¶ 1. This case involves a contractual dispute over the sale of the "Heritage Building" in downtown Jackson, Mississippi. The sellers are The Heritage Building Property, LLC; Jenkins Heritage, LLC; and Elverton Investments, LLC (collectively, the "Sellers"). The buyers are Prime Income Asset Management, Inc. and TCI Heritage Building, Inc. (collectively, the "Buyers"). Following the failure to consummate the sale of the building, a dispute arose as to whether the Buyers were entitled to the return of a $100,000 deposit they had placed in escrow. The escrow agent, Chicago Title Insurance Company ("Chicago Title"), subsequently filed an interpleader action in the Chancery Court of Rankin County against the Buyers and the Sellers.
¶ 2. From this judgment, the Sellers now appeal. We find the chancery court erred in granting summary judgment in favor of the Buyers. We reverse and render judgment in favor of the Sellers, awarding them $95,267.50 as liquidated damages.
¶ 3. Counsel for Sellers and Buyers agreed to a "Stipulation of Undisputed Facts" in the chancery court, as follows:
¶ 4. A dispute then ensued between the parties over who was entitled to the $100,000 escrow deposit. The Sellers claimed they were entitled to it as liquidated damages under the Agreement. The Buyers stated it should be returned to them pursuant to their rights of termination found in the Agreement. Subsequently, Chicago Title filed an interpleader action against the Buyers and Sellers in the Chancery Court of Rankin County. Both the Sellers and the Buyers filed motions
¶ 5. Following a hearing on the motions for summary judgment, on July 25, 2008, the chancellor entered an order dismissing the Sellers' motion for summary judgment and granting the Buyers' cross-motion for summary judgment. The chancellor ordered return of the $100,000 escrow deposit to the Buyers, less Chicago Title's costs and attorneys' fees of $4,732.50. The Sellers timely appealed, raising two issues: whether the trial court erred in finding that: (1) the Second Amendment was not binding on the parties, and (2) the Buyers did not give "notice of intention to proceed" with the purchase of the Heritage Building under the original Agreement.
¶ 6. This Court reviews a trial court's grant of summary judgment de novo. Bullard v. Guardian Life Ins. Co. of Am., 941 So.2d 812, 814 (¶ 6) (Miss.2006) (citing Stephens v. Equitable Life Assurance Society, 850 So.2d 78, 82 (¶ 10) (Miss.2003)). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). Since the parties agree that the facts in this case are undisputed, the inquiry is solely a question of law.
¶ 7. The chancellor ruled that because not all of the Sellers had signed the Second Amendment to the Agreement, it was not binding on either the Sellers or the Buyers before the expiration of the Inspection Period. Further, as the Buyers did not provide written notice to proceed or cancel the contract prior to expiration of the Inspection Period, the chancellor determined that the Buyers timely cancelled the original Agreement.
¶ 8. The Sellers focus their argument on whether the Buyers could revoke their assent to the Second Amendment. The Sellers argue even if the Buyers could revoke their assent, and the Second Amendment was not effective, the original Agreement was still in effect because the Buyers gave notice to proceed before and after the Inspection Period. Accordingly, the Sellers claim they are entitled to the escrow deposit as liquidated damages because the Buyers breached the Agreement by not going forward with the purchase of the property. Finding the first issue dispositive, we decline to address the second.
¶ 9. It is undisputed that the original Agreement became a contract between the Buyers and the Sellers on September 12, 2007. On October 10, 2007, at the Buyers' request, the Sellers' counsel drafted a proposed Second Amendment, which clearly stated that upon execution of amendment, the Buyers acknowledged that the Inspection Period had expired and that they had no further right to terminate the Agreement. Shelley first signed the Second Amendment as a representative for the Buyers and returned it to the Sellers via email at 4:25 p.m. Only one of the three Sellers, Duckworth, was able to print out and sign the Second Amendment prior to 5:00 p.m., as the other Sellers were out of state. However, Hines, as agent for the Sellers, communicated to the Buyers, by email, that the other two Sellers had verbally agreed to the Second Amendment,
¶ 10. It is well established that contracts may be modified by a subsequent agreement between the parties. Kelso v. McGowan, 604 So.2d 726, 731 (Miss.1992) (citing 3 A. Corbin, Contracts § 574 at 373-75 (1960)). However, "[f]or a subsequent agreement to modify the original contract, the subsequent agreement itself must meet the requirements for a valid contract." Singing River Mall Co. v. Mark Fields, Inc., 599 So.2d 938, 947 (Miss.1992). A valid, enforceable contract requires an offer, acceptance of the offer, and consideration. Serv. Elec. Supply Co., Inc. v. Hazlehurst Lumber Co., 932 So.2d 863, 869 (¶ 17) (Miss.Ct.App.2006) (citing Krebs v. Strange, 419 So.2d 178, 181 (Miss. 1982)). It is elemental that "a contract is not formed until the offeree accepts the terms stated by the offeror." Vice v. Hinton, 811 So.2d 335, 338 (¶ 12) (Miss.Ct.App. 2001) (citing Edwards v. Wurster Oil Co., 688 So.2d 772, 775 (Miss.1997)). Under Mississippi law, when a person creates a power of acceptance in another party by signing a contract, that person retains the power to revoke simply by giving notice to the other party. Id. at (¶ 14). The revocation must, however, "be communicated to the offeree before he or she has accepted. If the offer is accepted before withdrawal, it becomes a binding contract and cannot be withdrawn." 17A Am.Jur.2d Contracts § 60 (2004).
¶ 11. In the instant case, both parties agree that the Buyers' tender of the signed Second Amendment constituted an offer to the Sellers. The "$100,000 question" is whether that offer was revoked prior to acceptance by the Sellers. We think not. "Unless otherwise indicated by the language or the circumstances, an offer invites acceptance in any manner and by any medium reasonable in the circumstances." Restatement (Second) of Contracts § 30(2) (1981). In this case, one Seller, Duckworth, manifested assent the afternoon of October 10, when he signed and returned the document to Hines. The other two Sellers verbally assented, and an email to that effect was sent by the Sellers' agent, Hines, with a copy of the Second Amendment signed by Duckworth, to the Buyers at 4:41 p.m. It was only after that assent had been communicated to the Buyers that the Buyers attempted to revoke their offer. By that time, we find it was too late.
¶ 12. The Buyers contend that all of the Sellers had to sign the Second Amendment in order to bind the Buyers. The Sellers argue that the Buyers' right to revoke the offer ended once the first Seller signed the Second Amendment even without acceptance by the other two Sellers, but the document "became effective" upon the signing by the remaining Sellers. We cannot agree with either of these propositions as stated.
¶ 13. In Turney v. Marion County Board of Education, 481 So.2d 770, 774 (Miss.1985), the Mississippi Supreme Court discussed 17 C.J.S. Contracts § 62 (1963) as providing a "comprehensive discussion of the law on signature requirement":
(Emphasis added). The court found the "common thread" running though these passages to be "the intent of the parties. Whether an unsigned writing constitutes a binding contract depends upon the intention of the parties." Id. (finding lessee who declined to execute lease lacked intent to be bound to the terms of lease he later claimed to be valid).
¶ 14. In Skinner v. Haugseth, 426 So.2d 1127, 1130 (Fla.Dist.Ct.App.1983), the Florida Second District Court of Appeal continued quoting from the C.J.S. where the Mississippi Supreme Court left off:
(Quoting 17 C.J.S. Contracts § 62 (1963)) (emphasis added). The Florida court found the "common thread of reasoning" in the cases cited as authority for this later passage to be "whether the signing party manifested the intent not to be bound by the contract unless all of the other parties joined in its execution." Id. at 1130. The Florida court examined, for example, Palman v. Reynolds, 310 Mich. 35, 16 N.W.2d 657, 659 (1944), wherein the Michigan Supreme Court noted that a signing party "has the burden of showing that he did not intend to be bound unless the contract was fully executed by all of the other parties" and "quoted with approval" an earlier case which held that if the signing party "does not intend to be bound he has to declare his intentions at that time rather than simply testifying to this effect at a later date." Skinner, 426 So.2d at 1131. The Skinner court thus held that:
Id.
¶ 15. To similar effect is International Creative Management, Inc. v. D & R Entertainment Co., 670 N.E.2d 1305, 1310-11 (Ind.Ct.App.1996), cited by the Sellers:
¶ 16. The Buyers do not dispute this authority but claim that the Second Amendment itself evidences that the signatures of all Sellers were necessary in order to bind the Buyers since signature lines were provided for each of the Sellers and since paragraph 8 of the Second Amendment provided for telecopied or PDF signatures to be used in the place of original signatures in order to expedite execution of the document. We cannot interpret these provisions as "expressly provid[ing]... or manifest[ing] intent" that the Buyers would not be bound unless and until all of the Sellers had signed the Second Amendment. Further, the modification and waiver provisions of the original Agreement state that no modification shall be valid unless it is "in writing and signed by the party against whom the enforcement... is sought." This provision clearly anticipates that a modification which is executed by fewer than all of the parties will be valid so long as it is signed by the party to be charged.
¶ 17. In this case, one Seller manifested assent to the Second Amendment on the afternoon of October 10, when he signed and returned the document to Hines. The two Sellers who did not sign the Second Amendment gave their verbal assent to Hines, who communicated that assent to the Buyers via email. This written acknowledgment of assent by Hines, as agent for the Sellers, is sufficient to show the Sellers' assent to the Second Amendment and to prevent subsequent revocation of the offer by the Buyers.
¶ 18. We acknowledge that the Second Amendment may not have been enforceable against the two non-signing Sellers at that point. The Mississippi Statute of Frauds, section 15-3-1(c) of the Mississippi Code Annotated (Rev.2003), states that "[a]n action shall not be brought whereby to charge a defendant or other party ... upon any contract for the sale of lands ... unless ... the promise or agreement upon which such action may be brought ... shall be in writing, and signed by the party to be charged therewith or signed by some person by him or her thereunto lawfully authorized in writing." (Emphasis added.) While the parties stipulated that Hines was "agent" for the Sellers, and this is, we find, sufficient for him to communicate the Seller's acceptance, the record is silent as to whether he had written authority to bind the Sellers under the statute of frauds. Therefore, if enforceability of the contract against the Sellers, rather than manifestation of their assent, were the issue before us, we would remand the case for fact finding as to whether Hines had written authority to bind the Sellers. See Affiliated Invs., Inc. v. Turner, 337 So.2d 1263 (Miss.1976) (it was a jury question whether corporation's vice president had authority to bind corporation and satisfy statute of frauds when he, and not the president, initialed the contract).
¶ 19. However, the statute of frauds "does not make a contract void" or prevent the contract from being formed. Rather, the statute "only allows the defense to its enforcement which defense is personal to the defendant." Davis v. Stegall, 246 Miss. 593, 598, 151 So.2d 813, 815 (1963). Further, it is long established that compliance with the statute is sufficient if only "the party charged" shall have signed the agreement, whether the other party signed it or not. Marqueze v. Caldwell, 48 Miss. 23, 31 (1873) (tracking interpretation of the statute of frauds from English common law to conclude that trustee who held land in trust could compel specific performance
¶ 20. The Buyers' written offer to enter into the Second Amendment was accepted by each of the Sellers prior to the Buyers' attempt to revoke their offer; thus, the Second Amendment became enforceable against the Buyers who breached the Agreement by refusing to purchase the Heritage Building. The remedy for this breach is payment of escrow deposit as liquidated damages to the Sellers. Accordingly, we reverse the judgment of the chancery court and render judgment in favor of the Sellers, awarding the Sellers the remaining escrow deposit of $95,267.50 in liquidated damages for breach of contract pursuant to the Agreement.
¶ 21.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS, AND MAXWELL, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
