes readily noticed that Mrs. Whatley had lined through almost all references to an option contract in the agreement. Mrs. Whatley also initialed each section which she omitted with an "L.W.," to publish the fact that she was changing the terms. She omitted everything in the language which is quoted above with the exception of the first sentence which addressed lease payments. Mrs. Whatley omitted all terms which concerned purchase price, the application of lease payments to a purchase price, the conveyance by deed and all references to "option to purchase" contained in the body of the agreement.
The document, after modified by Mrs. Whatley, provided the following.
This Contract made and entered into this day by and between LILLIAN J. WHATLEY of [address omitted] hereinafter referred to as SELLER, and JIMMY D. DUKE and his wife, PEGGY S. DUKE, of Clay County, Mississippi, hereinafter referred to as BUYERS, WITNESSETH:
1.
For and in consideration of the mutual promises and agreements of the Seller and of the Buyers herein contained, the Seller hereby leases to the Buyers the land situated in the County of Clay, State of Mississippi, described as follows, to-wit:
A tract of land containing 107 acres, more or less, 75 acres of which is located in Section 14, Township 17, Range 5 East, and 32 acres of which is located in Section 11, Township 17, Range 5 East; and being the same land conveyed to John O. Whatley and his wife, Lillian J. Whatley, by Warranty Deed dated January 8, 1962, and recorded in Clay County Deed Record 94 page 503 LESS several lots conveyed off of said land by John O. Whatley and Lillian J. Whatley, leaving 107 acres, more or less.
Buyers agree to pay Seller One Thousand Five Hundred Dollars ($1500.00) in each of the years 1987, 1988, and 1989, payable in two (2) payments of Seven Hundred and Fifty Dollars ($750.00) each on January 1st and November 1st in each of the said three years. "L.W." /s.
2.
This option may be exercised by the Buyers at any time while the offer herein shall remain in force by mailing, telegraphing or delivering in person a written notice of acceptance of the offer herein to Mrs. Lillian J. Whatley, who is the widow of John O. Whatley, at [address omitted]. The offer herein shall remain irrevocable for a period of three (3) years from the date hereof.
3.
Personally appeared before me, the undersigned authority of law in and for the State and County aforesaid, LILLIAN J. WHATLEY, who acknowledged that she signed and delivered the above foregoing Lease . "L.W." /s.
Given under my hand and official seal, this the 6 day of January, 1987.
/s/______ NOTARY PUBLIC
My commission expires 11-4-90.
EXHIBIT A.
Additionally, at the bottom of the second page of this two page agreement, Mrs. Whatley added the following paragraph in her own handwriting.
Should I, Lillian J. Whatley decide to sell at end of three years, I will give Peggy and Jimmy Duke the first chance to buy.
1/5/87 [Lillian J. Whatley] /s
When the Dukes received the contract in the mail and noted the changes that Mrs. Whatley made, they fully accepted the revisions and returned the agreement to their attorney who recorded the document at the Clay County Courthouse. The Dukes have made all payments which were required under the agreement. Under fundamental principles of contract law, the agreement which the Dukes sent to Mrs. Whatley was an offer which she rejected by way of a counter offer in that she changed the terms of the agreement. Mrs. Whatley's...
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