IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CA-00334-SCT

JACK EDWARDS AND DOT EDWARDS

v.

WURSTER OIL CO., INC.

DATE OF JUDGMENT: 03/01/93

TRIAL JUDGE: HON. EDWARD G. CORTRIGHT JR.

COURT FROM WHICH APPEALED: LEAKE COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANTS: JOHN W. CHRISTOPHER

ATTORNEY FOR APPELLEE: KENNETH WATTS

NATURE OF THE CASE: CIVIL - CONTRACT

DISPOSITION: AFFIRMED - 2/13/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 3/6/97

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. Here we are called upon to determine whether the compliance with the terms of a contract

constitutes acceptance of such contract, resulting in the waiver of all claims thereunder. We conclude

that the chancellor's finding that plaintiffs' performance under the terms of its contract with Wurster

Oil constituted acceptance or ratification of the contract is not manifestly erroneous. We, therefore,

affirm.

I.

¶2. In the fall of 1990, the plaintiffs, Jack and Dot Edwards (hereinafter, the Edwardses), had been

engaged in the operation of a convenience store in Walnut Grove, Mississippi, for approximately two

years. They had decided to find a supplier for petroleum products in order to sell gasoline at their

store. During the latter part of November or early December 1990, Pat Thaggard, a friend of the

Edwardses, introduced them to David Knapp, a representative of Wurster Oil Company, which was

headquartered in Louisiana, but had been doing business in Mississippi. Knapp met with the

Edwardses to survey their property and discuss the possibility of Wurster Oil supplying them with

gasoline.

¶3. A couple of days later, Knapp met with the Edwardses again, discussing the process of installing
the equipment necessary to sell the gasoline. Jack and Dot Edwards, as well as their daughter and

son-in-law, Sandra and Delbert Lathem, were present during the meeting. Knapp presented the

Edwardses with a copy of the Gasoline Sales Lease and the Gasoline Sales Agreement, both of which

contained several blank spaces. The Edwardses signed the documents, while David Knapp, Delbert

Lathem and Sandra Lathem witnessed them. However, the documents were not signed by any

representative of Wurster Oil which would bind Wurster to the contract.

¶4. After the documents were signed by the Edwardses, they were delivered to Jim Thornton,

secretary-treasurer and part owner of Wurster Oil Company. After receiving the documents,

Thornton visited Walnut Grove to determine whether the Edwardses had an acceptable location

which fit the company's criteria. Thornton discussed with the Edwardses and the Lathems the

improvements necessary to be made to the land for the sale of gasoline. After meeting with the

Edwardses, Thornton decided to approve the contract and notified Petron, Inc. of Alexandria,

Louisiana, an oil services construction company, to make the improvements and install the equipment

on the Edwardses' property. On January 15, 1991, Petron made an initial bid of $105,238.39.

¶5. The improvements were made and the Edwardses had begun selling Wurster Oil products by

February 1991. Under the terms of the Gasoline Sales Agreement, the Edwardses were to be

compensated on a split-the-profits basis and receive a commission equal to half of the profits for all

gasoline and petroleum products sold by them for Wurster Oil. However, the agreement referenced

an Exhibit "B", which states that the Edwardses were to be held responsible for half of the cost of the

improvements through the withholding of half of their commission. Thus, they would effectively

receive one-fourth of the profits from the sale of the gasoline.

¶6. The major dispute in this case arises from the portion of Exhibit "B" that was left blank when

signed by the plaintiffs. The plaintiffs assert that the entire section of the agreement was blank, except

for the signature lines. The defendants, however, assert that the entire section was filled in, except for

the signatures of the parties and the amount of the cost of the improvements. The final cost of the

improvements was $122,913.91 as submitted by Petron to Wurster Oil on April 25, 1991.

¶7. In March of 1991, after receiving two or three commission checks from Wurster Oil, Mrs.

Edwards informed Jim Thornton of her dissatisfaction with the amount that they were receiving, after

realizing that they were only receiving half of the commission they thought they were due. She also

requested a copy of the contract they had signed, a copy of the cost of the installation of the

equipment, and a calculation of the deductions that were made from their checks. All were received

in the latter part of April, 1991, after Thornton had obtained the total cost from Petron. After Mrs.

Edwards initially voiced her dissatisfaction with the deductions from their commission, Jim Thornton

discussed the contract with her on several other occasions and offered to allow the Edwardses to pay

for the installation of the equipment themselves, at a price of $122,913.91, or find another company

which would do so.

¶8. On January 10, 1992, the Edwardses filed suit against Wurster Oil in chancery court, alleging that

Exhibit "B" was "hopelessly contradictory" to the terms of the Gasoline Sales Lease and the Gasoline

Sales Agreement, and therefore should be declared void. They further requested an accounting for

the method used in calculating the per-gallon charge for the gasoline sold by the Edwardses on behalf

of Wurster and a judgment against Wurster Oil for all commissions unlawfully withheld by Wurster
Oil, as well as punitive damages, attorney's fees, and costs of court.

¶9. In the disposition of the lawsuit, the Chancellor held that the agreements completed by Wurster

Oil "made material additions to the agreements as signed by the Edwardses and constituted a

counteroffer." These material additions included the insertion of a detailed description of the

equipment to be installed at the bottom of the first page of the Gasoline Sales Lease, the insertion of

the date and length of time of the lease, as well as the insertion of the renewal terms of the lease by

Wurster Oil. The Chancellor further noted that "[u]pon receiving the final agreements, the Edwardses

had the right to reject them or accept them as they were."

¶10. The Chancellor then held:

[b]y thereafter permitting the defendant to continue to deduct from their share one- half of the

cost of the improvements [from May to the time of suit], the Edwardses accepted the

counteroffer. . . [T]he actions of the Edwardses have been consistent with their having a

subsisting contract with Wurster Oil Company. . . Pertinent in this regard is the fact that the

plaintiffs waited until January 10, 1992 (over eight months), after receiving a copy of the

contract before filing suit.

The Chancellor also held that the Edwardses were entitled to recover the amounts owed to them as a

result of an audit that was to be conducted to determine whether the plaintiffs had been underpaid

under the contract. The court denied the plaintiffs' request for attorney's fees and costs of court, and

failed to make any finding regarding whether Exhibit "B" existed as the plaintiffs assert at the time

they signed it or as the defendants assert.

¶11. The Edwardses appeal to this Court to consider whether the chancellor erred in ruling that they

had accepted the counteroffer of Wurster Oil as evidenced by the Gasoline Sales Lease and the

Gasoline Sales Agreement.

II.

¶12. Whether the chancellor properly concluded that the Edwardses made an "offer" to which

Wurster Oil replied with a "counteroffer" is of little consequence to the disposition of this case. The

relevant issue to be decided by this Court on appeal is whether the chancellor's ultimate conclusion

that the Edwardses' conduct after receiving the documents showing all of the terms from Wurster Oil

constituted their acceptance of the contract is manifestly erroneous.

¶13. A contract is not formed until an offeree accepts. Sweet Home Water v. Lexington Estates, 613

So. 2d 864, 871 (Miss. 1993); Houston Dairy, Inc. v. John Hancock Mutual Life Insurance Co.,

643 F.2d 1185 (5th Cir. 1981); Williams v. Favret, 161 F.2d 822 (5th Cir. 1947). It is a well-settled

principle of law that "acceptance of a contract as binding upon a party may be shown by his actions,

and any definite and unequivocal course of conduct disclosing that the party has acceded or assented

to it, is as binding on him as had he endorsed his assent in formal writing. . . ." Fanning v. C.I.T.

Corporation, 187 Miss. 45, 52, 192 So. 41 (1939); Old Equity Life Insurance Company, 217 So.

2d 648, 650 (Miss. 1969); McInnis v. Southeastern Automatic Sprinkler Co., 233 So. 2d 219, 222

(Miss. 1970); Misso v. National Bank of Commerce, Memphis Tennessee, 231 Miss. 249, 255, 95

So. 2d 124, 126 (1957).
¶14. The decisions rendered by this Court in reference to the ratification of contracts induced by

fraud are helpful in deciding the present issue. In Koenig v. Calcote, 199 Miss. 435, 25 So. 2d 763

(1946), this Court examined a suit to cancel a mineral deed executed by the Calcotes in favor of E. J.

Koenig for an undivided one-half interest in all of the oil, gas and other minerals under land owned by

the Calcotes over a period of ten years. The Calcotes alleged that the deed had been procured by

fraud.

¶15. The issue presented before the court was whether there was a subsequent ratification of the deed

by the Calcotes by their continuing to accept annually one-half of the rental amount provided under

the oil and gas lease held by the Sun Oil Company throughout the remainder of the ten year period,

after being advised of the import of the mineral deed held by Koenig in a letter from the Sun Oil

Company. Id. at 453-454. Quoting 12 C. J. S., Cancellation of Instruments, § 38, p. 996, this Court

held:

where a party, with knowledge of facts entitling him to rescission of a contract or conveyance,

afterward, without fraud or duress, ratifies the same, he has no claim to the relief of

cancellation. An express ratification is not required in order thus to defeat his remedy; any acts

of recognition of the contract as subsisting or any conduct inconsistent with an intention of

avoiding it, have the effect of an election to affirm.

Id. at 454 (emphasis added). Thus, the fact that the Calcotes continued to receive and accept the

amount due under the terms of the mineral deed, which they had contested, constituted a ratification

of the contract.

¶16. In Crabb v. Wilkinson, 202 Miss. 274, 32 So. 2d 356 (1947), this Court confronted a similar

circumstance where the appellees executed to the appellants two written instruments, one granting an

oil and gas lease on all the lands involved within the lease, and one granting a mineral deed which

conveyed to the appellants "an undivided one half interest in and to all the oil, gas, and other minerals

in and under" the lands involved in the lease. The appellees filed suit, alleging that the latter

document had been executed on the false "pretense that it was merely a copy of the oil and gas lease,

and that the copy was desired for appellants' files." Id. at 277. After the appellees inquired as to the

reason for their receiving only one-half of the rental due on their property, they were shown copies of

the agreements which explained that under the mineral deed they were entitled to one-half the annual

rent and the appellants were entitled to the other one-half of the annual rent.

¶17. The appellees were then given the choice of refusing the rent, denying the validity of the mineral

deed, or accepting the rent, which would have the effect of recognizing the right of the appellants to

receive one-half of the rent by virtue of the mineral deed. The appellees chose to accept one-half the

rent for the two years that the tender was made; nevertheless, this Court stated that "their action in

accepting the $16 on the first rental renewal was all that was necessary to be shown for the reason

that an election to affirm once made is there after irrevocable." The Court repeated the rule

announced in Koenig, and noted that "at the time of their conduct in affirmance, they [the appellees]

had before them in written form all facts material to that affirmance." Id.

¶18. In a more recent case, Turner v. Wakefield, 481 So. 2d 846 (Miss. 1985), this Court again

confronted the issue of ratification of contracts which are allegedly based on fraud. The appellee

alleged that it had been fraudulently induced into the execution of a promissory note to the appellant.
The appellee, however, continued to make payments on the note for eleven months after being

advised of its potential invalidity. This Court stated that "a contract obligation obtained by fraudulent

representation is not void, but voidable." Id. at 848-849. The Court held that "upon discovery thereof

[of fraud], the one defrauded must act promptly and finally to repudiate the agreement; however, a

continuance to ratify the contract terms constitutes a waiver." Id. at 849 (emphasis added). Thus, this

Court's holding was in accord with its previous holdings in Koenig and Crabb that acts recognizing a

contract as subsisting constitute acceptance of the terms of that contract. It is noteworthy that in

Turner, the appellee pleaded financial hardship and ignorance of the law as reasons for his failure to

terminate his payment under the note.

¶19. As was alleged in the previous cases, the Edwardses assert that Wurster Oil's actions constituted

fraud. The Chancellor, however, had substantial credible evidence to form the conclusion that the

plaintiffs demonstrated a "definite and unequivocal course of conduct" which would disclose that

they had acceded to the contract with Wurster Oil. The record reveals that upon realization that the

Edwardses were being required to pay fifty percent of the installation cost through the deduction of

fifty percent of their commission, Mrs. Edwards immediately informed Jim Thornton of her

disapproval of the arrangement in March of 1991. Furthermore, she requested a copy of the contract

they had signed, a copy of the cost of the installation of the equipment, and a calculation of the

deductions that were made from their checks, which were all received in the latter part of April of

1991.

¶20. After Mrs. Edwards voiced her dissatisfaction with the deductions from their commission, Jim

Thornton offered to allow the Edwardses to pay for the installation of the equipment themselves at a

price of $122,913.91, or they could find a company which would do so. The Edwardses assert that

they were not financially able to do this. As in Turner, however, financial hardship may not be relied

upon to explain the failure to cease compliance with a disputed contract. Thus, the Edwardses had to

resort to other methods of obtaining relief.

¶21. Although a section of the Gasoline Sales Agreement provides that "[a]ll gasoline and all sums

collected by Dealer [Jack Edwards and Dot Edwards] for gasoline sold hereunder shall be, become

and remain the sole and exclusive property of the Owner," the plaintiffs could reasonably have

retained portion of the gasoline receipts that they believed they deserved and awaited suit by Wurster

Oil. In the alternative, the plaintiffs could also have immediately sought legal representation and

asserted a claim against the defendants for their portion of the commission. Instead, they chose to

wait eight months before taking action, while continuing to remit the total gasoline receipts and

accepting one-half of their commission from Wurster Oil. We conclude that the Chancellor's holding

that, by continuing to remit the entire commission and accepting one-half of their commission from

Wurster Oil, the Edwardses' accepted and ratified their contract with Wurster Oil, is not manifestly

erroneous. As did the appellees in Crabb, the Edwardses had before them all facts material to

acceptance or ratification at the time of their acceptance or ratification of the contract. They are,

therefore, estopped from asserting their claim which arises from a provision within that contract.

¶22. AFFIRMED.

PRATHER AND SULLIVAN, P.JJ., ROBERTS AND SMITH, JJ., CONCUR. LEE, C.J.,

CONCURS IN RESULT ONLY. McRAE, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY PITTMAN AND MILLS, JJ.

McRAE, JUSTICE, DISSENTING:

¶23. I disagree with the majority's conclusion that the Edwards' acceptance of checks from Wurster

Oil for eight months after they first challenged the commission agreement, which had been modified

without their knowledge or assent, constitutes a ratification of the contract. When Wurster Oil filled

in blanks unbeknownst to Edwards, the company had an affirmative duty to tell the Edwards of the

changes. The majority penalizes the innocent party and not the wrongdoer. To do otherwise,

penalizes the Edwards for making the best of a bad situation while they discussed various remedies

with Wurster Oil's representative, Jim Thorton; made the decision to seek legal counsel; and

ultimately, while their attorney did the necessary investigation and research before filing suit.

Accordingly, I dissent.

¶24. The Edwards signed a contract which, they assert, was left partially blank. Wurster Oil added

language which the Edwards were not aware of until after they had received several commission

checks and noticed that they were for only half the amount the couple expected to receive. Thus,

there was no meeting of the minds on the counteroffer made by Wurster Oil.

¶25. The majority finds that the Edwards did not act quickly enough to protect their rights; that eight

months was too long to wait before filing suit. By not acting immediately, the majority says, they

ratified the agreement. To have repudiated Wurster Oil's counteroffer, the majority concludes that

"the plaintiffs could reasonably have retained the amount of the commission they wanted and awaited

suit by Wurster Oil" or "could also have immediately sought legal representation and filed suit against

the defendants for their portion of the commission." Slip op. at 9.

¶26. The case sub judice is distinguishable from Turner v. Wakefield, 481 So. 2d 846 (Miss. 1985),

where the appellee continued to meet his obligations under the terms of the contract after he was

advised of its potential invalidity. We do not know, however, at what point after trying to resolve

their differences with Wurster Oil, the Edwards contacted an attorney and were advised of the

contract's potential invalidity. Further, we should not fault the Edwards or their attorney for taking

the time to research and investigate their claim prior to bringing this suit. For them to have filed suit

immediately after they saw the contract in April, without first attempting to resolve the situation

without litigation or allowing their attorney time to properly investigate the claim would have

exposed the attorney to possible sanctions.

¶27. The Edwards' conduct is further distinguishable from those of the complainants in Koenig v.

Calcote, 199 Miss. 435, 25 So. 2d 763 (1946), where this Court found that the Calcotes had ratified

the terms of a mineral deed by accepting payments under its terms for ten years. Similarly, in Crabb

v. Wilkinson, 202 Miss. 274, 32 So. 2d 356 (1947), the acceptance of rent for two years under the

terms of a mineral deed alleged to be fraudulent was found to constitute ratification of the agreement.

As also distinguished from the case sub judice, the Court noted in Crabb that "at the time of their

conduct in affirmance, they [the appellees] had before them in written form all facts material to the
affirmance." Id. at 278. The Edwards, however, had received two or three checks before they

actually saw the modified contract.

¶28. Accordingly, because the Edwards' conduct does not amount to ratification of Wurster Oil's

insertion of different contract terms without the knowledge or consent of the Edwards, I dissent.

PITTMAN AND MILLS, JJ., JOIN THIS OPINION.