Before Prather, C.j., Roberts And Mills, JJ.
The opinion of the court was delivered by: McRAE, Justice, Dissenting:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 04/14/95
TRIAL JUDGE: HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED: SMITH COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - CONTRACT
MOTION FOR REHEARING FILED:
PRATHER, CHIEF JUSTICE, FOR THE COURT:
STATEMENT OF THE FACTS AND CASE
Tommy and Sue Walker discovered a valuable gravel deposit on their 72 acres of rural land near Mize, Mississippi. On August 26, 1993, they entered into a contract, labeled "Pit Agreement", ("Agreement") with Pitts Construction Company, Inc. ("Pitts") for the mining of the gravel deposits. Almost from the very beginning, disputes arose between the Walkers and Pitts regarding the mining of the gravel and the parties' respective obligations under the Agreement.
The Walkers were unable to provide Pitts with access to a highway through a neighbor's property as originally planned, and they were accordingly forced to buy 37 acres of property from another neighbor in order to provide the highway access. The parties thereafter executed Amendment 2 to the Agreement, pursuant to which Pitts was paid an additional $10,000.00 out of the gravel royalties in order to compensate it for the increased expenses in building a road to access the highway. Pitts alleges that the Walkers also violated the terms of the Agreement by failing to provide it with the use of a small building located near their property as required in the Agreement.
The Walkers note that Pitts violated the Agreement in a number of respects, including by failing to provide on-site scales for the weighing of the gravel that was mined from the property and by failing to pay all of the royalties required under the terms of the Agreement. As the Walkers became increasingly dissatisfied with Pitts' operation of the gravel pit, they arranged to set up their own equipment in the pit, including a power screen washer and a front end loader. Billy Dale Pitts testified that he originally agreed to the Walkers' installing their own equipment in the leased area but that he did so only under the understanding that a written agreement relating to this equipment would be worked out. Pitts testified that no such agreement was reached.
Within days of the beginning of the dual mining of the property, the Walkers filed suit against Pitts in Chancery Court of Smith County, seeking a cancellation of the Pit Agreement and damages from Pitts for unpaid royalties. Pitts counterclaimed, seeking alleged damages arising from the construction of the access road as well as damages for sand and gravel which, Pitts alleges, the Walkers took from the property in violation of the Agreement. The Chancellor found that both parties had breached the contract and he accordingly rescinded the Pit Agreement as requested by the Walkers. The Chancellor awarded the Walkers $3,425.72 in unpaid royalties, but ...