BEFORE ROY NOBLE LEE, DAN LEE and PRATHER
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
Capital Associates, Inc. filed suit in the Circuit Court of Panola County against Briscoe's Foodland, Inc. for a total of sixteen thousand six hundred twenty-six dollars six cents ($16,625.06), which included an outstanding balance on a lease contract and attorney's fees. Briscoe's Foodland, Inc. filed a counterclaim against Capital Associates, Inc., alleging tortious conduct and breach of warranties, and sought one hundred fifty-five thousand dollars ($155,000) damages. The lower court, Honorable Andrew C. Baker, presiding, entered summary judgments in favor of Capital Associates, Inc. on the complaint and counterclaim, and Briscoe's Foodland, Inc. has appealed to this Court, assigning the following errors in the trial below:
(1) The trial court erred in granting summary judgment to Capital on Briscoe's counterclaim because: (a) there were genuine issues of material fact; (b) Capital's supporting affidavit was defective; and (c) Capital was not entitled to judgment as a matter of law.
(2) The trial court erred in granting summary judgment to Capital on its breach of contract claim for $16,626.06, because: (a) genuine issues of material fact existed; and (b) Capital was not entitled to judgment as a matter of law.
(3) The trial court erred in twice denying Briscoe's motion for leave to amend its answer.
Briscoe's and Capital entered into a lease agreement wherein Briscoe's leased video monitoring equipment from Capital to use in its grocery store. The agreement provided that Capital would purchase the equipment from Stanco Communications Products, Inc., and Stanco would arrange for delivery of the equipment to Briscoe's. The agreement further provided that the lessor, Capital, disclaimed all warranties of merchantability and fitness for a particular purpose, the disclaimer being in large boldface print; all warranties were disclaimed in large bold red type on the front page of the lease agreement, all other wording on the lease agreement was in regular black print; warranties on the equipment were
provided by the seller/vendor Stanco; Capital assigned unto Briscoe, solely for the purpose of making and prosecuting any claim, all rights it might have against Stanco for breach of warranty or representations respecting the equipment. The lease agreement also provided that Briscoe's would pay unto Capital the sum of two hundred ninety-nine dollars sixty-four cents ($299.64) per month for a period of sixty (60) months.
The complaint alleged that Briscoe's defaulted in the payments provided by the instrument and a true and correct copy of the lease agreement was attached to the complaint and made a part thereof. Briscoe's filed an answer and counterclaim and admitted that it did not make payments in accord with the terms of the contract for the reason that the equipment became inoperable and Briscoe's was unable to obtain the necessary repair and maintenance on the part of Capital. Briscoe's also filed a counterclaim along with its answer claiming tortious conduct on the part of Capital, that it conspired to avoid the availability to Briscoe's of access to the implied warranty provisions of Mississippi Code Annotated 75-2-314 and 75-2-315 (1972) and that the lease agreement deceived and defrauded Briscoe's. Capital denied the affirmative allegations of the answer and the allegations of the counterclaim.
Under Assignment of Error #1, appellant first contends that the lower court erred in granting summary judgment to appellee on the counterclaim *fn1 because (1) there were genuine issues of material fact and (2) that the instrument (agreement) sued upon is not really a lease agreement, but constitutes a buy and sell agreement, or a security agreement. Appellee contends that the instrument is a lease.
The instrument is entitled" Lease Agreement. "The parties are referred to as" lessor "and" lessee. "The lessor retained title to the equipment. The instrument contains a fixed lease term of sixty (60) months payable in installments of $299.64 each. Appellant Briscoe's, the lessee, certified that Capital, the lessor, had performed fully and satisfactorily" all covenants and conditions to be performed under the lease. "Appellant disclaimed all warranties in large capital letters in the delivery and acceptance receipt.
If a contract is ambiguous and its meaning is vague and not clear, questions of fact are presented which must be resolved by the trier of facts after a trial on the merits. However, where the contract is clear and unambiguous, its
meaning and effect are matters of law which may be determined by the court. The trial judge held that the agreement executed by the appellant and appellee was a lease, and that it was clear and unambiguous. We agree with the holding of the lower court and are of the opinion that it was not acting as a trier of fact, but was determining whether a genuine issue of material fact as to the nature of the agreement existed. Mississippi Code Annotated 75-2-106 (1972), as amended, provides the following:
(1) In this chapter unless the context otherwise requires" contract "and" agreement "are limited to those relating to the present or future sale of goods." Contract for sale "includes both a present sale of goods and a contract to sell goods at a future time. A" sale "consists in the passing of title from the seller to the buyer for a price (Section 2-401) ...