                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                                No. 92-7345


                             OUIDA MASSENGILL,

                                                   Plaintiff-Counter
                                                   Defendant-Appellant,


                                  versus


              GUARDIAN MANAGEMENT COMPANY, ET AL.,

                                                   Defendants-Counter
                                                   Plaintiffs-Appellees.




          Appeal from the United States District Court
            For the Northern District of Mississippi
                         (     April 8, 1994   )


Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     This appeal concerns an agreement for the sale of general

partnership interests, with each side accusing the other of breach.

Both parties were in the business of developing, managing and

investing in federally funded low-income apartment complexes, and

their attempted transaction was a sale of general partnership

interests in a number of such properties.          Plaintiff-appellant

Ouida Massengill is appealing the magistrate judge's decision to

grant damages and specific performance to the defendant-appellee

Guardian Management Company ("Guardian") on its counterclaim and to
award Massengill nothing on her suit.                         We REVERSE and RENDER

because we hold that the agreement between Guardian and Massengill

is so vague and ambiguous as to be legally unenforceable under

Mississippi law.

                            PROCEDURAL BACKGROUND

      Guardian, an Alabama general partnership, filed a complaint in

federal court in Alabama on January 19, 1989, seeking a declaration

of the rights and obligations of the parties under three documents

executed by Guardian and Massengill: (1) the Sales of Interest

Agreement; (2) the Amendment; and (3) the Addendum. Massengill, a

Mississippi     resident,     filed    a   motion        to    dismiss    for    lack    of

personal jurisdiction, which was granted. Several days later, she

filed suit against Guardian in federal court in Mississippi,

seeking     a   declaration    of     rights       and      obligations       under     the

instruments in question as well as damages for breach of contract.

Guardian    answered   and    asserted         a   counterclaim,         claiming     that

Massengill had breached the contract, asking for damages, and

asking the court to require Massengill to sell to Guardian her

general partnership interests that were the subject of the Sales of

Interest Agreement.

      The   parties    consented      to       have   the      case   tried     before   a

magistrate judge. See Fed. R. Civ. P. 73. The bench trial was held

on March 24 and 25, 1992. At the end of the trial, the magistrate

judge dictated an oral bench opinion, ruling in favor of Guardian

and   ordering    Massengill     to    transfer          her    general    partnership

interests in the properties upon Guardian's tender of the agreed


                                           2
per-unit price.1          The   magistrate    judge    also   awarded      Guardian

damages of $97,780.80 plus interest for the loss of revenue on

management fees as a result of Massengill's refusal to transfer the

general partnership interests to Guardian by a particular date for

each property as provided in the Sales of Interest Agreement.

Massengill appeals from the decision of the magistrate judge. See

Fed. R. Civ. P. 73(c).

                                FACTUAL BACKGROUND

     In 1984 or 1985 the defendant-appellee, Guardian, wanted to

expand the number of low income housing projects it managed.

Guardian was interested in projects financed by the federal Farmers

Home Administration ("FmHA").            Guardian solicited FmHA project

owners in Alabama and Mississippi, offering to purchase the general

partnership interests in the projects in order to gain management

control. Obtaining management control was important because such

control carried with it the right to receive federally approved

management       fees.   Massengill,    who   had     developed,     managed   and

invested in FmHA projects for more than a decade, responded to a

solicitation letter from Guardian.               At that time, Massengill

testified, she wanted to get away from the FmHA business and its

numerous       federal   regulations   and    concentrate     more    on   regular

           1
         According to the transcript of the proceedings, the
magistrate judge stated: "The court declares that, pursuant to the
Sales of Interest Agreement, the plaintiff [Massengill] should
transfer her general partnership interest..." (emphasis added).
     The written judgment issued on March 26, 1992 provided that
"the court declares that plaintiff shall transfer her general
partnership interest..." (emphasis added).
     The magistrate judge's choice of words is unusual, but we will
review this language as a grant of specific performance.

                                        3
commercial real estate. She thus wanted to sell her interests in

more than 20 FmHA projects, which she owned through separate

Mississippi      limited   partnerships    with   herself   as   the   general

partner for each project. (Massengill also owned the majority of

the limited partnership interests in each project, but there were

other limited partners in many of the projects.)

      Massengill negotiated with representatives from Guardian for

the sale of her general partnership interests. She argues that her

intent was to sell each project only as a complete transaction; she

would sell her general partnership interest in a particular project

only after, or at the same time as, the limited partnership

interests in the same project were also purchased, either by

Guardian or by a syndicator.2 Massengill testified at trial that

she   felt   a   responsibility   to   her   limited   partner    investors;

therefore she wanted to syndicate the limited partnership interests

first, so her investors could get a good price for their interests.

That way, her investors could get out of the project before

Massengill was required to transfer her managing interest to a new

general partner, who could potentially hurt the investments of the

limited partners who had trusted her.

      Charles Martin, a partner in Guardian Management, testified at

trial that Guardian's objective in the negotiations was to acquire

the general partnership interests in all of Massengill's projects;

       2
       "Syndication," as defined by Guardian in its brief, means
that a newly created entity would purchase the limited partnership
interests in a group of existing partnerships, with the idea that
this newly created entity, the "syndication vehicle," would pay for
the purchase by selling interests in itself to investors.

                                       4
Guardian was not interested in syndicating the limited partnership

interests.      Martin    testified      that    Guardian    would   introduce

Massengill to a syndicator and assist her in the syndication.

Martin said his impression at the beginning was that Massengill

wanted to syndicate all of her projects, but his understanding

later was that she did not want to syndicate all of the projects

"because of tax considerations."

                         Sales of Interest Agreement

     The negotiations between Guardian and Massengill resulted in

the execution by both parties of the November 7, 1985 Sales of

Interest   Agreement.          The   Agreement    provided    generally    that

Massengill would transfer her general partnership interests in the

designated projects to Guardian, for an agreed-upon per-unit price,

upon the completion of certain conditions listed in the Agreement.

One of the conditions that had to occur before Massengill was

required   to    sell    her   general   partnership    interests    was   that

Massengill had to enter into a contract with a syndicator "binding

the syndicator to syndicate the projects." There was some ambiguity

about whether Guardian was obligated to locate the syndicator. The

sale of the general partnership interests was also expressly made

contingent upon approval of the transaction by the FmHA and by

Massengill's limited partners. These approvals were also required

by federal law and Mississippi law.

     The Sales of Interest Agreement also provided that Guardian

would purchase the limited partnership interest in one project,

Oakview Apartments, Ltd., for $130,000 in cash. (Massengill owned


                                         5
100 percent of both the general and limited partnership interests

in the Oakview project.)

                 Amendment To Sales of Interest Agreement

     The   second       document    executed     by   the    parties    was    titled

"Amendment to Sales of Interest Agreement." The three-page document

states    that    Massengill       and   Guardian      desire   to     amend    their

agreement, and it goes on to state which numbered paragraphs of the

Sales of Interest Agreement shall be deleted and replaced by new

paragraphs set out in the Amendment. The Amendment was signed by

Massengill on November 25, 1985 and by Charles Martin of Guardian

on December 7, 1985. The Amendment deletes Paragraph 1.2 in the

Sales of Interest Agreement, which provided that Guardian would

purchase the limited partnership interest in Oakview Apartments,

Ltd. for $130,000 in cash. The replacement Paragraph 1.2 states

that instead, Madison Investment Company would purchase the limited

partnership interest in Oakview for a $130,000 secured promissory

note,    and   that     Guardian    would     purchase      Madison's    note    from

Massengill       for    $130,000    in   cash,    "conditional         upon    Seller

[Massengill]      and    Madison     Investment       Company   consummating       an

agreement between Seller and Madison Investment Company on or

before December 10, 1985."

The Amendment then concludes: "Except as amended, the original

terms of the original Sales of Interest Agreement shall remain in

full force and effect."




                                          6
                Addendum to Sales of Interest Agreement

     The third document executed by Guardian and Massengill was

titled "Addendum to Sales of Interest Agreement." The Addendum

consists of one paragraph, which states in full:

     "The undersigned hereby state, agree and understand that
     all conditions of the above referenced contract have been
     complied with and no conditions are outstanding thereon;
     the contract is now binding without further conditions to
     be met."

Massengill testified that she signed the Addendum on December 7,

1985. Martin of Guardian also testified that he signed the Addendum

on December 7, 1985. However the Addendum document has three

different dates on its face. Immediately under the title, "Addendum

to Sales of Interest Agreement," the typed date originally read,

"Dated: November 7th, 1985." Thereafter, "7th" was crossed out, and

"25th" was hand-written above it. (causing the document's date to

be November 25, 1985). But the "25th" is also crossed out, and

"7th" is hand-written below the line, followed by the initials

"C.A.M." and "O.M." (causing the document's date to be November 7,

1985). Then, down at the bottom of the page near the signature

lines, the date "12/7/85" is hand-written (causing the document's

date to be December 7, 1985).

     Guardian      points     to   these   changes      to   attack     Massengill's

contention that the Addendum was a totally separate transaction

from the     Sales    of   Interest    Agreement       and     the    Amendment.    The

crossouts    and     interlineations       suggest     that     the    parties     were

attempting to date the Addendum back to the time of the earlier

documents.    But     their    attempts        did   nothing    to    clarify    their


                                           7
intentions; the Addendum was left ambiguously with two dates that

were not crossed out: November 7, 1985, and December 7, 1985.

              Circumstances Surrounding Execution of

                  the Amendment and the Addendum

     Guardian introduced Massengill to Thomas S. Ford of Madison

Investment Company. ("Madison"). Ford and Madison were to arrange

for the syndication of the limited partnership interests. The

parties dispute whether Madison was ready and willing to syndicate

all of Massengill's projects in December 1985. Guardian claims that

Madison was ready to syndicate all of the projects, but that

Massengill chose to syndicate only four projects at first, "for tax

reasons." Massengill claims that Madison agreed to purchase the

limited partnership interests in four of the projects, but she says

"Madison had not agreed and never did agree to purchase any of the

other projects." At any rate, Massengill, Ford of Madison, and

Martin of Guardian met on December 6 and 7, 1985 to review

documents and "close" the transaction in which Madison was to

purchase   Massengill's   limited       partnership   interests   in   four

projects. On December 7, 1985, Martin of Guardian signed the

Amendment to Sales of Interest Agreement, which provided that

Madison, instead of Guardian, would purchase the Oakview project

limited partnership interest by giving Massengill promissory notes,

and that Guardian would purchase Madison's notes from Massengill

for $130,000 in cash. The reason for these changes in the deal, and




                                    8
who benefited from the changes, was disputed by the parties.

Massengill had already signed the Amendment on November 25, 1985.

     Also on December 7, 1985, both Massengill and Martin of

Guardian signed the Addendum. Massengill claims that she signed the

document "with the understanding and assurance from Guardian that

the Addendum only applied to the four projects syndicated on

December    7,    [1985]."   Massengill's        position,         as    stated   in   an

interrogatory      answer,       was    that    the    Addendum         was   meant    to

acknowledge that, as to the four projects, all conditions called

for in the Sales of Interest Agreement had been met.3 Guardian has

advanced two somewhat inconsistent explanations of the Addendum's

purpose, claiming both that (1) the Addendum acknowledged that all

conditions precedent had in fact been met for the transfer of

Massengill's       general       partnership       interests,           and   that     (2)

Massengill, by signing the Addendum, waived any conditions to be

performed by Guardian and thus obligated herself to sell all of her

general    partnership     interests.         Guardian      also   argues     that     the

consideration for the Addendum was the "changes in the deal"

addressed in the Amendment. Massengill claims that the four-project

deal was       concluded   and    she    already      had   Guardian's        check    for

$130,000 in her hand before she ever saw the Addendum. She claims

that an attorney for Guardian brought the Addendum to her at the

last minute when everyone was preparing to go home, and explained

           3
          This argument is confusing in that one condition,
syndication, had been met as to the four projects, but another
condition, FmHA approval, had not been obtained, and the record
does not show whether Massengill's limited partners approved of the
transaction.

                                          9
to her that the document was just "something to have on file" until

the instruments on the four-project deal were recorded.

     Madison   later   rescinded    its   purchase   of   the   limited

partnership interests in the four projects and defaulted on its

promissory notes. Litigation between Madison and Guardian, and

Madison and Massengill, ended in settlement. Guardian did not

locate a syndicator for any of Massengill's other projects, and all

of them are still owned by Massengill and the other limited

partners.

                  The Magistrate Judge's Opinion

     The magistrate judge dictated a bench opinion into the record

on March 25, 1992. After noting the awkwardness a court faces in

trying to interpret and enforce complex business contracts, the

magistrate judge described the general written provisions of the

Agreement, Amendment and Addendum. The magistrate judge then noted

that neither Massengill nor Martin is a novice or inexperienced in

business contracts, and that Mississippi law forbids a court from

writing additional provisions into a contract. The magistrate judge

then stated:

   "Absent a mutual mistake, fraud or other illegality, courts
   do not have the authority to modify, add to or subtract from
   the terms of a contract validly executed between parties.
   Moreover, a written instrument must be considered as a whole
   and all parts construed together. It is also a statement of
   Mississippi law that contracts are not rendered ambiguous by
   the mere fact that the parties do not agree upon their proper
   construction. Finally, as a statement of the applicable law
   in this case, where contractual language is unambiguous, the
   contract must be enforced literally." (citations omitted).

   The magistrate judge continued:



                                   10
        "Looking at the facts as previously found by the court
   and applying the law of the state of Mississippi, the court
   finds that while certain parts of the contract may have been
   subject to interpretation on what the obligations of Guardian
   Management Company [were] concerning the obtaining of a
   syndicator, any ambiguity in that regard was cleared up by
   the Addendum. The Addendum is clear and unambiguous that all
   the conditions have been met. That is, an agreement, an
   addendum to the contract signed by two parties who are
   familiar with these types of transactions, the court could
   find no fraud or illegality or mistake of fact, therefore
   interpreting the document as a whole with the Addendum in
   place. The court finds that as of the date of the Addendum,
   December 7, 1985, all conditions of the contract required by
   Guardian Management Company had been met.

        "Accordingly, with that finding, the court declares that
   pursuant to the Sales of Interest Agreement, the plaintiff
   should transfer her general partnership interest in the
   scheduled properties attached to the Agreement upon the
   tendering by the defendant of the agreed-to price of $281.70
   per apartment unit. The other conditions of the contract upon
   the tender to that still remain in place as far as the
   approval required and that's left for another day but the
   interest as it stands now shall be transferred upon the
   tender of the monies as agreed to."

     The magistrate judge then went on to award Guardian damages on

the basis that "by not passing the general partnership agreement

interest to the defendant there has been a loss of revenue on

management fees as clear from the testimony." The magistrate judge

ultimately awarded Guardian $73,516.80 for lost management fees

resulting   from   Massengill's   refusal   to   transfer   the   general

partnership interests by a particular date for each property as

provided in the Sales of Interest Agreement.

                             DISCUSSION

     Full appellate review is appropriate in this case, because

contract interpretation is a question of law committed to the court

rather than a question of fact committed to the fact-finder.

Highway Comm'n v. Patterson Enters., 627 So.2d 261, 263 (Miss.

                                  11
1993); Leach v. Tingle, 586 So.2d 799, 801 (Miss. 1991). Therefore,

we   apply     de     novo     review,       which   is    appropriate         to   make    a

"determination as to a contract's facial ambiguity." Reid v. State

Farm    Mut.    Auto.        Ins.     Co.,     784   F.2d      577,      578   (5th       Cir.

1986)(applying Mississippi law). To the extent that the magistrate

judge made a finding of fact that all conditions had been met as of

December 7, 1985, we hold that such finding is clearly erroneous.

       We will not disturb the magistrate judge's decision to apply

Mississippi         law   on    general       choice-of-law         principles      and    in

accordance with the parties' agreement.

       Mississippi law favors a determination that the terms of a

contract     are     sufficiently        definite,        so   as   to   carry      out   the

reasonable intention of the parties. Patterson Enters., 627 So.2d

at 263; Hicks v. Bridges, 580 So.2d 743, 746 (Miss. 1991); Busching

v. Griffin, 542 So.2d 860, 863 (Miss. 1989). However, Mississippi

courts will refuse to enforce a contract that is "vague, indefinite

and ambiguous." Sta-Home Health Agency, Inc. v. Umphers, 562 So.2d

1258, 1260-61 (Miss. 1990)(written non-competition agreement was

found to be confusing and "nonsensical" and thus too ambiguous to

be enforced); Beck v. Goodwin, 456 So.2d 758, 761 (Miss. 1984);

Izard v. Jackson Prod. Credit Corp., 195 So. 331, 333 (Miss. 1940).

Under    Mississippi           law,    "vague,       indefinite          and    uncertain"

agreements, in which the promises and performances to be rendered

by each party are not reasonably certain, are not enforceable as

contracts. First Money, Inc. v. Frisby, 369 So.2d 746, 751 (Miss.

1979); See also Bank of Shaw v. Posey, 573 So.2d 1355, 1358 (Miss.


                                              12
1990)(summary judgment awarded on breach of contract claim because

terms "were so vague and uncertain as to be unenforceable").

       When a writing does not show the parties' agreement on a minor

contract    term,     the    reviewing       court     may   supply     a   reasonable

interpretation. For example, the Mississippi Supreme Court upheld

an option contract in Busching, 542 So.2d at 864, because even

though the contract failed to specifically fix a time for payment,

it did state a purchase price. But essential contract terms may not

be supplied by a court. "If any essential term is left unresolved,

there is simply no contract and no obligation on the parties." Duke

v.   Whatley,   580    So.2d       1267,   1274    (Miss.      1991).   Guardian      and

Massengill's     attempted         agreement      is   distinguishable        from    the

contract in the Busching case in that the Agreement, the Amendment

and the Addendum contain substantial ambiguities on vital contract

provisions,     rather      than    merely      failing   to    state   the    time    of

performance. The Duke opinion stated:

       "[W]ithout knowledge of the parties' intent of an
       essential term, this Court, and any court, is unable to
       determine what performance should be required. The
       agreement must be definite and certain in order to be
       enforceable."

Duke, 580 So.2d at 1274 (citing 17 AM. JUR. 2D CONTRACTS § 75 (1964).

This    Circuit,    applying        Mississippi        contract     law,      has    also

recognized that a writing does not constitute an enforceable

contract unless "the terms are sufficiently definite to be legally

enforced." Knight v. Sharif, 875 F.2d 516, 523 (5th Cir. 1989)




                                           13
(citing Etheridge     v.   Ramzy,   276   So.2d    451,    454   (Miss.    1973)

(writing dealing with the purchase and sale of corporate stock was

"too indefinite and uncertain" to be enforceable) ).

     Even   though   Mississippi    courts   strive       to   find   contracts

enforceable, an enforceable contract must contain matter which will

enable the court to construe its terms. Mid-Continent Tel. Corp. v.

Home Tel. Co., 319 F. Supp. 1176, 1192 (N.D. Miss. 1970). An

agreement is sufficiently definite and specific to be enforceable

under Mississippi law if:

     "it contains matter which will enable the court under
     proper rules of construction to ascertain its terms,
     including consideration of the general circumstances of
     the parties and if necessary relevant extrinsic
     evidence."

E.g., Leach v. Tingle, 586 So.2d 799, 801 (Miss. 1991).                   If the

agreement is not specific enough for the court to ascertain its

terms, then the contract is not enforceable. In Beck v. Goodwin,

456 So.2d 758, 760 (Miss. 1984), the court found that the agreement

in that case, which purported to assure the continuing availability

of automobile financing arrangements, was too vague and indefinite

to be enforced.      Beck, 456 So.2d at 761.          The court noted the

uncertainties inherent in the contract, including, among other

details, how much money was to be advanced, when the money was to

be advanced, and when the advances would be repaid. Id. Because of

these   uncertainties,     the   agreement   was   not    enforceable      as   a

contract.

     In the case of the Massengill-Guardian agreement, the promises

and performances to be rendered by each party are likewise not


                                     14
reasonably certain, and the three executed documents are too

contradictory, confusing and vague to constitute an enforceable

contract.    Even     considering        testimony     on     the   circumstances

surrounding the execution of the three documents, (as well as the

magistrate    judge's    sparse    findings       of   fact    on   the   parties'

intentions), we cannot determine the meaning of vital provisions in

the parties' attempted agreement. The documents contradict one

another on important issues such as Farmer's Home Administration

("FmHA")    approval,    limited    partners'      approval     and   the   proper

interpretation of the syndication condition. The magistrate judge

recognized    these     deficiencies       in   the    agreement,     but    stated

unhelpfully that the other approvals are to be "left for another

day."

     The following is a list of reasons why the attempted contract

between Guardian and Massengill -- as evidenced in the three

documents they executed -- is too confusing, "nonsensical," vague

and ambiguous to be legally enforceable:

     (1)    First, it remains uncertain whether the parties intended

to enforce the 1.3 "Conditions" clause in the Sales of Interest

Agreement. The Addendum is so vague that it cannot be determined

whether the language -- "all conditions of the above referenced

contract have been complied with" -- extinguishes the original

conditions    precedent     to     the     sale   of    Massengill's        general

partnership interests. The Sales of Interest Agreement and the

Addendum are internally inconsistent with regard to conditions.

The Sales of Interest Agreement requires three conditions that had


                                         15
to    occur   prior    to   the   sale   of   any   of   Massengill's   general

partnership interests: (1) a "binding" agreement with a syndicator

to syndicate all the properties; (2) the approval of Massengill's

limited partners; and (3) FmHA approval of the transfer. Meanwhile,

the Addendum provides that all conditions have already been met.

Yet, both sides agree, and the evidence shows, that the requisite

approvals, both of which are required by law regardless of the

agreement, were never obtained. The pretrial order lists as one of

the contested issues "whether approval of FmHA and the limited

partners is required before any general partnership interests can

be transferred to [Guardian]." In addition, Massengill entered into

a binding syndication contract for only four of the projects, not

for all of them. The Addendum, however, makes no reference to a

waiver of those pre-conditions. At trial, counsel for Massengill

tried to determine on cross-examination of Guardian's attorney,

Gary Olshan, whether Guardian was claiming that (1) the Addendum

was a waiver of the syndication condition; or that (2) the Addendum

was merely to document that the syndication condition had been

satisfied when Guardian introduced Massengill to Ford. Olshan never

settled on either theory; his testimony gave both theories at

different times. In addition, the other two conditions, FmHA

approval and limited partner approval, were glossed over at trial

and    in     the     magistrate    judge's     opinion.      The   unresolved

contradictions and inconsistencies in the documents with regard to

these two required approvals render it impossible for any court to

determine the existing terms of the contract, namely, whether the


                                         16
approval conditions were waived, or if they are still in effect.

      The language in the Addendum is too broad to be given the

meaning that the magistrate judge assigned to it. The Addendum

stated that all conditions had been met, while the evidence showed

that "all conditions," had in fact not been met. The magistrate

judge stated       that    the   Addendum     was    unambiguous        and    would   be

enforced literally, but then found that one condition, syndication,

had been complied with, while two other conditions, FmHA approval

and limited partner approval, had not been met, and would be "left

for   another      day."    This    is   an     inconsistent         and       illogical

interpretation.

      (2)   Also inconsistent is the method in which the instruments

were created.        The parties submitted drafts of the Sales of

Interest Agreement back and forth before a final agreement was

executed    months    later.       Likewise,        the    parties      took    time   to

negotiate    and    draft    the   Amendment        to    the   Sales    of     Interest

Agreement.    Massengill signed the Amendment first and Guardian's

representative waited to sign it after having looked it over for a

few weeks.    The Amendment was detailed and specific. It specified

which exact numbered clause of the Agreement was being amended and

it detailed the formula by which Massengill was to sell her

interests.

      The execution of the Addendum was completely different from

the method in which the parties had previously executed agreements.

According to the testimony of Massengill and her witness, the

Addendum was never presented to her for review until the last day


                                         17
of the closing on the four-project deal. The parties disagree on

what was said about the Addendum. Guardian contends that the

Addendum was part of the same transaction as the Amendment, but if

this is true, why didn't the parties include all the terms of the

transaction in one document? As discussed above, the Addendum

itself   is     sketchy   as    to    its   terms   and   what   it   purports   to

accomplish. It provides that all conditions have been complied

with,    when    in   fact     they   had    not.   Guardian     alleged   in    its

counterclaim that on the day she signed the Addendum, "Massengill

waived the occurrence of any further conditions to the Agreement."

But as we have stated, the Addendum does not contain waiver

language indicating the parties' awareness that the conditions had

not been met, but that Massengill intended to waive the conditions

and to consider performance under the Sales of Interest Agreement

final on Guardian's part. Instead, the Addendum's language speaks

in terms of conditions already having been met. Because of these

ambiguities and contradictions, we hold that the parties failed to

sufficiently evidence what they intended in their execution of the

Addendum in relation to the two other instruments.

     (3)      In addition, the extrinsic evidence considered by the

magistrate court indicates that the parties themselves were not

certain what obligations were meant to be imposed on each party.

A former draft of the Sales of Interest Agreement conditions the

sale of the general partnership on Guardian's contracting with a

syndicator to syndicate the properties listed on Exhibit A attached

to the draft agreement.          The Agreement was later changed to make


                                            18
the sale contingent on Massengill contracting with a syndicator to

syndicate the properties. In spite of the change in the agreement,

both parties appeared to have operated under the assumption that it

was Guardian's obligation to find a syndicator, and Guardian

continued to search for a syndicator for Massengill both before the

four   properties        were       syndicated     and      after    the       deal    for   the

syndication for the four properties fell through.                                 Thus, the

parties'     course          of    conduct    indicates       confusion          as    to    the

responsibilities             of   the    parties   under      the    agreement.          Martin

testified that Guardian had a duty to find a syndicator and assist

Massengill       with        the    syndicator        for     the        four    properties.

Thereafter, though, Martin claimed that Guardian was not obligated

to find a syndicator, but that it did look for a syndicator for its

own protection against Massengill's breach.

       The parties were confused about the syndicator issue even

before     the        Addendum      was     executed.       The     language          regarding

syndication in the Sales of Interest Agreement is phrased as a

condition and does not mention Guardian: "The purchase price and

sale   [of   the        general         partnership      interests        in    Massengill's

projects]        is     conditional         and    contingent        upon        the    Seller

[Massengill] contracting with a syndicator binding the syndicator

to   syndicate         the    projects       ...   and    upon      an    agreement         being

consummated between Seller and Syndicator."

       Despite this language, the parties appear to have operated

under the assumption that the original Sales of Interest Agreement

obligated Guardian to find a syndicator for the limited partnership


                                              19
interests. Adding to the confusion, both parties refer to the

syndicator provision interchangeably as a contract promise and a

condition. The pretrial order lists as contested issues both

whether Guardian was required to produce a syndicator and whether

Guardian satisfied all conditions precedent under the Sales of

Interest Agreement. Even Guardian's appellate brief to this Court,

which echoes Guardian's statement of facts in the pretrial order,

describes the agreement as being that Massengill would sell her

general partnership interests "in exchange for Guardian's payment

of $281 per unit and for Guardian's procuring a syndicator willing

to syndicate" the limited partnership interests. (emphasis added).

     Massengill,   in   her   original   complaint    and   again   in   the

pretrial order, claims that the Sales of Interest Agreement "was

contingent upon several conditions being met by the defendant

[Guardian]," and she claims Guardian was in breach for not meeting

these conditions. In an interrogatory answer, she states that "[i]t

was my understanding that Guardian would be required to syndicate

all of my projects prior to having the right to purchase the

general   partnership   interest    in   any   of    them."   In    another

interrogatory answer she states that Guardian "has failed to

fulfill its obligations pursuant to the Agreement, i.e. failed to

syndicate all of my limited partnerships."

     Guardian's position, as stated in an interrogatory answer, was

that "the Sales of Interest Agreement does not require such prior

syndication, and that had any such requirement existed, it would

have been eliminated by the Addendum." (This statement again shows


                                   20
Guardian's equivocal position between the two theories of the

Addendum's purpose). Martin of Guardian testified at trial that his

understanding of Guardian's obligation under the Sales of Interest

Agreement was that "we [would] introduce her to a syndicator and

that's   basically   it."   Guardian's   position   in   response   to   an

interrogatory was that "bringing a syndicator to Mrs. Massengill

satisfied [Guardian's] obligations under the Agreement."

     The magistrate judge recognized the ambiguity but ruled that

the later-executed Addendum clarified the issue. We hold that this

interpretation was conclusory and clearly erroneous.

     (4)   Also, other ambiguities can be found in the Sales of

Interest Agreement itself.      The Agreement refers to an Exhibit B

which purportedly lists all the security deposits. Yet, no Exhibit

B is attached to the Agreement.          There is an Exhibit B in the

record but it is unrelated; it is a promissory note between

Massengill and Madison, and has nothing to with security deposits.

Thus, it is not certain what the parties intended by making

reference to an Exhibit B in the Sales of Interest Agreement.

Further, the terms of the Agreement do not make certain what

properties are subject to the transfer of Massengill's general

partnership. Exhibit A merely lists the name of the property, the

number of units for each and the mortgage amount on each; the

contract never provides a more specific or legal real estate

description of the location of the properties. Thus, we cannot

determine even the city in which each project is located. In

addition, some of the project names listed in Exhibit A to the


                                   21
Sales of Interest Agreement are crossed out by hand, and a hand-

written "clarification" signed by Massengill and Martin states that

"the projects lined through are a part of Exhibit A." It is not

clear what the parties meant by this.

     Mississippi law recognizes that in the event circumstances

prevent "precise, advance designation of details," less precision

is required in drafting a contract. Mid-Continent, 319 F. Supp. at

1197.     In this instance, however, no circumstances existed to

prevent    a   specific     description.        Details    such    as   a   property

description could have been provided as drafts of the Sales of

Interest Agreement went back and forth prior to execution of the

document.

     In sum, we hold that: (1) It remains uncertain whether any

conditions remain to be met before Massengill is obligated to sell

her interests, because the three executed documents are internally

inconsistent     and    contradict    the      testimony    at    trial;    (2)   the

parties'    manner     of   executing     the    Addendum    was    irregular      in

comparison with the other documents, making it impossible to

determine their intent; (3) the parties' testimony and behavior

show that they were and still are confused as to the conditions and

obligations imposed by the three documents; and (4) there is a

missing exhibit, and the descriptions are unclear as to where the

properties are located and which properties were meant to be

included in the sale.

     Therefore,        we   hold   that   the    attempted       contract    between

Massengill and Guardian is not sufficiently definite and complete


                                          22
on material points to be legally enforceable under Mississippi law.

The magistrate judge's enforcement of the contract by the granting

of specific performance and damages was inappropriate.4

                              CONCLUSION

        From our de novo review of this facially ambiguous contract,

we conclude that the magistrate judge clearly erred in awarding

Guardian damages and specific performance. The three documents

executed by Massengill and Guardian are so contradictory and

ambiguous that the agreement as a whole fails. See Umphers, 562

So.2d at 1260-61. It is legally unenforceable, since its terms

cannot be determined by this or any court. See Leach, 586 So.2d at



        4
      Even if the contract were specific enough to be enforced, we
note that Mississippi law requires even greater certainty and
specificity to support an award of specific performance. Further,
even if a contract is sufficiently clear and definite to make the
granting of specific performance possible, the equitable remedy may
still be inappropriate. Specific performance will generally not be
granted where damages may be recovered and the remedy at law is
adequate to compensate the complaining party. Roberts v. Spence,
209 So.2d 623, 626 (Miss. 1968). In this case, the contract is too
indefinite to permit any enforcement, much less the specific
performance relief given by the magistrate judge. The legal damages
granted by the magistrate judge were speculative, since it is not
certain when or if the necessary approval by the FmHA and
Massengill's partners would have been obtained. Under Mississippi
law, a party must prove that he is entitled to damages "to a
reasonable certainty." Polk v. Sexton, 613 So.2d 841, 844 (Miss.
1993). Also, monetary damages are not proper unless Massengill
breached the contract. As explained in the text, the terms of the
agreement are too uncertain for Massengill to have understood her
duties under the contract to avoid breach, and too uncertain for a
court to determine whether she was in breach or not. In effect, no
contract existed, since it is so vague as to be unenforceable. If
no contract exists, then there can be no breach, and without breach
then there can be no damages. See, e.g., First Money, Inc. v.
Frisby, 369 So.2d 746, 751 (Miss. 1979). For all of these reasons,
the magistrate court erred by enforcing this agreement with damages
and specific performance.
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801. The promises and performances to be rendered by each party, as

well as the conditions to be met before such performances are due,

cannot be determined with reasonable certainty, as is required

under Mississippi law. See Beck, 456 So.2d at 758-61. We therefore

REVERSE       the      decision   of   the   magistrate   judge   enforcing   the

contract, and RENDER judgment that both Massengill's claims and

Guardian's counterclaim are dismissed with prejudice because there

is no contract to be interpreted or enforced. See First Money,

Inc., 369 So.2d at 751.

        REVERSED and RENDERED.




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