IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-00871-SCT THOMAS L. SWAREK AND THOMAS A. SWAREK

v. DERR PLANTATION, INC.

DATE OF JUDGMENT: 05/07/2015 TRIAL JUDGE: HON. VICKI R. BARNES TRIAL COURT ATTORNEYS: ROBERT R. BAILESS KENNETH B. RECTOR LEE DAVIS THAMES BENJAMIN McRAE W ATSON COURT FROM W HICH APPEALED: ISSAQUENA COUNTY CHANCERY COURT ATTORNEYS FOR APPELLANTS: BENJAMIN McRAE W ATSON JOHN C. HENEGAN ATTORNEYS FOR APPELLEE: KENNETH B. RECTOR ROBERT R. BAILESS NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION: AFFIRMED - 04/06/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KING AND BEAM, JJ. BEAM, JUSTICE, FOR THE COURT: ¶1. Thom as L. Swarek and Thom as A. Swarek, f ather and son, appeal f

rom the Issaquena County Chancery Court’s f i nding that n o binding enf orceable contract existed between the Sw a r e ks and Derr Plantation, Inc. (DPI) f or the lease and purchase and sale of Derr Plantation to the Swareks, thus deny ing Sware k s ’ e q u i t able-relief request f or specif ic perf orm ance. W e af

f irm the judgm ent of

the chancery

court.FACTS

¶2. The Swareks are Mississippi residents , r e s i d i n g i n H arrison County

. This action involves the f

ather’s negotiation s w ith DPI, 1 a Mississippi corporation and owner of Derr Plantation–a tract of Mississippi Delta f arm l and located in Sharkey a nd Issaquena C ounties, Mississippi, consisting of approxim ately 8,355 acres. ¶3. Derr Plantation is o w ned by a Germ an lim ited partnership, W ohnbau-Gesellschaf t H.
Derr m bH (W ohnbau Derr), the sole stockholder of DPI during the relevant tim e period of
Decem ber 2004 through May 2005. 2 Herm an Derr, age ninety -one, was DPI’s president. ¶4. In 2003, DPI advertised Derr Plantation f or sale at $10.5 m illion. In D ecem ber 2004, Swarek sent a handwritten m essage b y f a x to DPI, expressing an interest in buy ing the property f or $7 m illion. ¶5. Joachim W itt, an a ttorney in Germ any working f or Derr, called Swarek and inf orm ed him that the asking price was $10.5 m illion. 3 During their phone conversation, Swarek told
W i tt that he w as in contact with Greg Galloway , who worked f or Metropolitan Lif

e I nsurance Com pany (MetLif

e), and that he (Swarek) could obtain f inancing to purchase the property

. DPI, however, rejected Swarek’s of f e rs as too low.

1 S w arek ’s son was not a party t o any of the negotiations and had no c ontact with DPI at any tim e.
2 D P I co m m en ced its f

arm in g o p eratio n s in M i ssissip p i in 1 9 7 8

. 3 Witt, w h o sp eak s so m e E n g lish , w as re s p o n sib le f o r f in d in g p o t en tial b u y ers f

o r D e rr P lan t atio n . 2¶6. Af

terward, W itt sent Swarek a letter s igned by both W itt and Derr, thanking him f o r his i nterest in purchasing t he property

. A ttached to the letter was a s hort sales prospectus of the property

. ¶7. Later that m onth, Swarek wrote Derr and W itt, say i ng he had sent a signed contract
to P aul Pillat of Transactional Ventures, Inc. Swarek t estif ied he sent the proposed contract through Pillat because W itt had d irected him t o Pillat. DPI had been involved with Pillat f or the purpose of

providing reports regarding the property , along with interested buy ers. ¶8. On January

2, 2005, Pillat sent a letter to DPI with Swarek’s of f er that provided f

or the purchase price of

$7 m illion. DPI again rejected the of f er. ¶9. On January 13, 2 005, Derr, who did not s peak English, sent a letter translated by W itt, i n d i cating an interest in Swarek’s of f er to lease the property bef o re purchasing it , w h i c h would i ncrease the total consideration. Swarek h ad b een i n telephone com m unications with
W i tt and there were discussions about entering i nto a l e a s e agreem ent prior t o a n eventual sale. T he January 13 letter contained a m ention o f DPI ’ s current tenant, Jam es Hay , the principal of “JAPATAHA” (a general partnership), along with the statem e n t , “ W e did not
y et decide on a continuation of a lease with him

. ” ¶10. On January 18, 2005, W itt s e n t a l e t t e r t o S warek with a draf ted lease contract attached to it. The lease contract proposed a right of f irst ref usal f or S warek. Swarek wrote back, indicating he was interested in leasing the f a rm only in order to purchase i t, and he did
not want a right of f

irst ref usal. Swarek m ade a num ber of proposals in the letter including again, a purchase of

f er of $7 m illion.

3¶11. By January 20, 2005, D PI had of f ered Swarek an a l ternative p roposal that allowed f or

a lease period of two y e ars f or $250,000 per y ear, with a f inal purchase p rice of t he f arm f or $7.5 m ill i o n . D P I also proposed $50,000 in earnest m oney , a nd the request t hat Swarek provide “reasonable security ” f or the pay m ents. ¶12. The f

ollowing day , Derr sent Sw a r e k a l e t ter stating that DPI h ad received a “m ore f avourable of

f er” by a “serious potential purchaser” which DPI would like to negotiate. Derr
sent a sim ilar letter to Pillat the sam e day

. W i tt later t estif ied there were no ot h e r s e r ious potential buy ers during this tim e. ¶13. On January 2 6, 2005, Derr sent a letter to Swarek inf o rm ing him they w ere preparing contract draf

ts to be sent to Swarek, notwithstanding the other “com petitive” of

f er. ¶14. O n J a n u a ry 27, 2005, Swarek r esponded and proposed a three-y ear l e a s e w i t h a pay m ent of the purchase price “on or bef ore February 28, 2007,” which w o uld be “af ter the three (3) y ear rental period.” The proposal w as f o r three annual lease p ay

m ents of $250,000 f or a t otal of $750,000 within two y ears, and then to p u r c h a s e the property on or bef ore February 28, 2007 f

or $7.5 m illion. Swarek f urther of f ered, inter alia, t o pay the property taxes f or the y ears 2004, 2005, and 2006. ¶15. Subsequently , on J anuary 30, 2005, D PI wrote t o S w a r e k t o clarif

y the “contradictory ”
term s. W i tt testif

ied that he t elephoned Swarek to conf irm the term s o f Swarek’s of f er, and Swarek af

f irm ed t h a t t h e t erm s were correct. Swarek h ad not y e t received the January 30 letter, but W itt testif

ied he read the letter to him over the phone.

4¶16. On February 9, 2005, Swarek a lso of f ered i m m ediately t o prepay $498,000 to DPI’s bank account to resolve DPI’s c oncern about f uture pay m ents bei n g s e cured. A s a result,
W i tt p repared a letter to Swarek, reviewed and signed by Derr, o n February 10, 2005. The letter indicated that DPI “is ready and willing to accept entering into a Lease and Sale and Purchase Contract with y ou in com pliance w ith y our proposals b y y o ur f ax f r om January 27, 200 4 ( 5 : 4 8 p.m .)[ .]” The February 10 letter contained the “ present lease and purchase conditions” of Swarek’s proposal; that is, three lease pay m e nts totaling $750,000 within two
y ears and the purchase price of $7.5 m i llion on February 28, 2007 (plus a n additional am ount f or taxes and insurance). T he February 10 letter also i ndicated that “draf ted detailed Lease Contract through D ecem

b er 3 1, 2007[ ,] and Purchase and Sale Contract i ncluding p roviding closing f or February 28, 2 007[ ,] are t o b e a g r e e d u p on and to be executed by March 1, 2005[ ,] or another date to be arranged between seller and purchaser[ .]” Further, t he February 10 letter i ndicated that $50,000 i n earnest m oney was to be paid at the “ e xecution of sale and purchase contract.” ¶17. The Feb r u a r y 10 letter concluded with the f o llowing: “Draf

ted detailed Lease–and Purchase and Sale Contracts w ill be subm itt e d t o y o u by Monday , February 14, 2005, as already announced. For the execution of b oth t hese necessa r y c o n t r a cts we should like to propose and provide a date beginning f rom February 28, 2005.” ¶18. Swarek had o f

f ered to c om e to Germ a ny to execute the L ease and Purchase and Sale contracts, which Derr acce p t e d i n t h e F ebruary 10 l etter. Swarek and his wif e arrived in Dusseldorf

, Germ any , the evening of February 13, 2 005. Swarek testif i ed h e called W itt

5while he was in Paris earlier that day to let him know he was com ing to Germ any . Swarek

testif i ed h e was “anxious” to get a f irm and binding of

f er signed so h e c o uld b egin f arm ing,

as i t was getting late i n the season. W itt testif ied he was surprised at S warek’s early arrival, but he m et the Swareks and d ined with them that evening, i nf orm ing Swarek that, although the proposed purchase contract was not y et com pleted, the lease contract was f inished. ¶19. The f

ollowing day , Febr u a r y 1 4 , 2 0 0 5 , W itt brought the S wareks to the of f ices of
W o hnbau Derr. W itt testif ied that Swarek inf

orm ed him that he needed a s tatem ent signed by W itt a nd Derr to f

acilitate the f

inancing by MetLif

e. Swarek testif

ied that MetLif

e needed

a f irm and binding of

f er. Swarek then handwrote a d ocum ent. W itt dictated this docum ent
to his secretary , w ho ty

ped the docum e nt i n both Germ an and E nglish, hereinaf ter the

“ F e b r u ary 14 docum ent.” W itt m ade m odif ications to t he handwritten statem ent, whic h included d eleting the words “option to” f rom the phrase “option to se l l

. ” T he ty pewritten February 14 docum ent incorporated the te r m s a n d c o nditions of the February 10 letter. Swarek then signed the docum ent. ¶20. Af terward, S warek waited downstairs while W i tt lef t to present the docum ent to Derr. Following a brief discussion of the docum ent with W i tt, Derr and W itt signed the docum ent. The docum ent was given back to Swarek and a copy was m ade f

or DPI’s f

iles. ¶21. S w a r e k a n d h is wif e then m et and visited with Derr in his of f ice f or ten to twe n t y

m inutes, with other board d irectors present. Swarek testif i ed that the issue of p ay

m ent was

never brought up, e ven though he h ad brought his checkbook with him on t he t rip. W olf gang T e rjung, one o f W ohnbau Derr’s board of directors, who was present, testif ied there wer e

6conversations about m eeting Swarek on the f arm in Mississippi by the next week t o discuss the current tenant, Jim

Hay , and to prepare a sm ooth transition. Mrs. Swarek took a photo of Swarek handing Derr a one-dollar bill. ¶22. During Swarek’s visit i n Germ any , W itt gave S warek the lease h e had d raf ted and a letter t hat identif

ied a bank f

or the deposit o f the $498,000, although t he inf orm ation f

or the bank account was i ncorrect and ha d t o be c orrected by W i tt. There was t estim ony that Swarek wrote the new i nf o rm ation onto the docum ent. The parties did not execute the lease
agreem ent in Germ any . Im m ediately f ollowing the m eeting w ith D err and t h e o t h e r DPI directors, W itt took the Swareks to the airport f o r their return f

light to t he United States. The Swareks arrived back in Mississippi by February 16, 2005. ¶23. On February

15, 2005, DPI sent a letter to Swarek that Swarek later testif ied he did
not receive until af

ter the lawsuit had been f iled, which gave Swarek t h e c o r r e c t w iring instructions f

or the advance pay

m ent of $498,000. Also on February 15, Swarek s ent a f ax to DPI, in which Swarek stated there was an agreem ent f or his son, Thom a s Swarek, t o be

one of the “buy ers and or lessors (sic) to the option to purchase and lease.” According to DPI

on appeal, Swarek used the word “option” to describe the status of t he existing negotiations with DPI. ¶24. On February 16, 2005, Swarek telephoned W itt and t old h i m t h e F e b ruary 10 letter contained a m istake that had originated in Swarek’s of f e r. Swarek testif

ied he had m ade a ty po, and he had intended to close the purchase of the DPI p roperty by February 28, 2008,

n ot February 28, 2007. E ssentially , Swarek said he m eant to pay o nly two lease p ay m ent s

7within two y ears, n o t three lease pay m ents within two y ears. Swarek t old W itt he intended
to pay base lease pay

m ents totaling $500,000 f or a total c onsideration of $8 m illion instead of lease pay

m ents of $750,000 f

or a t o t a l c o nsideration of $ 8.25 m illion as stated in the February 14 docum ent. Swarek threatened to withdraw his of f e r altogether if D PI ref

used
to renegotiate the term s of t h e t r ansaction and told W i tt that DPI would be r equired to f ile

su i t f o r s p e cif i c perf orm ance if DPI i nsisted upon the term s contained in the February 10 letter. ¶25. Swarek a dditionally wrote DPI on F ebruary 16, 2005, s tating he was “sorry f or this mi s take on m y part and will increase the earnest m oney towards t he purchase b y ($100,000.00) One H undred Thousand D ollars and will increase the purchase price earnest

am ount b y ($100,000) One Hundred Thousand Dollars on March 1, 2 0 0 6

. ” Swarek concluded in the letter that, “I will agree to y ou [ sic] f a x prior to m y f

ax to y ou on January 27, 200 5

. . . in which y ou of f er m e the property f

or ( 2) y e ars rental and a f i nal price of ($7,500,000) 7.5 Million Dollars on February 28, 2007.” ¶26. On February 18, 2005, Derr sent Swarek a letter t ha t s t a t e d D P I w a s “ r eady and willing to accept e ntering into a Lease and Sale a nd Purcha s e Contract w ith y ou in

com pl i a n c e w i t h y o ur subm i tted m odif ied proposals.” T he February 18 l etter contained a

new lease and purchase agreem ent that increased the initial earnest m oney to $100,000. It also required a “trustworthy guarantee” of the additional e a rnest m oney pay m e n t of f ered by Swarek. The last paragraph f urther provided that DPI’s “righ t o f withdrawal f rom this f oregoing agreem ent will b e reserved until February 28, 2005, i n the event of its e xercise to

8the result, that the agreem ent f rom January 27, February

10 and 16, 2005[ ,] rem ains in f ull

e f f e ct.” DPI provided Swarek with a proposed sale and purchase contract and a p r o p o s e d lease agreem ent. Swarek r ef used to sign this F ebruary 1 8 a g r e e me n t, because a provision contained in the F ebruary 14, 2005, instrum ent, say ing that the contract was f i rm and binding and t hat it m ight be altered only in the f orm of a written agreem ent by both parties, had not carried over. And Swarek w anted nothing short of “f irm and binding.” Swarek also testif ied that he did not understand what constituted a “trustworthy guarantee.” ¶27. On February 19, 2005, W itt arrived in Mississippi, and T erjung arrived t he next day in a ccordance with the February 10 letter, which stated that W itt and Terjung w ould stay on the f arm in order to “prepare the delivery of possession of

the lease property .” ¶28. Conversations between Swarek and W itt, and W i tt and C.P. Clay , a f riend o f Swarek’s who was f

am iliar with the property in dispute, occurred on February 20 a nd 21, 2005, which included conversations concerning DPI’s current tenant, Hay

. The conversations eventually culm inated i n Swarek r equesting D PI to choose am ong three (3) proposals, which included
two new proposals by Swarek in addition to the p roposals m ade by Swarek on February 16. Swarek did not i nclude an of f er t o perf orm t he term s contained i n t he F ebruary 14 docum ent. Swarek also insisted f

or the f irst tim e t hat he should have the rig h t t o p u r c h a s e Derr Plantation prior to February 28, 2007. This right would allow Sw a r e k t o t erm inate his obligation to pay a ny lease pay m ents and f

u rther reduce the consideration d ue to DPI to an

am ount less than that stipulated in the Februar y 14 d ocum ent and i n the February 16 letter Swarek sent to DPI.

9¶29. U l t i ma t e l y , n e g o t i a t i o n s b r o k e d o w n , a n d D P I d e c i d e d t o d i s c o n t i n u e

com m unications with Swarek. On February 2 2, 2005, Swarek’s attorney , Bill Bost, sent a letter to D PI’s Mississippi attorney , Bobby Bailess. The letter insisted that Swarek “rem ains ready , willing, and able to p erf orm ” under the term s and conditions contained in the February 10, 2005, letter, as ref

erred to i n the February 14 docum ent. Bailess replied on February 22, 2005, a nd gave perm ission f or Swarek a nd/or M etLif

e to inspect the p roperty

. The next day , Bailess wrote to Swarek, s ay ing that DPI did not consider an enf orceable contract to exist between the parties. ¶30. On February 2 8, 2005, Bost sent a letter to Bailess, stating in part: “Derr is t o deliver

a s a l e s agreem e nt and l ease agreem ent. T he a greem ents previously f urnished can b e

m odif ied t o correct the earnest m oney deposit and to otherwise m ake them com ply with the February 10 agreem ent.” ¶31. On March 1, 2005, the S wareks f iled a com

plaint and lis pendens notice against DPI and D err in the chancery court, alleging breach of c ontract and seeking specif ic perf orm ance and com pensator y a n d p u n i tive dam ages in t he am ount of $6,675,000. 4 A f ter extensive pretrial m o tions and other delay s, a ten-day trial w as h eld on the m erits, beginning in January 2013 and concluding on S eptem ber 27, 2013. The chancery court heard extensive testim ony f rom the parties and subsequently f ound that the F ebruary 14 docum ent w as executed when the parties had not agreed on all o f the m aterial provisions, and was not i ntended as a contract f or the sale of the property ; t hus, it was i nco m p l e t e and could n ot be given legal ef f ect.

4 In 2 0 1 0 , th e S w arek s d ism issed th eir c l a i ms w ith p r ej u d i ce a g ain st D err in h is in d iv id u al cap acity

. 1 0Accordingly , the court f ound no binding and e nf

orceable c ontract existed between the parties f or the lease a nd purchase and s ale of Derr P lantation to the Swareks and t heref ore denied the Swareks’ request f

o r specif ic perf orm a nce and dam ages. ¶32. This appeal f

ollowed, with the three f ollowing a s s i g n me n t s o f e rror r aised by the Swareks, sum m arized h ere as f ollows: (1) the trial c ourt e rred as a m atter of law in f inding

am biguity about t he specif

ic date f or signing the additional docum ents required by the contract; (2) the trial court erred as a m atter of law when, upon f inding am biguity about the specif ic execution date f

or the lease and purchase docum e n ts, it then f ailed t o (a) determ ine

a r e a s onable t im e f

or the parties to com

p lete the preparation and signing of t he th o s e docum ents; and (b) order the parties to do so within a reasonable tim e; a nd ( 3) the trial court erred when, u

pon f i nding an am

biguity a bout t h e s p e c i f

i c execution date f

or the two docum ents, it then relied upon trial testim ony to f ind that t he parties never had intended to enter into a binding contract, despite the docum ents’ clear and unam biguous language that it was “f i rm and binding” on the parties. ¶33. The Swareks ask that we reverse the chancery court’s j udgm ent and direct the court
to order s p e c i f

ic perf orm a nce of the “February 14 contract,” whereby DPI transf ers Derr Plantation to the Swareks in exchange f or (a) $8.25 m illion to DPI (which r epresents the total

am ount of

the lease and purchase pay m ents); or (b) in the alternative, if DPI is not entitled
to pay m ent of the am ounts related to the lease p ay m ents since the lease t erm has expired and
cannot b e specif

ically enf orced, t hen pay

m ent of $7.5 m i llion to DPI within a r easonable t im e not to exceed 120 day s f

r om the entry of this Court’s m andate.

1 1DISCUSSION

¶34. While s pecif

ic perf orm ance is an appropriate rem edy in ma t t e r s r e l a t i n g t o r e a l property , it i s not a m atter of right in Mississippi, b ut is a m atter of grace. Roberts v. Spence , 209 S o. 2d 623, 6 25 (M i s s. 1968). An application f or specif i c perf o rm ance is lef

t to the chancery court’s sound discretion, “controlled and regulated by established equitable principles.” Id

. Moreover, “[ s]uits f or specif ic p erf orm a nce are not governed by the sam e principles as su i t s a t l a w f or dam ages or suits i n equity to set aside e xecuted contracts.” Picket v. Boutwell , 125 So. 2d 8 22, 823 (Miss. 1 9 6 1 ). In such suits, “a weaker case is suf f i cient to def

eat the action.” Id

. ¶35. At the outset, we agree with the chancery court t hat no suf f icient m eeting of the m inds occurred between the parties as to the term s and conditions set f orth in the F ebruary 10 letter. Thus, the February 14 d o c u me nt did not constitute a valid and enf orceable contract. But,

even i f we were to conclude that it did constitute a valid contract, t he f a cts a t tending this case indisputably show t hat Swarek r epudiated it by the m a nif estations and declarations he m ade thereaf ter. ¶36. Again, on February 16, Swarek inf orm ed DPI that he had intended to pay only two,
not three, lease pay

m ents within t wo y ears, which would h a v e r e s u lted i n a total purchase price of $8 m illion f

or the property , not $8.25 m illion as set f orth in the February 10 letter. ¶37. Sware k t h e n t o l d D P I that if it insisted on the term s contained in the February 10 letter, he would walk away f rom the deal, and D P I w o uld have to sue him f or “specif

ic perf orm ance.”

1 2¶38. Still willing to negotiate with Swarek, DPI sent anothe r p r o p o s a l t o S w a r e k on

February 18, agreeing to the n e w term s Swarek h a d e x p ressed on February 16. But the February 18 proposal required Swarek to provide a “trustworthy guarantee” f o r the pay m ent of additional e arnest m oney Swarek of f ered to pay , due t o what Swarek claim ed w a s a “m istake” on his part with r e gar d t o t h e t o t al num ber o f lease pay

m ents and the f

inal purchase p rice set f

orth in the Feb r u a r y 1 0 l etter. Swarek ref used t o s ign the February 18 proposal because Swarek wanting “nothing s h ort of f irm and binding[ , ]” and Swarek did not understand what constituted a “trustworthy guarantee.” ¶39. Af terward, when W itt a nd Terjung arrived in M ississippi to “ p repare the delivery o f
p o s s ession o f the lease property [ ,]” Swarek proposed three new options f o r DPI, none o f which included an o f

f er to perf

orm the term s contained in the February 10 letter, incorporated into the February 14 docum ent. ¶40. DPI ef

f ectively walked away f

rom the table at that point. And t he Swareks then sued
DPI in chancery court, claim ing they were “ready and willing” t o perf orm u nder the term s and conditions contained in the February 10 letter, which they m aintain were m ade f irm and binding by

the February

14 docum ent. ¶41. We a g r e e w i t h D P I t h a t this case is s om ewhat s im ilar to Gulf South Capi t a l Corporation v. Brown , 183 So. 2d 802 (Miss. 1 966). There, the president o f Gulf South had negotiated with the executor of an estate f o r the p urchase of a m otel owned by the estate. Id

. at 803. T he buy er and seller thought they had agreed o n the term s of the purchase, and the buy er draf

ted and presented the seller a purchase contract, w hich the p arties then e xecuted.

1 3Id

. The next day , the buy er sent the seller a check f or t h e e a r n e s t

- money d eposit in the

am ount agreed upon. Id

. A t the bottom o f the c heck, the buy er included a n otation, which

s t a ted in part: “This deposit returnable in the event good title cannot be convey ed to G u l f South

. . . as specif

ied in [ the] a greem ent[ ,]

. . . or if suitable agreem ent cannot be reached

on elim inating Materials Lien recorded against property by Jam es J. Curro.” Id

. The seller considered t he m a terials-lien provision to constitute a new condition; rejected it, and r e t u r n e d the check to the buy er. Id

. at 804. The buy er then sued the seller i n circuit court f or breach of contract. I

d

. The circuit court f

ound that th e p u r c h a s e c o ntract w as am biguous and

om itted im

portant necessary

provisions, and ruled in f a v or of the seller. Id

. ¶42. This Court af

f irm ed the circuit court o n appeal. Declining to consider all the circuit court’s reasons f

o r dism issal of the suit, th e B r o w n Court c oncluded that the buy er “m aterially breached i ts contract, and in e f f ect repudiated it, by te n d ering earnest m oney subject t o an unacceptable, m aterial condition[ ,]” i.e., the m a terials-lien provision. Id

. Brown reasoned that, “[ i[ f the buy er has com m itted a m aterial breach, or has by repudiation

m anif ested an i ntention to com m it such, the other party should be excused f rom the obligation to perf

orm f urther.” Id

. (c i ting 6 W i lliston, Contracts § 864 (3d ed. 1962);
Restatement of C

ontracts § 275 (1932)). “The m ateriality of the breach i s the decisive f actor.” Id

. “Repudiation of a m aterial part of the contract e x cuses the other p arty , although

a b r e ach m a y be m aterial without such repudiation, a nd i f so, s hould e xcuse the in j u r e d party .” Id

. at 805 (citing 6 W illiston, Contracts § 865 (3d e d. 1 962)). “Thus t he repudiation

1 4of his duty b y one o f the parties t erm inates the duty o f the other, g i v i ng the latter the legal

privilege of ref

using to render the return perf orm ance.” Id

. ¶43. That is e ssentially what occurred here. Based on Swarek’s com m unications with DPI

on February 16, and subsequent thereto, there was a s ubstantial, m aterial variance between DPI’s u nderstanding of the term s set f orth in the February 10 letter and the term s Swarek said he h ad intended. These term s concerned the d uration o f t he l ease and the total purchase price f o r the property , and were no doubt m aterial. Swarek having inf orm ed DPI h e would not perf orm according to the t erm s contained in the February 1 0 letter, D PI was excused f rom any return perf

o rm ance obligation(s) it m ay have had under those term s. ¶44. On appeal, the Swareks rely on Prestenbach v. Collins , 159 So. 3d 531 (Miss. 2014), and Creely v. Hosem ann , 910 So. 2d 512 (Miss. 2005), f or their argum ent(s) contending that the chancery c ourt erred in f inding am biguity a b out t he specif

ic execution date f

or the lease and purchase docum ents. T hose cases, however, are i napplicable here, as they involved the validity and enf

orceability

of option contracts. That m ay have been what the Swareks and
DPI were attem

pting to enter into e ventually at t he closing scheduled f or February 28 through March 1, 2 005, in t his m atter. But the February 14 docum ent did n ot constitute this ty pe of
contract. CONCLUSION ¶45. F o r t h e a

bove s tated reasons, we af f irm t he chancery court’s d ecision to deny t h e Swareks’ request f

or specif ic perf orm ance. ¶46. AFFIRMED.

1 5WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING,

COLEMAN, MAX WELL AND CHAMBERLIN, JJ., CONCUR.

1 6