author: LEE, Justice,

text:
    AFFILIATED INVESTMENTS, INC. v. John L. TURNER et al., d/b/a John L. Turner & Associates.
    No. 48832.
    Supreme Court of Mississippi.
    Oct. 5, 1976.

      Wells, Gerald, Brand, Watters & Cox, Frank T. Moore, Jr., Clifford C. Thompson, Jackson, for appellant.
    Butler, Snow, O’Mara, Stevens & Canna-da, Thomas W. Prewitt, Rhesa H. Barks-dale, Jackson, for appellees.
    Before ROBERTSON, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

John L. Turner & Associates, a partnership, filed suit in the Circuit Court of Hinds County against Affiliated Investments, Inc. for breach of contract, and judgment was entered on a jury verdict in the amount of seventy-two thousand dollars ($72,000.00). Affiliated appeals from that judgment.

The sole question here is whether or not the alleged contract is unenforceable under the Statute of Frauds [Mississippi Code Annotated § 15-3-l(d) (1972)].

During the summer of 1971, James R. Coulter was employed by Affiliated effective January 1, 1972, at which time he became vice-president of real estate with the company. Affiliated was interested in building an office condominium, and Coulter was in charge of the project. In September, 1971, prior to his full-time employment with Affiliated, he met with John L. Turner, who was selected as the architect. A six percent (6%) architect fee was agreed upon, and it was understood that the standard architect’s contract would be executed after January 1,1972, when Coulter became officially a member of the company. Turner began preliminary work on the project, to be known as Executive Towers.

George S. Sanders, Jr., president of Affiliated, wrote the City of Jackson (from whom the lot was to be acquired) on January 24, 1972, that “We are using local design talent” referring to John L. Turner & Associates. Also, he advised the City that, if there were any questions about the project, James R. Coulter, vice-president of real estate, should be contacted. Turner sent the contract to Coulter on January 11, 1972, after signing it himself, and he requested Coulter to secure the signature of Sanders (who had signed contracts with the architectural firm in other projects) on the contract and to return a copy for Turner's files. This contract was misplaced, and Coulter requested another one from Turner who executed the second contract and sent it to Coulter. After quite a delay, Coulter made changes in the document, initialed same and sent it back to Turner to initial the changes. Turner did so and returned it to Coulter on August 17, 1972. Thereupon, Coulter wrote a memorandum to Sanders, stating that the contract was ready to be executed, attached it to the contract, and forwarded them to Sanders. The contract was never signed by Sanders.

In the meantime, Turner had continued work on the plans and specifications, and about July, 1972, when they were fifty percent (50%) to sixty percent (60%) complete, he, Sanders and Coulter discussed them and the project favorably at a dinner meeting. On June 30,1972, Turner sent Coulter a bill for soil tests in the amount of twenty-one hundred ten dollars and three cents ($2,110.03), and on July 7, 1972, a bill for engineering work in the sum of two hundred forty-two dollars and forty-two cents ($242.42), which were paid by Affiliated. A rendering (projectory or picture of the building as seen in perspective rather than elevation) for publicity of the building was displayed in the main lobby of Affiliated’s office for eight or nine months, and it showed John L. Turner & Associates as architects. A brochure with the same picture and name of John L. Turner & Associates was prepared by Sanders for circulation, and pictures of the building were published in the daily Clarion-Ledger and Jackson Daily News. Publication of the project was made in a professional weekly indicating that plans for the building were complete and John L. Turner & Associates were the architects. During the entire period Coulter worked in close contact with Turner and kept Sanders informed.

In late August, 1972, Affiliated decided that the project was not feasible, and terminated Coulter’s employment. At that time, the plans and specifications were complete. Turner billed Affiliated for seventy-five percent (75%) of the fee, which amounted to seventy-two thousand dollars ($72,000.00) [The remaining twenty-five percent (25%) related to construction]. Sanders said there was no contract, and Affiliated declined to pay the same.

At the request of appellant, the court granted Instruction No. 5 which told the jury that appellees were required to prove by a preponderance of the evidence that a contract was agreed upon whereby appel-lees would furnish architectural services to appellant, and Instruction No. 9 which defined the authority of Coulter as being actual, implied, or apparent, and told the jury that, if it found from the evidence Coulter lacked actual, implied, or apparent authority to enter the alleged contract with appellees for architectural services, then the verdict must be for appellant. Thus, by its verdict, the jury found that there was a contract and that Coulter had the authority to enter into and execute the contract. The absence of an agreement and the lack of authority on the part of Coulter are not disputed by appellant on this appeal.

We now consider the question of whether or not there is some memorandum or note of the contract in writing and signed by Affiliated which will remove it from the Statute of Frauds. The applicable part of the Statute of Frauds [Mississippi Code Annotated § 15-3-1 (1972)] is as follows:

“An action shall not be brought whereby to charge a defendant or other party:
# * * * * *
(d) Upon any agreement which is not to be performed within fifteen months from the making thereof;
******
unless, in each of said cases, the promise or agreement upon which such action may be brought, or some memorandum or note thereof, 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.”

The minutes of the Board of Directors of Affiliated dated December 13, 1971, recited that Sanders presented to the Board for discussion plans and drawings of the condominium project and that he advised the Directors Jim Coulter would be in charge of the project; the undisputed evidence in the record shows that he was in charge of same. The minutes of said Board dated April 28, 1972, authorized the Executive Committee to take necessary steps in the execution of the architect’s contract (John L. Turner & Associates). It is significant to note again that:

(1) Coulter’s signature or method of authenticating a document was by his initials “JRC” or “JC”.

(2) Coulter made changes in the contract forwarded to him by Turner at five different places and authenticated the changes by those initials.

(3) Coulter sent that contract to Turner who likewise initialed it and returned it to Coulter who then approved it, wrote the memorandum [Appendix I], attached it to the contract, and sent it to Sanders.

(4) Coulter testified:

“Q. When was the contract under which these services were performed made?
A. It was finalized at the time I applied my initials as far as I was personally concerned.
* * * * * *
Q. Did anyone tell you to initial that contract?
A. No. This was my way of advising my senior officer in the corporation that I had reviewed it and approved it and I was totally satisfied.”

In 37 C.J.S. Frauds, Statute of § 178, at 659-661 (1943), the law is generally stated as follows:

“In order that separate writings not physically connected may be considered together for the purpose of determining their sufficiency as a memorandum, it is generally held essential that their relation or connection with each other appear on their face, in other words, the writings must contain either an express reference to each other or internal evidence of their unity, relation, or connection, sufficient to make parol evidence of their connection unnecessary. Of course, an express or explicit reference from one document to another incorporates the latter in the former so as to allow the two to be considered together for the purpose of determining whether the requirements of the statute of frauds are satisfied; but, at least where the several writings are each signed by the party to be charged, an express reference is not necessary to justify their consideration together; the connection of the writings may be implied where their contents show that they relate to the same parties and subject matter and are parts of one and the same transaction.
* * * * * *
As has already been stated in subdivision a of this section, where each of the writings is signed, express reference from one to the other need not exist, provided it appears from inspection and comparison that the writings severally relate to the same subject matter and transaction. However, it is not essential that all the writings be signed; unsigned writings may be considered together with a signed writing for the purpose of spelling out a sufficient memorandum, provided they are sufficiently connected. Various phrases have been used to describe the certainty with which such connection must be shown; thus it has been held sufficient or essential that the connection appear from internal evidence sufficient to render parol evidence thereof unnecessary; that the signed writing refer to the unsigned writings in clear and distinct terms, although not eo nomine; . . ”

It is further stated at 72 Am.Jur.2d Statute of Frauds § 286, at 806 (1974):

“A memorandum may be sufficient to satisfy the statute of frauds notwithstanding the fact that it was not prepared or signed with the intent to comply with the statute, to make the contract binding, to integrate the agreement, or to furnish evidence of the contract, provided that the statute requires only a memorandum, as distinguished from a contract, in writing. A writing may constitute a sufficient memorandum or a contract notwithstanding that it contains a repudiation of the contract. However, the statute is not satisfied by a writing which recites the receipt of an offer but does not state that it is accepted or admit the contract sought to be enforced. . .”

Although the specific question was not before the Court in Ludke Elec. Co. v. Vicksburg Towing Co., 240 Miss. 495, 127 So.2d 851 (1961), the opinion followed the general statement of the law on this question and is applicable here:

“This Court recognizes the rule set out in Gulfport Cotton Oil, Fertilizer and Mfg. Co. v. Reneau, 94 Miss. 904, 48 So. 292, that parol testimony may be resorted to to show the situation of the parties and application of the terms used in a written memorandum, but the memorandum itself must contain all the features of the agreement, and although the memorandum may consist of more than one writing, they must be so related that the memorandum signed by the party to be charged can be held to approve the other documents in which the terms of the contract are set forth.
We agree, therefore, with appellant’s premise that the written ‘memorandum’ may consist of one or several writings, as stated in the general law. 49 Am.Jur., Statute of Frauds, Sec. 392, p. 695. The signed memorandum must, however, refer to the unsigned writing either expressly or by internal evidence of subject matter and occasion under such circumstances as to clearly show that the unsigned writing is necessarily incorporated into the signed memorandum. 49 Am. Jur., Statute of Frauds, Sec. 394, p. 699; Borden v. Case (Ala.1960), 270 Ala. 293, 118 So.2d 751.
This is said to be the true rule and is stated in 49 Am.Jur., Statute of Frauds, Sec. 394, p. 700, as follows: ‘The true rule, however, imposes the condition that the signed writing must have been written with at least an implied reference to the writing which it is sought to incorporate in the memorandum; otherwise, the signature on the one instrument cannot be regarded as authenticating the other writing. Therefore, it would seem that in order for an unsigned writing not referred to expressly in a signed writing to be deemed incorporated in the signed writing, it should appear that the signed writing is based in part, at least, upon the unsigned writing.’
The Reneau case, supra, was cited under this section and our Court has clearly adopted the rule requiring that the written signed memorandum must make at least an implied reference to the other writing.
This rule is pointed out in Williston on Contracts, revised Edition, Vol. 2, Sec. 581, p. 1671, as follows: ‘Where some of the papers which it is sought to include are unsigned, it is sometimes said that one paper must refer to the other, or that there must be mutual reference, but this is inaccurate. What is essential is that the signature of the party to be charged shall authenticate the whole of the writing. It is, therefore, necessary to incorporate all the documents into a writing signed by him. It will not be enough to incorporate all into an unsigned writing, or into a writing signed by the plaintiff and, consequently, it is insufficient and immaterial that such a writing refers to a writing signed by the defendant. What is necessary, then, is that a writing so signed refer to all writings not so signed that are sought to be made a part of the memorandum.
‘It is not important in what language reference is made; it is certainly enough if a plain reference is made by a document signed by the party to be charged, whatever its nature, to any other writing.’
There is a considerable difference between a written contract and a written memorandum of an oral contract. The requirement of the Statute of Frauds is met, when a written memorandum has been made by the party to be charged at any time before the action is brought. A written contract is the only evidence admissible to show its content, but parol evidence may be admitted to show that the memorandum of a parol contract is inadequate, or inaccurate, and hence does not comply with the statute. There must be a valid oral contract, of which the memorandum is a written statement, and the memorandum must be complete within itself, and cannot be added to or eked but by oral testimony.” 240 Miss. at 501-502, 127 So.2d at 854-855.

When Coulter initialed the contract, and when he later wrote and signed a memorandum expressly referring to the contract, he authenticated same or attested to the genuineness thereof, and such action satisfied the Statute of Frauds. This is true even though he sent the contract to Sanders for his signature. A corporation can act only through its agents, and, as stated supra, the jury found that Coulter had the authority to execute (authenticate) the contract.

Appellant contends that even though the writing may be complete and satisfies the Statute of Frauds, it is not sufficient unless it has been delivered, and it cites Johnson v. Brook, 31 Miss. 17 (1856); Jelks v. Barrett, 52 Miss. 315 (1876); Osler v. Atlas Assur. Co., 127 Miss. 511, 90 So. 185 (1922), and Howie v. Swaggard, 142 Miss. 409, 107 So. 556 (1926).

The first three cases involve conveyances of land, the fourth involves a conveyance of timber, and they may be distinguished from the case here. However, Coulter testified that when he initialed the contract it was finalized. He sent that instrument to Turner, who applied his initials to it, and such action on the part of Coulter amounted to a delivery of the contract, regardless of the fact that Turner returned it to Coulter.

It is further contended by appellant that, even though appellees performed seventy-five percent (75%) of the contract, a part performance will not remove the contract from the Statute of Frauds. With this contention we agree, but the action and conduct of appellant through its President Sanders, its Vice-President in charge of the project Coulter, and the entries on its minutes during the performance of the contract by appellees were tantamount to a ratification of the contract.

Appellant had used appellees on previous projects, it was satisfied with their services, and it was satisfied with the services performed by them on the Executive Towers project. Doubtless, had the project continued to completion, no disagreement would have arisen between appellant and appel-lees as to their respective obligations under the contract.

For the reasons stated, this case must be and is affirmed.

AFFIRMED.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, WALKER and BROOM, JJ., concur.

GILLESPIE, C. J., and SUGG, J., took no part in this decision.

APPENDIX I

“Mr. Sanders:

As we have now tied up the land, I believe we are ready to execute the attached.

J. C.”

      . See Appendix I.


source: Caselaw Access Project

license: Public Domain

text:
    MiLinda COATNEY v. STATE of Mississippi.
    No. 49329.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    James E. Lever, E. R. Arrington, Hazle-hurst, for appellant.
    A. F. Summer, Atty. Gen., by Karen Gil-foy, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ., and SAMS, Commissioner.

REVERSED AND DEFENDANT DISCHARGED.

PATTERSON and INZER, P. JJ., and SMITH, SUGG, WALKER and BROOM, JJ, concurring.


text:
    CITY OF GREENVILLE et al. v. John M. HOGG et ux.
    No. 48855.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Lake, Tindall, Hunger & Thackston, J. A. Lake, G. Kenner Ellis, Jr., Greenville, for appellants.

Douglas C. Wynn, Greenville, for appel-lees.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Paul J. TOWERY v. MID-SOUTH PACKERS, INC. and Liberty Mutual Insurance Company.
    No. 48927.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Carnathan & Davidson, Gary L. Carna-than, Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Wade H. Lagrone, Tupelo, for appellees.
   Appeal from Circuit Court, Lee County; Neal Biggers, Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    Johnny L. MILLER v. STATE of Mississippi.
    No. 49350.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Alton Massey, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by John Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Attala County; Clarence E. Morgan, Jr., Judge.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    In the Interest of Tommie PURNELL, a minor.
    No. 49354.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Hugh L. Bailey, Winona, for appellant.
    A. F. Summer, Atty. Gen. by Vera Madel Speakes, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Youth Court, Montgomery County; Kermit R. Cofer, Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    Lamar RODABOUGH v. Nathaniel COX et al.
    No. 48893.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Binder, Lucas & Lohrmann, G. Lowrey Lucas, Jackson, for appellant.
    Walter M. O’Barr, Biloxi, for appellees.
   Appeal from Chancery Court, Monroe County; J. D. Doty, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED.


text:
    In re VALIDATION OF $98,750.00 NEGOTIABLE NOTES, SMITH COUNTY SCHOOL DISTRICT. S. W. CRAFT et al. v. BOARD OF SUPERVISORS OF SMITH COUNTY.
    No. 49651.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Jerry L. Yeager, Raleigh, for appellants.
    L. D. Pittman, Raleigh, for appellee.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

Before PATTERSON, P. J., and SUGG and WALKER, JJ.

AFFIRMED.


text:
    John G. SUMNER v. Jo Anne E. SUMNER.
    No. 48897.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Coleman & Coleman, Lee S. Coleman, West Point, for appellant.
    James A. Dale, III, Columbus, for appel-lee.
   Appeal from Chancery Court, Lowndes County; Lenore L. Prather, Chancellor.

Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


author: JAMES E. BOST, Commissioner,

text:
    GA-PAK LUMBER COMPANY, INC. v. C. V. NALLEY, Jr., et al.
    No. 48812.
    Supreme Court of Mississippi.
    Oct. 12, 1976.

      Harry Lanier Foote, Jackson, for appellant.
    Sullivan, Sullivan & Keyes, Earl Keyes, Jackson, for appellees.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and BOST, C.
   JAMES E. BOST, Commissioner,

for the Court:

Ga-Pak Lumber Company, Inc., a building materials broker and a Mississippi corporation, sued in the Chancery Court of Madison County, seeking to collect $31,-801.60 for materials furnished to construct an apartment complex in Madison County. At the time suit was filed, the apartment complex was owned by Hickory Knoll, Ltd., a nonresident limited partnership organized under the laws of Georgia. Complainant sought to join as parties-defendant the nonresident limited partners of Hickory Knoll, Ltd., and to require them to pay into the registry of the court the capital contribution debt they allegedly owed the partnership.

Process on the nonresident limited partners of Hickory Knoll, Ltd. was obtained under the “long arm” statutes [Mississippi Code Annotated sections 13-3-57 and 13-3-63 (1972)] by service upon the Secretary of State of the State of Mississippi. Appel-lees, the nonresident limited partners, moved to quash process, vacate service, and dismiss the petition. The chancery court sustained the motion and dismissed as to these defendants. Ga-Pak has appealed, assigning as error the following ground: The lower court had jurisdiction of the nonresident limited partners.

On July 11, 1974, Ga-Pak filed its amended petition for attachment, discovery, and enforcement of a materialmen’s lien against (1) Lenn Christie and Carroll Christie, individually, and d/b/a Christie Developers; (2) Hickory Construction Company, a Mississippi corporation; (3) Hickory Knoll, Ltd., a nonresident limited partnership; (4) the nonresident general partner of Hickory Knoll, Ltd., and (5) the four nonresident limited partners of Hickory Knoll, Ltd., ap-pellees herein. These facts were averred as cause of action:

On March 30, 1973, the Christies purchased land in Madison County, Mississippi, and on that same date, borrowed $2,352,000 from United Jersey Mortgage Company, giving United Jersey their promissory note and deed of trust on the Madison County property. Appellant’s petition alleged that this loan was to pay the cost of constructing the Hickory Knoll Apartments. Thereafter, the Christies and Hickory Construction Company began construction of the apartments and bought building supplies from Ga-Pak. These supplies were sold and delivered between July 21, 1973, and December 12,1973, and of the total purchase price, Ga-Pak was not paid $31,801.60.

On December 26, 1973, after the date of final purchase and while this debt was owing, a certificate of limited partnership issued in the State of Georgia creating Hickory Knoll, Ltd., a limited partnership whose purpose was the acquisition, construction, and management of an apartment complex in Madison County, Mississippi. Lenn Christie was named as general partner, and four limited partners were listed along with their capital contributions. On this same date, the Christies conveyed the Madison County property to Lenn Christie as general partner for and on behalf of Hickory Knoll, Ltd. As consideration, Hickory Knoll, Ltd., assumed $2,200,000 of the $2,352,000 the Christies owed United Jersey Mortgage Company.

Ga-Pak’s joinder of the Christies and Hickory Knoll, Ltd., was upon the theory that Ga-Pak was the third party beneficiary of (1) the construction loan commitment between the Christies and United Jersey Mortgage Company, and (2) the assumption of that debt by Hickory Knoll, Ltd. Join-der of the nonresident limited partners was upon the assertion that the limited partnership was indebted unto the complainant and the limited partners indebted unto the limited partnership, therefore, Ga-Pak was entitled to enforce payment of the limited partners’ debt to the limited partnership as a third party beneficiary of that debt. Ga-Pak also averred that jurisdiction over the nonresident partnership under the “doing business” provision of the “long arm” statute also gave the court jurisdiction over the nonresident limited partners.

The nonresident limited partners moved to quash process and dismiss as to them, alleging by affidavit that (1) now and at all times pertinent to this suit, they have been nonresidents of Mississippi and residents of Atlanta, Georgia; (2) they are limited partners in Hickory Knoll, Ltd., a limited partnership organized December 26, 1973, in conformity with the Georgia Uniform Limited Partnership Act; that the principal place of business of Hickory Knoll, Ltd., is in Atlanta, Georgia; that the certificate of limited partnership was properly filed for record in Fulton County, Georgia, on December 27,1973, and that a true copy thereof was filed for record in the office of the Chancery Clerk of Madison County, Mississippi, on December 27,1973, and recorded in Book 8, pages 281-285, and that a copy of said certificate was annexed as an exhibit to the original petition of Ga-Pak in this cause; and (3) that at no time pertinent to the lawsuit have any of them entered into a contract with a resident of Mississippi to be performed in whole or in part by any party in Mississippi, nor have any of them com-, mitted a tort in whole or in part in Mississippi against a resident of this state, nor have any of them done any business or performed any character of work or service, or business in Mississippi; that at no time have any of them taken part in the control of the business of the limited partnership, and that the contributions of the limited partners have been paid in full to the limited partnership.

It was thereafter stipulated by the parties as follows:

That C. V. Nalley, Jr. and Theodore B. Bean (two of the nonresident limited partners — appellees) are present and ready to testify in Court this date and that if they were put on the witness stand they would testify as set out in the affidavit attached to their motion . ., and that the Court may consider the allegations of said affidavit as evidence or testimony in ruling on said motion.

The record reflects no contradiction as to any of those matters set out in the foregoing affidavit.

Mississippi Code Annotated section 79-13-3 (1972) states:

A limited partnership is a partnership formed by two or more persons under the provisions of section 79-13-5 of this chapter, having as members one or more general partners and one or more limited partners. The limited partners as such shall not be bound by the obligations of the partnership.

Section 79-13-51 provides:

A contributor, unless he is a general partner, is not a proper party to proceedings by or against a partnership, except where the object is to enforce a limited partner’s right against or liability to the partnership. (Emphasis added)

Section 13-3-57 provides:

Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. . . .

Ga-Pak argues that the ownership and operation of a multi-million dollar apartment complex in Mississippi constitutes sufficient minimum contacts and sufficiently substantial connection with the State of Mississippi to justify subjecting the limited partners of the owning limited partnership to the jurisdiction of the Mississippi courts to enforce payment of the unpaid balance of their capital contributions to the limited partnership.

We disagree. The nonresident limited partnership doing business in Mississippi is subject to jurisdiction of the Mississippi Courts under the “long arm” statute on a cause of action arising from or connected with the act of doing business in Mississippi. Miss. Code Ann. § 13-3-57 (1972); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 141-142, 175 So.2d 185, 189.

Service of process on a nonresident general partner under the “long arm” statute is sufficient to confer jurisdiction over the nonresident limited partnership and the nonresident general partner. Hibou, Inc. v. Ramsing, 324 A.2d 777 (Del.Super.1974); Miss. Code Ann. §§ 79-13-19 and 79-13-55 (1972). This rule does not apply as to the nonresident limited partners of a nonresident partnership even though the partnership is doing business in Mississippi. By Mississippi statutes already cited, it is recognized that limited partners have little or no control over partnership affairs. Consequently, they are not proper parties to suits against the partnership unless the object of that suit is to enforce the limited partner’s liability to the limited partnership, and should not be compelled to join in suits filed for any other purpose.

In this case, the affidavit of the limited partners, stipulated to be evidence and uncontradicted, show that they have done none of the acts set out by the “long arm” statute as requisite to confer jurisdiction, and show also that they have paid their indebtedness to the limited partnership in full.

Section 390, 60 Am.Jur.2d, Partnerships (1972), provides:

While a limited partnership is not an entity separate from its members, it may be considered a separate entity for purposes of pleading. And a limited partnership is generally subject to the same rules in an action for damages as are applied to a corporation or an unincorporated association.

In Republic-Transcon Industries, Inc. v. Templeton, supra, this Court detailed the three basic factors which must coincide if jurisdiction is to be entertained by the courts of this State. In our opinion, those factors are not shown to exist in this case. See Collins v. Truck Equipment Sales, Inc., 231 So.2d 187 (Miss.1970); Hilbun v. California-Western States Life Insurance Co., 210 So.2d 307 (Miss.1968); Mladinich v. Kohn, 186 So.2d 481 (Miss.1966) and 250 Miss. 138, 164 So.2d 785 (1964); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1965); Century Brick Corp. of America v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963); Livestock Services, Inc. v. American Cyanamid Company, 244 Miss. 531, 142 So.2d 210 (1962).

We find that the action of the chancellor in sustaining the motion to quash process, vacate service, and dismiss as to appellees herein was correct, and the same is, therefore, affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the opinion of the Court.


author: J. O. SAMS, Sr., Commissioner,

text:
    Wendell TOLIVER v. STATE of Mississippi.
    No. 49295.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Edward Blackmon, Jr., Canton, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before GILLESPIE, C. J., ROBERTSON and LEE, JJ., and J. 0. SAMS, Sr., Commissioner.
   J. O. SAMS, Sr., Commissioner,

for the Court:

This is an appeal of Wendell Toliver, Appellant, from his conviction of the crime of assault upon an officer, at the October, 1975, Term of the Circuit Court of Holmes County, Mississippi.

The appellant assigns two errors, the first of which is as follows:

“1. The trial Court erred by overruling your Appellant’s Demurrer to the indictment on the ground that it was duplicitous and therefore void and on the ground that it charged two distinctly separate crimes.”

The pertinent part of the indictment reads as follows:

“That WENDELL TOLIVER late of the County aforesaid, on the 12th day of August 1975 in the County aforesaid, did unlawfully, wilfully, feloniously, purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, did attempt by physical menace, to-wit: pointing a shotgun at and toward Howard Huggins while threatening to shoot said Howard Huggins, to put said Howard Huggins in fear of imminent serious bodily harm, at a time when said Howard Huggins was acting in his official capacity as a Deputy Sheriff of Holmes County, Mississippi, and within the scope of his duty and office, to-wit: attempting to effect the legal arrest of said Wendell Toliver, against the peace and dignity of the State of Mississippi.”

The court overruled the demurrer but allowed an amendment by deleting the words, “of recklessly under circumstances manifesting extreme indifference to the value of human life.” The appellant was, therefore, tried on an amended indictment, the pertinent parts of which read as follows:

“That WENDELL TOLIVER late of the County aforesaid, on the 12th day of August, 1975, in the County aforesaid, did unlawfully, wilfully, feloniously, purposely, knowingly did attempt by physical menace, to-wit: pointing a shotgun at and toward Howard Huggins while threatening to shoot said Howard Huggins, to put said Howard Huggins in fear of imminent serious bodily harm, at a time when said Howard Huggins was acting in his official capacity as a Deputy Sheriff of Holmes County, Mississippi, and within the scope of his duty and office, to-wit: attempting to effect the legal arrest of said Wendell Toliver, against the peace and dignity of the State of Mississippi.”

This assignment of error presents the question as to whether or not the.indictment charged the defendant with both simple assault under Paragraph 1 and aggravated assault under Paragraph 2 of Mississippi Code Annotated section 97-3-7 (Supp. 1975). This section reads as follows:

“(1) A person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than five hundred dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both. Provided, however, a person convicted of simple assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment for not more than five (5) years, or both.
“(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault upon a law enforcement officer or fireman while such law enforcement officer or fireman is acting within the scope of his duty and office shall be punished by a fine of not more than five thousand dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.”

In order to determine whether or not there were two offenses charged, it is necessary to analyze the two parts of the quoted section. This reveals that under sub-section (1), a person is guilty of simple assault if he:

(a) Attempts to or purposely, knowingly, or recklessly causes bodily injury to another; or

(b) Negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or

(c) Attempts by physical menace to put another in fear of imminent serious bodily harm.

It will be noted that:

(a) requires bodily injury or an attempt to cause it. Nothing in the indictment charges this.

(b) requires negligently caused bodily injury with a deadly weapon. None was charged.

(c) requires an attempt by physical menace to put another in fear of imminent serious bodily harm. This is charged and this is the only offense charged in the indictment.

On the other hand, sub-section (2) provides, a person is guilty of aggravated assault if he:

(a) Attempts or causes serious bodily injury. There is no charge of an attempt or the causing of bodily injury; or,

(b) Attempts to cause or causes bodily injury with a deadly weapon. There is no such charge in the indictment.

The only charge of the indictment is an offense under sub-section 1(c). Unfortunately, it does contain a part of sub-section 2(a), but that part of sub-section 2(a) included is not sufficient to charge any offense under said sub-section 2(a), and the words deleted by the trial court were mere surplusage. Therefore, only one offense was charged by the indictment, and the trial court correctly eliminated the surplus language.

It is the opinion of the Court that the indictment did not charge two offenses; that it was not duplicitous, and the action of the trial court in overruling the demurrer was correct.

The second assignment of error is as follows:

“2. The trial court erred in not granting Appellant’s instruction for a directed verdict.”

At the beginning of the consideration of this assignment of error, one of the basic principles of law to be considered is set forth in the case of Roberson v. State, 257 So.2d 505 (Miss.1972), citing with approval Redwine v. State, 149 Miss. 741, 115 So. 889 (1928), wherein it is stated:

“In determining the propriety of the action of the trial court in refusing to direct a verdict of not guilty in this case, the evidence tending to prove appellant’s guilt must be considered most favorably for the state. Putting it differently, every material fact proven, either directly or by reasonable inference, tending to show appellant’s guilt, must be taken as true.” 149 Miss. at 744, 115 So. at 889.

The evidence- of the State clearly established that the appellant was guilty of the offense charged in the indictment. The evidence of appellant denied it. It was a clear issue of fact for decision by the jury. The jury decided against the appellant and found him guilty. The case is affirmed.

AFFIRMED.

GILLESPIE, C. J., PATTERSON and IN-ZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER, BROOM and LEE, JJ., concur.

      . Sitting pursuant to Chapter 430, Laws of 1976. The above opinion is adopted as the ■ opinion of the Court.


author: GILLESPIE, Chief Justice,

text:
    James G. BARBEE v. UNITED DOLLAR STORES, INC.
    No. 48896.
    Supreme Court of Mississippi.
    Oct. 12, 1976.
    Thomas J. Wiltz, Paul Stephen Minor, Biloxi, for appellant.
    Eaton, Cottrell, Galloway & Lang, L. Kenneth Krogstad, Gulfport, for appellee.
    Before GILLESPIE, C. J., and ROBERTSON and LEE, JJ.
   GILLESPIE, Chief Justice,

for the Court:

United Dollar Stores, Inc. (United), an Arkansas Corporation, sued James G. Bar-bee in the Circuit Court of Harrison County to recover for merchandise sold and a two and one-half percent royalty payment on the gross receipts of a franchised retail store operated by Barbee. From an adverse judgment entered against Barbee, he appealed.

United sued to recover $12,117.49 on a sworn open account for goods sold Barbee. This figure included $719.71 in interest or service charges which during the course of the trial United relinquished its demand. It also sought recovery of a two and one-half percent franchise fee alleged to be due under a franchise agreement between the parties based on the gross sales of Barbee in a retail store. Barbee answered and filed a counterclaim in which he sought damages allegedly resulting from the sale by United to Barbee of defective and inferior merchandise, plus $1500 Barbee had paid United as a franchise fee for the privilege of operating a United Dollar Store in Gulf-port, Mississippi.

At the termination of the trial, the court ruled as a matter of law that (1) United was entitled to recover on its open account, (2) United failed to prove its case as to the two and one-half percent royalty, (3) United had breached the franchise agreement but specific damages were not proven by Barbee, and that (4) Barbee was entitled to recover the $1500 franchise fee. The net result was a judgment in favor of United against Barbee for $9,897.78. The court also found that United was a foreign corporation not qualified to do business in this State and that it was doing business in this State in violation of Mississippi Code Annotated section 79-3-211 (1972), but declined to dismiss United’s suit because Barbee had waived his right to invoke the penal effects of Mississippi Code Annotated section 79-3-247 (1972) by filing a counterclaim. United cross-appealed and urges that the trial court erred in holding that United was doing business in this State.

In our view of the case, the answer to two questions disposes of the case.

I.

Was United doing business in this State in violation of Mississippi Code Annotated section 79-3-211 (1972)?

United is an Arkansas corporation. It has not qualified to do business in this State. Code section 79-3-211 provides that a foreign corporation shall not have the right to transact business in this State until it shall have procured a certificate of authority from the Secretary of State. Code section 79-3-247 bars such foreign corporation from transacting business in this State without a certificate and from maintaining any action in the courts of this State.

United has a chain of franchised retail stores. Barbee and United entered into a retail dealer agreement on November 25, 1970, wherein United granted Barbee a franchise to operate in Gulfport, Mississippi, a franchised retail store in accordance with the terms of the agreement. This is a lengthy contract, giving United a large measure of control over the operation of the store to be operated by Barbee and provides for service fees and the payment to United of a continuing royalty of two and one-half percent of the gross monthly receipts excluding taxes on the total volume of sales. Barbee was required to give monthly written reports of business transacted each month by the 10th day of the following month. United retained the sole right to set all specifications relating to design, decor, furnishings, fixtures, signs and identifying materials, uniform record keeping practices, and other matters as may be required in the operating policies of United. All merchandise sold in the store shall be purchased from United, or from sources approved by United. Barbee agreed to advertise and promote the United program of merchandising. United agreed to provide all training service, information, techniques, and guidance sufficient to enable Barbee to operate the store. United agreed to stimulate the business through state and regional advertising and public relations campaigns. Barbee was required to carry comprehensive public liability insurance and products liability for certain limits and to add the name of United as an additional insured, failing which, United had the right to obtain and pay for such insurance and charge it to Barbee. There are many other provisions of the contract.

United has other stores in Mississippi, including one at Vicksburg, three in Jackson, and one each in Prentiss, Greenville, Clarksdale, Grenada, Rolling Fork, Greenwood, and McComb. In connection with the opening of Barbee’s store at Gulfport, United made a design layout of the store, United’s representative sketched what fixtures they wanted and where they wanted the fixtures built. United delivered the merchandise to the store, interviewed prospective employees, ran ads in the newspaper for employees, took applications, and selected eight employees. Two representatives of United instructed Barbee’s employees how to arrange and price the merchandise. In this manner, United’s employees stocked the store with merchandise. United also furnished some of the fixtures and all of the merchandise and charged them to Bar-bee. After Barbee’s store began operating, United worked out an arrangement for the exchange of goods between other Dollar Stores and Barbee’s store. United furnished and mailed out catalogues.

In view of United’s contract rights to control virtually the entire operation of the store, its actual stocking of the store, the hiring and training of employees, arranging the layout of the fixtures and of the goods, the control of advertising, and the right to sell to Barbee all of the merchandise to be sold in the store, or approve its purchase elsewhere, and the fact that United was receiving two and one-half percent of the gross of the entire business, less taxes, clearly indicates that United was doing business in the State of Mississippi in violation of the statute.

On the authority of Trane Company v. Taylor, 295 So.2d 746 (Miss.1974), and Century Brick Corporation of America v. Carroll, 247 Miss. 514, 153 So.2d 683 (1963), we hold that the trial judge was correct in ruling that United was doing business in the State of Mississippi within the meaning of Code section 79-3-211.

Because United was doing business within the meaning of the statute, it is not exempt from the penalty of the statute because of the interstate aspects of its business. It is well settled that a state cannot require a foreign corporation to obtain a certificate to do business if that corporation is engaged solely in interstate sales. Such a limitation is based on the Commerce Clause of the United States Constitution, and is reflected in our qualification statute. Section 79-3-211 provides that “ a foreign corporation shall not be considered transacting business in this state . ” if it is engaged in interstate commerce. United contends that its activities were in the nature of interstate commerce, and, therefore, it is exempt from the penal effects of Code section 79-3-247. United’s contention is without merit as there is no question that a state can require a foreign corporation to obtain a certificate if it is engaged in intrastate activities as well as interstate activities. Eli Lilly & Co. v. Sav-On-Drugs, 366 U.S. 276, 81 S.Ct. 1316, 6 L.Ed.2d 288 (1961).

United urges that the holding in Allenberg Cotton Co., Inc. v. Pittman, 419 U.S. 20, 95 S.Ct. 260, 42 L.Ed.2d 195 (1974), should control the instant case. In Alien-berg, the United States Supreme Court held that where the degree of a foreign corporation’s business activity is limited to contracts, arranged through independent brokers, to purchase cotton from local farmers, and where the cotton is temporarily stored in local warehouses for classification purposes, then the foreign corporation’s activities are not sufficiently intrastate as would require qualification. The Court stated that these local ties were nothing more than “ . . fleeting events [of an] . integral first step in a vast system of distribution of cotton in interstate commerce.” 419 U.S. at 26, 95 S.Ct. at 264, 42 L.Ed.2d at 201.

United’s previously described business activities within this State are far greater than the “fleeting events” found in Alien-berg.

II.

Did the trial court err in finding that Barbee was estopped from raising the bar of the statute because he filed a counterclaim against United?

Waiver is defined in 28 Am.Jur.2d, Estop-pel and Waiver section 154, at 836 (1966), as “ . . the voluntary and intentional relinquishment of a known right. . . ” United filed its suit and alleged that it was “a foreign corporation, licensed and qualified to carry on and conduct business in the State of Mississippi.” This was an incorrect statement — United was not qualified and licensed to do business in the State of Mississippi. In response to this pleading, the truth of which Barbee had a right to rely on, Barbee filed his responsive pleadings, including a counterclaim. After Barbee learned that United was not qualified to do business in the State, he moved for leave to amend in order to invoke the provisions of the statute barring United from maintaining an action in the courts of this State. No case is cited and United does not argue on this appeal that Barbee waived the right to invoke the statute. This question is discussed in 36 Am.Jur.2d, Foreign Corporations section 588, at 585 (1968), as follows:

In jurisdictions in which an allegation of compliance with the laws is required on the part of the plaintiff corporation, its complaint or petition is demurrable if it fails to allege that fact. And even in a jurisdiction where such an allegation is not required, if its complaint or other pleading shows that it has been doing business in violation of a statute requiring it to qualify therefor, and if such violation is, in the particular jurisdiction, a bar to the maintenance of an action, a demurrer to such pleading may be properly sustained. In any case, such objection, unless raised by a timely and proper pleading, is to be deemed waived; it cannot be raised for the first time on appeal. It has been held, however, that the fact that the defendant has set up a counterclaim in the answer, asking for the damages resulting from the breach of the contract by the plaintiff, does not operate as a waiver of his right to ask for an abatement of the action on the ground that the plaintiff had failed to comply with the conditions of doing business in the state.

We hold that Barbee had a right to rely upon the truth of United’s pleadings and by relying thereon did not waive his right to invoke the statute.

For the reasons stated, on direct appeal the action of the trial court is reversed insofar as it held that Barbee had waived the right to invoke the statute barring United from maintaining an action in the courts of this State. It follows the judgment against Barbee is reversed.

On cross-appeal, that part of the judgment holding that United was doing business in Mississippi is affirmed. The second assignment of error on the cross-appeal is disposed of as a result of the reversal of the trial court as already stated.

Because United could not maintain an action in the courts of this State, the court should have dismissed the suit at United’s cost. Therefore, we enter an order here dismissing United’s suit and vacating the judgment entered in the court below and dismissing Barbee’s counterclaim.

REVERSED ON DIRECT APPEAL AND RENDERED; AFFIRMED ON CROSS-APPEAL.

PATTERSON and INZER, P. JJ., and SMITH, ROBERTSON, SUGG, WALKER,' BROOM and LEE, JJ., concur.


author: BEATTY, Justice.

text:
    Ronald Edward JACKSON v. STATE of Alabama.
    SC 1279.
    Supreme Court of Alabama.
    Oct. 1, 1976.
    David Barnes, Birmingham, for appellant.
    William J. Baxley, Atty. Gen., and Jack A. Blumenfeld, Asst. Atty. Gen., for,appel-lee.
   BEATTY, Justice.

The appellant appeals his conviction of contempt of court by the Circuit Court of Escambia County for failure to appear in court on January 30, 1975, February 17, 1975 and April 30, 1975. We affirm.

Appellant, a lawyer, has his law office in Birmingham and also is a member of the Alabama Legislature. On January 15,1975 appellant was to appear as counsel for one Frank X. Moore at a habeas corpus hearing in Escambia County Circuit Court. Jackson did not appear although he admits having requested that the hearing be held on that day. His excuse for his absence was a “conflicting schedule which had not been contemplated.” The hearing was rescheduled for January 30, 1975. Appellant states that he failed to appear on the January date because he was in attendance at an Extraordinary Session of the Alabama Legislature. The record does not reveal that he notified the circuit court of his legislative duties although the appellant contended in argument that he had done so. The hearing was set again, this time for February 17,1975. On February 14, he filed a removal petition pursuant to 28 U.S.C. 1441, notified the State Attorney General’s Office of the removal by letter dated February 15, 1975, and sent a copy of this notification to the Escambia County Circuit Court which was received on February 17, the date set for the hearing. The appellant contends that due to the removal petition the circuit court held no jurisdiction over the Moore case on February 17 although he admits what the record shows, that the letter notifying the Escambia County Circuit Court of the transfer was received by the clerk after the petition was filed and on the day set for the habeas corpus hearing.

On February 19, the circuit court issued a show cause order directed to the appellant to show why he should not be held in contempt for failing to appear in court as Moore’s counsel. The show cause hearing was continued until April 30, 1975. The appellant arrived at the April 30 hearing over three hours late because he chose to fly from Birmingham to Mobile, rent a car and drive on to Brewton. In the course of driving to Brewton he became lost, therefore, he arrived long after the court proceeding was scheduled. During his show cause hearing appellant contended that upon his arrival in Mobile he notified the Escambia County Circuit Clerk’s office that he would arrive tardily. After this hearing, the Court found appellant in contempt of court for failing to appear on January 30, February 17, and for failing to appear at the time set on April 30.

Appellant raises three propositions of law to support his appeal. First, he insists that a lawyer-legislator is vested by statute with limited immunity from citation for contempt when in the performance of legislative functions. Alabama Code, Tit. 32, § 11(1). Second, he contends that a state citation of contempt for failure to appear is invalid where the issuing state court has been divested of jurisdiction of the parties by the filing of a removal petition in federal court, and that by virtue of this suspension of jurisdiction over the parties, the state court loses power over the lawyer for the petitioner and the alleged contemnor. Finally, he maintains that pri-ma facie contempt is not shown where a foreign counsel is tardy due to unfamiliarity with the terrain and has notified the court of his expected late arrival. No authority is cited in support of the two latter propositions.

Alabama Code, Tit. 32, § 11(1) provides:

“Members of the legislature of Alabama shall in all cases, except treason, felony and breach of the peace be privileged from arrest and shall not be subject to service of any summons, citation or other civil process during their attend-anee at the session of their respective houses and in going to and returning from the same.
“Whoever knowingly and willfully denies to any member of the legislature the privilege and immunity granted herein is guilty of a misdemeanor and upon conviction shall be punished by fine not exceeding one thousand dollars or by imprisonment for not more than one year, or both.”

It is the appellant’s contention that this statute makes him immune to the contempt charges cited by the trial court. However, after diligent search of the record, we find no evidence that he attempted to invoke the privilege provided by this section. Therefore, even though it does not appear that anyone attempted to serve him with process during his legislative service, as the statute plainly requires, his failure to claim his alleged privilege removes the appellant’s first proposition from our consideration. It is analogous to the privilege of exemption from jury duty conferred in Alabama Code, Tit. 30, § 3. This applies only if the person falling within the privileged category desires to avail himself of the privilege. Reports of the Attorney General, 1926-28, p. 740. Because the record fails to reveal that he notified the court of his membership in the legislature or of his attendance at the legislative session on January 30, 1976, either prior to or subsequent to his citation for contempt by the trial court, the appellant cannot attempt to invoke the privilege, if any, for the first time on appeal.

As an excuse for his February 17 absence, appellant relies on his second proposition, that the state citation was invalid because the state court had been divested of jurisdiction by the filing of the removal petition in the federal court, and that by virtue of this divestiture of jurisdiction, the state court lost power over the attorney for the petitioner.

The removal petition was filed pursuant to 28 U.S.C. 1443. Section 1446 of that title sets out the procedure for removal and provides that a copy of the petition shall be filed with the clerk of the state court, “which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.” (Sec. 1446(e)). It is not clear from the record that a copy of the petition was filed by the petitioner with the clerk of the state court. The appellant asserts in brief that he mailed a letter to the Attorney General stating that a petition for removal had been filed in the federal court and sent a copy of that letter to the state court clerk. We need not decide whether that was sufficient compliance with Sec. 1446(e), nor do we need to decide, assuming that it was sufficient, whether this divested the state court of power to cite the appellant for contempt. For it is undisputed that the federal court remanded the case to the state court on April 11,1976. It is also clear that the trial court found the appellant in contempt of court for failing to appear at the prescribed time on April 30, 1975.

In defense of his April 30th absence, appellant asserts that prima facie contempt is not shown when a foreign (as opposed to local) counsel is tardy due to unfamiliarity with the terrain and has notified the court of his expected late arrival. There is no “other evidence in the record of any notice to the judge of his probable tardiness. Moreover, this is a matter which was fully explored in his contempt hearing, and which was decided adversely to Jackson whose conduct was found by the trial court as falling within the lines of behavior which are punishable by the court:

“Disrespectful, contemptuous, or insolvent behavior in court, tending in anywise to diminish or impair the respect due judicial tribunals, or to interrupt the due course of trial.” (Alabama Code, Tit. 13, § 2 (Recomp. 1958.))

Considering the human effort and monetary expense involved in arranging courtroom hearings, the least a court may expect from its officers is appearance on schedule and full preparation for the dispatch of court business. If conflicts in scheduling arise, prompt, considerate notice to the judge should be provided so that those in attendance may not be unnecessarily inconvenienced and the business of the court may continue without interruption. Indeed, a court, in furtherance of justice, is given power to control the conduct of its officers in connection with a judicial proceeding before it. Alabama Code, Tit. 13, § 4 (Re-comp. 1958). Failure to attend to these minimal professional obligations to the court may subject the lawyer to summary punishment procedures should they be found to have occurred in a disrespectful or contemptuous manner.

Under the circumstances of this case the trial court, after a full hearing according due process to the appellant, has determined that his conduct was contemptuous and disrespectful. In order to maintain the respect due it the court found it necessary to punish the appellant. On the record we cannot state that the trial court was in error.

We affirm the findings of contempt for January 30 and April 30. Because we cannot know whether the trial court would have determined to impose the sentences which were imposed, absent the instance of February 17, we grant leave to the petitioner to seek from the Circuit Court of Escam-bia County a reduction in the punishment imposed.

AFFIRMED, WITH LEAVE.

HEFLIN, C. J., and MADDOX, JONES and SHORES, JJ., concur.

      . This case was originally assigned to another justice of this court, since retired. It has been reassigned to the writer, not a member of this court at time of submission, who has carefully listened to the tape recordings of oral argument. Code of Alabama, Tit. 13, § 7; Alonzo v. State ex rel. Booth, 283 Ala. 607, 219 So.2d 858.


author: ALMON, Justice.

text:
    Ledford H. TOLAR et al. v. Merle E. TOLAR, Executrix, etc.
    SC 1443.
    Supreme Court of Alabama.
    Oct. 1, 1976.

      Farmer & Farmer and Edward M. Price, Jr., Dothan, for appellants.
    Lee & Mclnish, Stephen T. Etheredge, Dothan, for appellee.
   ALMON, Justice.

This is an appeal from a declaratory judgment construing a will.

The Last Will and Testament of L. Y. Tolar, deceased, was admitted to probate on November 19, 1973. Ledford H. Tolar, Thomas E. Tolar, Clinton B. Tolar, Carl D. Tolar and Billy Joe Tolar filed suit on February 4, 1975, seeking to recover possession of lands devised in Item IV of the Last Will and Testament of L. Y. Tolar and also seeking to recover rent for the years 1974 and 1975.

Item IV of the Last Will and Testament of L. Y. Tolar reads as follows:

“I hereby give, devise and bequeath unto Ledford H. Tolar, Thomas E. Tolar, Clinton B. Tolar, Carl D. Tolar, Billy Joe Tolar, Willie Mae Mercer, Essie Taylor, Leo Jordan, Roy Jordan, and Lillie Lanier, their heirs, the following described property, to-wit:
“The East half of SE Vt, Section 11, and the West half of SW Vi, Section 12, all in Township 2, Range 28, Houston County, Alabama, and containing 160 acres, more or less, known as the Lynn Place.
“Subject to the property set out above carrying a lien for Federal and State taxes for its pro rata share of taxes, and said beneficiary legatees agreeing and assuming to pay off said mortgage on said property, if recorded against said property.” Item VIII of the will reads as follows:
“I realize that I will owe at the time of my death some State and Federal taxes, commonly called inheritance taxes on my estate, which will be a first lien against my estate, such taxes and all other taxes assessed against my estate after my death, and I will such liens be paid off as near as possible on each property whether it be personal or real property, in ratio of the value of said property each Legatee receives under this Will, to the value of my whole estate in this Will. In other words, if my personal property is valued at one third of my whole estate, then, I wish my personal property to pay one third of the State and Federal taxes, and if my real estate is valued at two thirds of my estate, then I devise and bequeath that my real estate pay two thirds of State and Federal taxes of my estate. Under each special legacy where specific real estate is Willed by me, I want my Executrix to determine or have determined the market value of the land, and I want that property to pay that portions of the State and Federal taxes as the ratio value that each legatee receive under this Will bears to the value of my entire estate. For instance, if the property received by each Legatee is valued at Vioth of the value of my entire estate, then before said Legatee is delivered possession of said property, he or she is to pay to Executrix of my estate Vioth of the Federal and State taxes. All special legacies will carry a lien to my estate for his or her pro rata share of State and Federal taxes, and until paid the lien will remain against the property, but the person receiving said property under this Will may at any time pay off said pro rata share of taxes and receive their property as set out in Will. Until the taxes are paid by each Legatee, the estate has lien on said property, and property may be sold by Executrix to satisfy said lien. If any piece of property is sold by my Executrix to pay Federal and State taxes assessed against my Estate, if there is any money left, then the balance left over shall go to special legacy holder left the property under Will. I Will that all special Legatees receiving real estate under my Will pay off the mortgage indebtedness against said property that is of record in the Probate Office of this State. As directed in paragraph one of this Will, I want my State and Federal taxes paid off first, before any one receives any bequests, or devise, or legacy under my Will which taxes are lien against all of my estate.”

Subsequent to filing suit, the appellant, Thomas E. Tolar, purchased the interest of the other devisees under Item IV of the will.

The appellee, Merle E. Tolar, is the Executrix of the Estate of L. Y. Tolar. In her capacity as Executrix, Merle E. Tolar rented the property devised to the plaintiffs in Item IV of the Last Will and Testament of L. Y. Tolar and collected rents of $1,930.00 for the year 1974 and $2,500.00 for the year 1975. Prior to renting the property she offered the devisees the opportunity to take possession, which was declined. Appellant, Thomas E. Tolar, paid his pro rata share of estate taxes on May 22, 1975, and had paid the mortgage on the property sometime prior to then.

On August 4, 1975, the trial court ruled that appellant was entitled to possession of the real estate in question and entitled to collect rent on the property from appellee for the period of May 22, 1975, through December 81, 1975, in the amount of $1,151.87, but that appellant was not entitled to rents collected in the year 1974 in the amount of $1,930.00 nor to the rent from January 1, 1975, to May 21, 1975, in the amount of $1,400.00.

The central issue before us is whether the appellant or the appellee as executrix of the estate has the rights to rents acquired between the time of the death of L. Y. Tolar and May 22, 1975. Normally,

“ . . . upon the death of the owner real estate passes, as at common law, to the devisee of the testator or heirs of the intestate, subject to be intercepted by the exercise of the personal representatives, of the power conferred on them by statute in the mode and for the purposes expressed, — to pay debts, or to effect an equitable division between the heirs or devisees.” Griffith v. Rudisill, 141 Ala. 200, 203-204, 37 So. 83, 84 (1904).

The personal representative also has the power in the proper circumstances to intercept rents should they be needed to pay the debts (Tit. 61, § 242, Code of Alabama, 1940, Recompiled 1958); however, if the rents are not needed for debts — debts which would otherwise require the sale of the property— they would belong to the devisee. Powell v. Labry, 210 Ala. 248, 97 So. 707 (1923).

“Rents or income from real property so specifically devised should be subject to the payment of testator’s debts under same circumstances by which such lands are subject to the burdens of administration.” Id. at 251, 97 So. at 710.

On the record before us we do not know what debts, if any, other than estate taxes were owed by the estate. Under the proper circumstances the rents received could be used to pay the debts of the estate, regardless of who has the “right” to the rents, though in this specific instance that would be limited to debts other than the mortgages and the pro rata share of the estate taxes associated with the specific devises of real estate, as will be subsequently explained.

The decision of the trial judge was based on his holding that the real estate vested in the executrix-appellee

“until such time as a complete inventory of his estate, real and personal, could be taken; until values could be placed upon the various items of real and personal property in his estate; until the total State and Federal estate tax bills against his estate could be calculated by his executrix and the pro rata shares of these taxes to be paid by his several legatees determined; and until the . . . [appellant] paid . . . [his] pro rata share of testator’s estate taxes to the executrix and agreed to pay or assume the mortgage against this real property and that upon the happening of these things that the interest of the executrix would be defeated and fee simple title would vest in the . . . [appellant].”

As a basis for this holding, appellee points to the following language in Item VIII of the will:

“ . . . I Will that all special legatees receiving real estate under my Will pay off the mortgage indebtedness against said property that is of record in the Probate Office of this State. As directed in paragraph one of this Will, I want my State and Federal taxes paid off first, before any one receives any bequests, or devise, or legacy under my Will which taxes are lien against all of my estate.”

Appellee also adds:

“ . . . That the testator intended these items as conditions precedent to the vesting of the property in the Plaintiffs [appellant] is further clarified by the following provision in Item VIII of the Will: “ ‘. . . but the person receiving said property under this Will may at any time pay off said pro rata share of taxes and receive their property as set out in Will.’ ”

While the above quotations from the will do suggest that the fee did not rest in the devisees immediately upon the death of the decedent, a reading of other parts of the will and of the will as a whole suggests otherwise.

In Item IV:

“I hereby will, devise and bequeath unto .
“Subject to the property set out above carrying a lien for Federal and State taxes for its pro rata share of taxes, and said beneficiary legatees agreeing and assuming to pay off said mortgage on said property, if recorded against said property.” (Emphasis added.)

In Item VII:

“ . . . Under each special legacy where specific real estate is Willed by me, I want my Executrix to determine or have determined the market value of the land, and I want that property to pay that portions of the State and Federal taxes as the ratio value that each legatee receive under this Will bears to the value of my entire estate. For instance, if the property received by each Legatee is valued at Vioth of the value of my entire estate, then before said Legatee is delivered possession of said property, he or she is to pay to Executrix of my estate Vioth of the Federal and State taxes. All special legacies will carry a lien to my estate for his or her pro rata share of State and Federal taxes, and until paid the lien will remain against the property, but the person receiving said property under this Will may at any time pay off said pro rata share of taxes and receive their property as set out in Will. Until the taxes are paid by each Legatee, the estate has lien on said property, and property may be sold by Executrix to satisfy said lien. If any piece of property is sold by my Executrix to pay Federal and State taxes assessed against my Estate, if there is any money left, then the balance left over shall go to special legacy holder left the property under Will.” (Emphasis added.)

The concern of the testator was to have each part of his estate and/or its devisees be responsible for its proportional burden of the estate taxes, rather than have the debts of the estate, including the estate taxes, paid as specified by statute and case law, e. g., selling the personalty before the realty, etc. (See Tit. 61, §§ 217, 228, 242, 243, 252, Code, supra; and Powell, supra.) We see no intent to create in the devisees a future interest. See Duncan v. DeYampert, 182 Ala. 528, 62 So. 673 (1913).

“ . . . The settled law is that a will speaks from the death of the testator, and that, in the absence of a clear manifestation of the testator’s intent to the contrary, estates shall be held to vest at the earliest possible period. The intent to postpone the vesting of an estate must be clear, and must not arise by mere inference or construction. . . . ” Id. at 532, 62 So. at 674.

The will merely gave the executrix the power to retain possession until the mortgages and the pro rata share of the estate’s taxes were paid and, if need be, to sell the property to pay them. This is supported by the fact that if the property were sold, any money left over went to the devisees, not to the estate.

Part of the facts of this case is the executrix’s offer to the devisees to come into possession before payment of mortgages and taxes. The devisees declined for reasons not entirely clear, though there is some indication that they intended to contest the will. While one may question whether this fact alters the above conclusion, we do not believe it does. If the will had been contested, and upheld, an accounting of the rents would be required, so we see no reason why an accounting should not also be required under this set of facts. See Powell, supra.

Thus, the appellant, Thomas E. Tolar, is entitled to the rents at issue unless there are other debts owed by the estate which are not shown by this record and which would be properly charged against the entire estate.

The judgment is therefore reversed and the cause remanded for entry of judgment in accordance with the views expressed herein.

MOTION TO DISMISS OVERRULED; REVERSED AND REMANDED WITH DIRECTIONS.

All the Justices concur.


text:
    Delphine DAVIDSON et al. v. William REED et al.
    SC 1454.
    Supreme Court of Alabama.
    Oct. 1, 1976.

      Wyman 0. Gilmore, Grove Hill, Howell, Johnston, Langford, Finkbohner & Lawler, Mobile, for appellants.
    Lee B. Williams, Grove Hill, for appellees.
   ALMON, Justice.

This is an appeal from a suit brought by William Reed, Willie Mae Reed, Mattie Boykin and Elbert Reed against Delphine Davidson, her son, Lamar Davidson, as agent or employee of Delphine, and others. The trial judge held the deeds given the appellants (Davidsons) by the appellees null and void and ordered the property sold for division. Each deed conveyed an interest in the same 160 acres originally owned by Andrew Reed. Each appellee had acquired his interest in the land through the laws of descent and distribution.

Andrew Reed died in 1909 leaving a wife who died in 1941, and the following children:

1. A son, William Reed, appellee.

2. A daughter, Mattie Boykin, appellee.

3. A daughter, Hattie Reed Murphy, who died intestate subsequent to the death of Andrew Reed, survived by appellee, Elbert Reed, her son, as her sole heir at law and next of kin.

4. A son, Pies Reed, who died subsequent to the death of Andrew Reed and was survived by a daughter, Marie Reed, now deceased without issue.

5. A son, Willie Reed, who died intestate and without issue subsequent to the death of Andrew Reed and is survived by his widow, Willie Mae Reed, appellee.

Three issues are presented for review: (1) with respect to the deeds from William Reed, Mattie Boykin and Elbert Reed to Delphine Davidson, whether the allegata and probata correspond; (2) with regard to the deed from Willie Mae Reed to Delphine Davidson, whether a dower interest can be conveyed prior to assignment; and (3) whether the right to have a life estate assigned can be sold for division.

As to the first issue, appellants argue that the allegations of the complaint alleged fraud based on certain specified misrepresentations and an inadequate consideration, and that the specified misrepresentations were not proven.

“It has long been the rule of our cases that the allegata and probata must correspond and if the proof does not correspond with the bill’s allegations, there can be no recovery.” Mid-State Homes, Inc. v. Cone, 294 Ala. 310, 311, 316 So.2d 333, 334 (1975). See Vol. 8A Ala.Dig., Equity &wkey;327.

(The instant case was tried prior to the New Alabama Rules of Civil Procedure.)

In Item VII of the complaint appellees alleged that Delphine Davidson, acting through her son, Lamar Davidson, made certain fraudulent misrepresentations in obtaining the conveyances from Mattie Boy-kin, William Reed, and Elbert Reed together with the allegation of inadequate consideration. More specifically, they alleged that Lamar told Mattie Boykin that she owned only 15 acres and that he was paying her one hundred dollars per acre, that unless she sold to him she would get nothing from her interest in the land because a third party was foreclosing on them, and that the deed did not include a certain house site; that Lamar told William Reed that the deed did not include a certain house site, and that unless he sold to him he would get nothing because a third party was foreclosing on them; and that Lamar told Elbert Reed that Elbert owned no interest in the land and that he only needed a deed from him to clear the title that Lamar was purchasing from the other heirs, and that Lamar had already paid William Reed, Mattie Boykin, and Willie Mae Reed all that the land was worth.

We do not understand appellees to argue in brief or in oral argument that the alleged misrepresentations were proven. Rather, they argue that the holding of the trial judge is based on the theory of fraud explained in Abercrombie v. Carpenter, 150 Ala. 294, 43 So. 746 (1907):

“The crowning glory of courts of equity is to protect the weak and ignorant from imposition by the strong and intelligent, and while it is true that certain relations of life have been definitely pointed out as raising a presumption of confidence and dependence, yet the general principle is that when one who is strong and well-informed deals with one who is ignorant, weak, and occupying a position of dependence or subordination, the strongest should exercise that uberri-ma fides in his dealings which leaves no trace of imposition. Mr. Pomeroy says: ‘When the accompanying incidents are inequitable and show bad faith, such as concealments, misrepresentations, undue advantage, oppression on the part of one who obtains the benefit, or ignorance, weakness of mind, sickness, old age, incapacity, pecuniary necessities, and the like, on the part of the other, these circumstances, combined with inadequacy of price, may easily induce a court to grant relief, defensive or affirmative.’ (Citations omitted.)” Id., at 296, 43 So. at 747.

See also Burke v. Taylor, 94 Ala. 530, 10 So. 129 (1891); Yarbrough et al. v. Harris, 168 Ala. 332, 52 So. 916 (1910); and Kirby v. Arnold, 191 Ala. 263, 68 So. 17 (1915).

We agree with appellants and appel-lees that the specified misrepresentations were not proven. This leaves the question of whether the theory of fraud found in Abercrombie, supra, was pleaded and if so, whether the proof was sufficient to support the pleading.

Immediately preceding Item VII (containing the alleged misrepresentations) was the following:

“VI
“That the complainants are uneducated and inexperienced in buying, selling and dealing in land and real property, and have always had to depend upon people who are educated and experienced in dealing with real property to advise them in handling the land described in Paragraph III hereinabove.”

Item VI is the only part of the complaint where the appellees even inferentially allege that the Davidsons took undue advantage of any of the appellees. However, this is merely a statement made in support of appellees’ fraudulent misrepresentation claim; it is not alleged as a basis of the fraud itself. Thus, the complaint did not contain an allegation of fraud based on .undue influence or undue advantage to support whatever evidence was offered under this theory. Such being the case, no recovery can be allowed. Mid-State Homes, Inc., supra.

Moreover, the evidence will not support the theory of undue influence or undue advantage. We have read the record and the facts do not exist in this case that existed in Abercrombie, supra, Yarbrough, supra, or Kirby, supra. While the evidence does show that Lamar Davidson was dealing with uneducated, elderly blacks who did not know exactly what interest they owned in the land and who received only approximately one-third of what the land was worth, there was no showing that they were told they were signing a mortgage when it was actually a deed as in Aber-crombie, or that an agency relationship existed between grantor and grantee as in Burke, or that the grantor’s attorney was used to influence the conveyance as in Yarbrough, or that the grantee represented that the deed was for 7 feet of ground when it was actually for two lots as in Kirby.

“. . . [Inadequacy of consideration is not in itself sufficient to set aside a deed. [Citations omitted]. ‘Every person, who is not under some legal disability, may dispose of his property in such manner and upon such terms as he sees fit; and whether his bargains are discreet or not, profitable or unprofitable, are considerations not for the courts of justice, but for the party himself. [Citations omitted].’ ” Aiken v. Barnes, 247 Ala. 657, 659, 25 So.2d 849, 850 (1946).

The second issue is whether the conveyance by Willie Mae Reed of her dower interest in her husband’s estate prior to assignment or allotment of that interest to her will be upheld in a court of equity. The estate of her husband, Willie Reed, son of Andrew Reed, was never probated.

This issue was decided in Wilkinson v. Brandon, 92 Ala. 530, 9 So. 187 (1890):

“A conveyance of the dower interest to a person other than the terre-tenant, before it is assigned, has different operation at law and in equity. The widow having no fixed, determinate estate in any specific part of the land until dower is allotted, her antecedent conveyance to a stranger passes no legal estate, and is inoperative at law; and, when made to the terre-tenant, operates in the nature of a release, or extinguishment of the right of dower. Until assigned, her right to dower is an equity, of which a court of law does not take cognizance; but, on the principle, that an assignment of a right in action, though not assignable at law, will be protected in equity, a court of equity will uphold the widow’s alienation of her dower interest to a stranger, and protect the rights of the alienee, there being a valuable consideration paid, and the absence of fraud, imposition or undue advantage.” Id. at 530-531, 9 So. at 188.

See also Aniton v. Robinson, 273 Ala. 76, 134 So.2d 764 (1961). Consequently, the trial judge also erred in holding this deed null and void.

Having concluded that none of the four deeds should be declared null and void, we see no need to proceed to other issues.

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, MADDOX, JONES, SHORES, EMBRY and BEATTY, JJ., concur.

      . William Reed died January 12, 1973, prior to completion of the trial. His six sons and daughters were substituted as party complainants.

      . A guardian ad litem was appointed for Marie Reed if living, or her unknown heirs at law, next of kin, devisees or legatees, if deceased, and for some other unknown heirs. Some testimony indicated that Marie Reed moved to Milwaukee, Wisconsin, 30 to 35 years ago. Her rights have not been appealed and we express no opinion as to her interest in the land.