BEFORE ROY NOBLE LEE, SULLIVAN AND ANDERSON
SULLIVAN, JUSTICE, FOR THE COURT:
On January 6, 1984, the Chancery Court of Madison County, Mississippi, dismissed a claim for specific performance of a land option contract covering five acres in Ridgeland, Mississippi, under Mississippi Rules of Civil Procedure 12(b)(6) on the ground that the claim failed to state a cause of action upon which relief can be granted. On February 6, 1984, the chancellor dismissed appellant's motion under Mississippi Rules of Civil Procedure 59 and 60 for the chancellor to reconsider his opinion.
Appellant assigns as error:
1. Granting the motion to dismiss under Rule 12(b)(6).
2. Failing to recognize a valid contract between the parties.
3. Failing to grant specific performance.
On July 7, 1981, Griffin granted Busching an option for $500 to purchase five acres in Ridgeland, Mississippi, for $50,000. The expiration date of the original option was December 15, 1981, with a provision for extension. A proper legal description of the property was attached to the option.
Paragraph 4 of the option provides:
4. Purchase Price. The total purchase price for the property described shall be $50,000 to be paid by Busching if this option is exercised, the terms of such sale will be provided in an agreement to be exercised between Griffin and Busching. The sum paid for this option shall be credited on account of the cash payment to be made on the closing as will be provided in the agreement. Paragraph 6 of the option states:
6. Exercise of option. If this option is exercised as herein provided, Griffin and Busching will respectively, as Seller and Purchaser, perform the obligations in the form of agreement to be made between them.
The option was signed by Griffin and recorded by Busching in the Land Records of Madison County.
On January 26, 1982, Griffin granted an extension of the option for one year or until the Chancery Court of Madison County decrees title to her, whichever is longer. Busching paid Griffin $25 for the extension. This extension was also recorded.
On March 4, 1982, Busching paid $400 to Griffin for an extension of the option from the last extended date for one year to January 22, 1984. This option provided that the $400 would be deducted from the purchase price, when and if the option is exercised. This option was likewise recorded in the Madison County Land Records.
On July 8, 1983, Busching wrote Griffin through his attorneys notifying her that he understood that she had received clear title and he intended to exercise the option with closing requested to take place within
ten days. Busching wrote Griffin directly on August 10, 1983, notifying her that he intended to exercise the option to purchase the property and requested that the closing take place within ten days. Griffin refused to perform the contract and Busching filed a complaint for specific performance based upon the above facts.
ACTION OF THE TRIAL COURT
The trial court's opinion sustaining the motion to dismiss under MRCP 12(b)(6) notes that the option to purchase did not on its face provide for the type of deed the defendant was to convey nor does it recite the terms of payment. The court noted that paragraph 4 of the option stated that the terms of the sale would be provided in an agreement to be exercised [executedl between Griffin and Busching. Paragraph 6, the court noted, also contemplated that the parties would perform their obligations in the form of agreement to be made between them. To be enforceable, the court concluded that the contract to enter into a future contract must specify all the material and essential terms and leave none to be agreed upon as the result of future negotiations. Although the court noted that the law may imply the intention of the parties as to the time of payment, it may not imply what the parties would agree upon as to other essential terms of the contract. Therefore the court concluded that even though the price of the property was settled the option expressly contemplated a future agreement. The court was concerned that the seller may want the total purchase price in cash upon closing or may want to take a certain cash amount, subject to agreement to be made, and finance the balance over a period of time for whatever reason. The court's opinion concludes: "that the mentions of a subsequent agreement as to the purchase price are not definite and certain and leaves this to be agreed upon future negotiations."
In his motion under MRCP 59 and 50, Busching asks the court to recognize that Griffin failed to come into court with clean hands in that she refused to comply with the option agreement after the property was freed from litigation. His affidavit states that he would pay the $50,000 in a lump sum or subject to any terms within the bounds of the law specified by Griffin. At the hearing on the motion, Busching argued there were matters the court did not ...