author: PATTERSON, Chief. Justice,

text:
    JACKSON INVESTMENT COMPANY and Tower Loan Brokers of Mississippi, Inc. d/b/a Tower Loan Brokers of Gulfport, Defendants-Appellants, v. Jack BATES and Virgie S. Bates, Complainants-Appellees.
    No. 50579.
    Supreme Court of Mississippi.
    Dec. 20, 1978.

      Young, Scanlon & Sessums, Pat H. Scan-lon, Jackson, for defendants-appellants.
    Parsons & Matthews, Jack Parsons, Wiggins, for complainants-appellees.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief. Justice,

for the Court:

This case, in the nature of an accounting, involves the Small Loan Regulatory Law. Jackson Investment Company (hereinafter lender) and Tower Loan Brokers of Mississippi, Inc. (hereinafter broker) appeal from a decree of the Chancery Court of Stone County in favor of Jack Bates and his wife Virgie S. Bates (hereinafter borrowers).

Lender and broker are licensed under the Small Loan Regulatory Law or the Small Loan Privilege Tax Law. The borrowers approached broker for a loan and executed a contract with it on February 18, 1974. It provided they employ broker to negotiate a loan for borrowers from lender, mentioned in the brokerage contract, or any other lender licensed under the Small Loan Privilege Tax Law. The contract also provided that if broker were successful in obtaining a loan for borrowers, they would pay broker for all services rendered or to be rendered in negotiating the loan, including the accounting, guaranteeing, endorsing, collecting and any other actual service rendered in connection with the loan from lender.

Pursuant to this agreement broker obtained a loan from lender for borrowers who executed a promissory note on February 18, 1974, payable in eighty-four installments of $278 each, the first due March 25, 1974, for a total of $23,532. This sum was parceled for disbursement as follows: (1) Lender’s discount or interest, $6,538.26; (2) broker’s service charge, $6,113.74; (3) credit life premium, $700; (4) cash to borrowers, $10,000.

Broker was secured on its guarantee to lender by a lien on certain household furnishings and improved real property of the borrowers in Stone County. Afterward, the fire insurance policy on the real and personal property, subject to the lien, was endorsed to specify broker as the mortgagee and when renewed, broker was designated the mortgagee. This coverage, required by the deed of trust and the security agreement, was for $18,000, $13,000 on the mortgagors’ home and $5,000 on its contents.

Sixteen payments of $278 each and one of $287, a total of $4,735, were made in repayment of the loan. The last made was that due July 1975, but the loan became delinquent when the August 25, 1975, payment was not made. Lender demanded payment from broker on its guarantee, the note was paid and broker received it by assignment from lender on October 1, 1975.

On September 15, 1975, borrowers’ home and its contents were destroyed by fire. In settlement of the fire loss the insurer on October 2, 1975, issued its draft for $18,000 payable to broker and borrowers as their interest might appear and delivered it to borrowers. Borrowers retained the draft without endorsement or tender in satisfaction of the loan when broker’s manager advised that $17,598.50 was necessary to retire the note.

On October 17, 1975, borrowers filed suit alleging the loan was usurious or became so when $17,598.50 was demanded in its satisfaction after the fire. The unendorsed draft was delivered to the chancery clerk of the county when the suit was filed to await disposition “as the Court finds proper.” Thereafter, the insurer, when sued by broker in the Circuit Court of Hinds County, issued another draft for $18,000 payable solely to broker upon its representation that the amount due from insureds exceeded $18,000. Simultaneously, the insurer stopped payment on the earlier draft although it had knowledge it had been tendered into court. On February 20,1976, the last draft was applied in payment of the note assigned to broker and the deed of trust was released.

The bill of complaint was then amended to allege that the interest on the note should be computed upon the basis of an involuntary payoff, entitling borrowers to a refund of $7,940.14, and again usury was alleged. The defendants in their answer denied usury, maintaining the loan was in compliance with the Small Loan Regulatory Law. However, broker offered borrowers a refund of $1,116.48 prepaid interest which it sought to recover through setoff by way of attorneys’ fees.

The facts are largely stipulated with little or no conflict in the evidence introduced. The chancellor held the loan was involuntarily terminated and concluded it equitable for it to be paid in accord with the rate of interest agreed upon for the time the borrowers had the use of the loan.

The chancellor calculated 27.75% (interest per annum) times $10,700 (principal) for seventeen months (use of loan) equaled $4,206.45. He concluded from these calculations, and evidently others not found in the record, that $10,171.45 would satisfy the loan. He deducted $10,171.45 from the insurance payment of $18,000 and awarded borrowers a judgment for $7,828.55, the difference, plus interest at the legal rate from February 20, 1976, when the draft was delivered to broker and the note was paid. The chancellor expressed no opinion upon the issue of usury as presented by the amended bill of complaint, evidently believing the demurrer to the original bill of complaint, which was sustained on the same question, disposed of the matter.

Lender and broker appeal contending the chancellor erred in:

1. Granting a judgment against defendant in the sum of $7,828.55 plus interest of 8% from February 20, 1976;

2. Failing to hold broker’s service charge of $6,113.74 was earned and that none of such sum was refundable by prepayment; and

3. Calculating the principal sum of the loan, the interest accruing on the loan, the time the loan was in force, and the prepayment refund.

The borrowers cross appeal, contending the chancellor erred in not declaring the loan usurious and in not exacting the statutory penalty.

We address the issue of usury first since this assignment, if meritorious, demands forfeiture of principal and interest, thereby leaving the other assignments moot. Although the chancellor did not rule upon the issue, we nevertheless think the denial of usury was implicit since no penalties were imposed.

Mississippi Code Annotated section 75-17-1 (1972), the usury statute, in effect February 18,1974, governs this transaction. It provides in part:

The legal rate of interest on all notes, accounts and contracts shall be six per cent (6%) per annum but contracts may be made, in writing, for a payment of a rate of interest as great as eight per cent (8%) per annum. And if a greater rate of interest than eight per cent (8%) shall be stipulated for or received in any case, all interest shall be forfeited, and may be recovered back, whether the contract be executed or executory. If a rate of interest is contracted for or received, directly or indirectly, greater than twenty per cent (20%) per annum, the principal and all interest shall be forfeited, and any amount paid on such contract may be recovered by suit. . . . (Emphasis added).

The “Truth in Lending Disclosure Statement of Loan” executed by the borrowers to lender and broker specifies the annual percentage rate to be 27.75%. This is obviously in excess of the legal rate of 20% per annum authorized by statute. It is therefore usurious unless permitted by other statutes. Section 75-67-117(2) of the Small Loan Regulatory Law provides:

(2) On loans of one hundred dollars ($100.00) or more the service charges and the legal rate of interest, when combined, shall not exceed an amount equal to two per cent (2%) of the amount of cash received by the borrower multiplied by the number of months for which the loan is extended.

In applying this formula we calculate as follows:

$10,000 (cash received) X 2% X 84 (number of months loan extended) = $16,800.

Therefore, the maximum amount the borrowers could have been charged for the combined service charge and lender’s interest was $16,800. Obviously this exceeds the lender’s interest of $6,538.26 and the service charge of $6,113.74, as well as their total of $12,652.

Again, if the same formula is computed by twenty-four months (interval from first payment until broker was paid), the result would be:

$110,000 (cash received) X. 2% X 24 (months until loan was paid) = $4,800.

This sum is less than lender’s interest of $6,538.26 and, of course, much less than the interest plus service charge. Moreover, if this formula is used to compute interest and service charge for the number of months the loan proceeds were used until the borrowers delivered the draft into the hands of the court on October 17, 1975, for disposition, the interest is necessarily much less.

Additionally, Section 75-67-117(4) provides:

(4) Where loans are made to a borrower, either directly or indirectly, and when such loans are to be repaid in monthly (or weekly) installments, the lender may charge interest only thereon at the rate of six percent (6%) per annum, or less, for the entire period of the loan and aggregate the principal and interest for the entire period of the loan, and divide the same into monthly (or weekly) installments, and may take security therefor by mortgage, deed of trust, or title, with waiver of exemption, upon and to real estate or personal property or both.

The amount loaned was $16,813.74 (sum of the note, $23,352, less interest of $6,538.26) and by this formula we compute:

$16,813.74 X 6% X 7 yrs. (84 mos.) = $7,061.77. Again, $7,061.77, the interest permitted by statute, was greater than $6,538.26, the sum of the interest agreed upon over the extended period of the loan.

However, if this formula is used in computing the interest rate by reducing the time of the loan, seven years (84 mos.), to two years (24 mos.) and retaining the sum of the interest for the extended period, a much higher percentage rate, of course, results.

$6,538.26 (interest)/2 (yrs.) x $16,813.74 (principal) = 0.1944 (percentage rate per annum)

Computing the rate of interest using October 17,1975 (draft tendered into court) as the date payment was made, results in an annual interest rate of 23%.

S6.538.26 (interest^ 1% (yrs.) x $16,813.74 (principal) 0.2333 (interest rate per annum)

This exceeds the 20% interest rate per an-num permitted by Mississippi Code Annotated section 75-17-1 (1972) and is usurious if the formula permits such application as the borrowers contend.

In Early v. Williams, 239 Miss. 320, 123 So.2d 446 (1960), these statutory formulas were first approved, as they were later in Powell v. Sowell, 245 Miss. 53, 145 So.2d 168 (1962); Giles v. Friendly Finance Co. of Biloxi, 185 So.2d 659 (Miss.1966), appeal dismissed 385 U.S. 21, 87 S.Ct. 228, 17 L.Ed.2d 20 (1966), and Brockway v. Defenbaugh & Company, South, 216 So.2d 543 (Miss.1968), as expressing the law enacted although they were not considered praiseworthy. Our thoughts were expressed in Early, supra, and Powell, supra, and were repeated in Brockway, supra, as follows:

. “ ‘There is no disposition on the part of the Court to give praise to this legislative effort. It affords the opportunity for the charging of large brokerage fees. ***’”. . .
“It seems incredible that any borrower, to get the sum of money which appellants received, would be willing to incur the stated expenses incident thereto. This is especially true as to the enormous brokerage fee. * * * The Court cannot prevent people, who are in their right mind and under no disability, from making contracts nor rescue them from their folly. Obviously this was an improvident contract that the appellants should not have made. But Chapter 170, Laws of 1958, supra, expressly authorizes contracts such as are found in this case; and a party cannot be penalized as long as he complies with the law.”
“Therefore, since we cannot change the law as enacted by the legislature, we' must affirm.” (216 So.2d at 547)

While these cases are contended to control the present, we think they are distinguished because they were not concerned with involuntary prepayment.

It is true that logical argument can be made that in a loan in which the interest is discounted in advance the lender by requiring the borrower to procure insurance to retire the indebtedness if the security is destroyed, thereby contracts for a usurious rate of interest because the requirement acknowledges and demands prepayment before maturity. Nevertheless, we are of the opinion such requirement lacks contractual specificity to bring it within Section 75-17-1. The loan would not be usurious if the contingency for which the insurance was obtained did not occur, but if it did occur, it may or may not be usurious depending upon the time of the occurrence. The potential of violation of the statute through a contingency is not, in our opinion, a specific contract as contemplated by the statute. We conclude the contract too indefinite for the imposition of a penal statute requiring, forfeiture even though the sum demanded by the broker in satisfaction of the loan appears excessive.

Moreover, the imposition of a penalty would be contrary, in our opinion, to the principles announced in Oxford Finance Companies, Inc. v. Gray, 317 So.2d 910 (Miss.1975), and Hood v. First National Bank in Meridian, 208 Miss. 658, 45 So.2d 251 (1950), the latter case holding Mississippi Code Annotated section 75-17-11 (1972) did not intend payment of a loan prior to maturity to increase its interest rate. The cross appellants’ assignment of error is without merit, in our opinion.

The appellants’ first and third assignments of error are merged for discussion. They concern the principal remaining, the rate of interest and the time of involuntary prepayment.

The trial court correctly held the loan involuntarily terminated and correctly invoked equitable principles for its payment, in our opinion, because neither the note, the broker’s agreement nor the deed of trust provided any terms for its satisfaction through prepayment. In Oxford Finance Companies, Inc. v. Gray, 317 So.2d 910 (Miss.1975), we held that a lender by requiring a borrower to procure insurance sufficient to retire an indebtedness in the event of loss and such occurred prior to maturity, intended the unpaid balance to become immediately due and payable. We stated, in accord with the general rule, that involuntary payments are applied according to equitable principles so as to best protect the rights of each party.

Here the insurer issued its draft on October 2, 1975, payable to the parties as their interest might appear. The note was not paid nor the draft endorsed by the borrowers because a disagreement arose concerning the respective interest of the parties. Very probably this dispute resulted from the oversight of lender and broker in not making specific the terms for involuntary prepayment. The language of Oxford Finance, supra, “Holders of the note were not entitled to demand interest beyond the date of such insurance payment,” resolves the issue when prepayment is actually made. Unfortunately, it does not decide this controversy in which one of the issues is time of payment. The time of payment or the time when payment should have been made, necessarily involves the principal remaining, the interest and the sum needed to retire the note. These circumstances demand the status quo of the parties be preserved as closely as can be done in accord with their agreement so their best interest through equitable principles might be served. This does not permit penalty to one or enrichment of the other during the interim. Hoerner v. First National Bank of Jackson, 254 So.2d 754 (Miss.1971). See also Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954); and McClain v. Lamar Life Ins. Co., 178 Miss. 459, 172 So. 495 (1937).

Presently, lender was repaid part of the principal with interest as agreed when the note was executed. These payments continued through July 1975 and became delinquent after August 25, 1975, leaving the lender entitled to the August payment of $278, as agreed, plus additional legal interest because of the delinquency until it was paid or reasonably should have been. Although the fire intervened, the payment of $278 due on September 25, 1975, also became delinquent and remained so until the note was paid or should have been. The agreement of the parties can be closely preserved to this point in time, in our opinion, by requiring these payments to be made plus legal interest during the delinquency.

The draft was issued on October 2, 1975, and upon disagreement was tendered into court by the borrowers as complainants on October 17, 1975. We conclude the tender was the equivalent of payment on that date, terminating the interest. In Rubel v. Rubel, 221 Miss. 848, 75 So.2d 59 (1954), we cited with approval, and therefore adopted, from 47 C.J.S. Interest § 55, p. 67, the following:

“ ‘The pendency of litigation between the parties to an existing debt concerning it will not of itself suspend the running of interest on such debt during such litigation, where the money is not paid into court.’ ” (221 Miss, at 873, 75 So.2d at 69)

And see Bolden v. Gatewood, 250 Miss. 93, 164 So.2d 721 (Miss.1964). We think this statement apropos because the present broker and borrowers were engaged in controversy, not frivolous, as to the amount each should receive. The complainants filed their suit and tendered the draft for disposition by the court, giving rise to the question — what more could the borrowers have done? We reject the appellants’ argument that the sum necessary to satisfy the loan should be computed by payment on February 20, 1976. We also think the trial court erred in computing principal and interest based on seventeen months, the time span payments were made, which puts the payoff date before the fire occurred. It necessarily follows-the court erred in determining the principal remaining and interest due because the computations were made upon an incorrect time period.

The Small Loan Regulatory Law having received a construction in Oxford Finance, supra, that does not permit interest return for an extended period when the agreed time is reduced by involuntary prepayment, there remains to be determined whether the service charge should be proportionately reduced. In Jackson Investment Co. v. Wingo, 248 Miss. 388, 159 So.2d 175 (1964), we held:

In our opinion it was not the intention of the legislature to permit the lender or the broker in a ease of this kind to collect the proceeds of the life insurance policy at the death of the borrower, and at the same time demand payment of interest and brokerage on the basis of a 36-months period when the number of months the lender was deprived of the use of his money was only eight months. (248 Miss. at 398, 159 So.2d at 180)

The broker’s service charge of $6,113.74 contemplated services extended over eighty-four months which was reduced by involuntary prepayment, leaving the determination of a fair charge to equitable principles that would protect the best interest of both parties. We think it not illogical that the service charge be reduced to its monthly average and multiplied by the number of months, or parts thereof, the loan was in existence to reach a proper service charge. The result, in our opinion, will repay the broker for its services from the beginning of the loan until it was terminated, and we think this not inequitable to either the broker or the borrowers and is consistent with the loan's termination on October 17, 1975, which initially contemplated a service span of eighty-four months.

The broker concedes under Oxford Finance, supra, the borrowers are entitled to a refund of prepaid interest charges, but argues the refund should be offset by attorneys’ fees incurred in collecting the note through suit in the Circuit Court of Hinds County. We think the broker is not entitled to offset the attorneys’ fees because the borrowers had previously placed in litigation the issue of the amount each was to receive. The additional suit did nothing to hasten the payment of the note because the proceeds from the policy sufficient to retire the note had already been paid into court. The true issue was not payment, but rather the sum broker and borrowers were to receive. Withdrawing the tender of the draft into the Chancery Court of Stone County by stopping payment on it and designating the broker the sole payee was not a suit to collect a note upon which attorneys’ fees should be authorized. We think this is so because the actions are contrary to the general rule that a fund tendered into court cannot be withdrawn or paid except by court order. Griffith, Mississippi Chancery Practice, §§ 523 and 526 (2d Ed. 1950).

The cause is affirmed in part, reversed in part, and remanded for an accounting to determine the sum necessary to satisfy the note, the date of the involuntary payment being here determined as October 17, 1975.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE, BOWLING and COFER, JJ., concur.

      . Amended July 1974.

      . Repealed July 1974. Now found in Title 75, Chapter 17.

      . If a rate of interest is contracted for or received .


source: Caselaw Access Project

license: Public Domain

text:
    Jerry Blaine WHITE, Sr. v. Charles R. McRAE.
    No. 50786.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Bryan, Nelson, Allen & Schroeder, John W. Chapman, Pascagoula, for appellant.
    Gibbes, Graves, Mullins, Bullock & Ferris, Ernest W. Graves, Laurel, Dixon L. Pyles, Jackson, for appellee.

      Before PATTERSON, C. J., and SUGG and BOWLING, JJ.
   APPEAL DISMISSED WITHOUT PREJUDICE.

SMITH and ROBERTSON, P. JJ., and WALKER, BROOM, LEE and COFER, JJ., concurring.


text:
    James E. McAFEE v. Anita McAfee GRIFFITH.
    No. 50704.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Jane M. Wilbourn, Clarksdale, for appellant.
    John L. Hatcher, Cleveland, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Gwen WILLIAMS.
    No. 50816.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Blair & Mackey, Oscar P. Mackey, Oxford, for appellant.
    William T. Sloan, Oxford, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    Alexander Lloyd ROYAL, Jr., et al. v. Mrs. Barbara ROYAL.
    No. 50833.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Singley, Minniece, Neville & Hamill, James T. Singley, Lawrence W. Rabb, Meridian, for appellants.
    Goldman & Goldman, Thomas L. Goldman, Sandusky & Bailey, James E. San-dusky, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    James E. PLUMMER v. STATE of Mississippi.
    No. 50859.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Robert E. Covington, Jr., Quitman, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   REVERSED AND REMANDED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, WALKER, BROOM and BOWLING, JJ., concur.


text:
    Harold H. DILLON, Jane P. Dillon and Jean P. Bourne v. SOUTH CENTRAL BELL TELEPHONE COMPANY et al.
    No. 50694.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Joseph M. Stinson, Tylertown, for appellants.
    Butler, Snow, O’Mara, Stevens & Canna-da, George H. Butler, W. Scott Welch, III, Christy D. Jones, Roger M. Flynt, Jr., Jackson, for appellees.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.


text:
    Chatham HUNTER, Louise Gloverean, Margaret Myers and Joe M. Russell, Jr. v. Jerry TURNER.
    No. 50897.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Charles C. Jacobs, Jr., Cleveland, for appellants.
    Levingston, Jacks, Levingston & Land, Cleveland, William S. Adams, Jr., Rosedale, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   AFFIRMED.


text:
    Homer ELLIOTT et ux. v. Willie MARTIN et ux.
    No. 50887.
    Supreme Court of Mississippi.
    Jan. 10, 1979.
    William L. Ducker, Purvis, for appellants. Eubanks, Temple & Hudson, Kent F. Hudson, Purvis, for appellees.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


author: COFER, Justice, for the Court:

text:
    Onesifrus McKEE v. MISSISSIPPI BANK & TRUST COMPANY.
    No. 50812.
    Supreme Court of Mississippi.
    Jan. 17, 1979.

      Charles H. Ramberg, Brandon, for appellant.
    McDavid & Edmonson, Robert A. Biggs, III, Jackson, for appellee.
    Before SMITH, LEE and COFER, JJ.
   COFER, Justice, for the Court:

Appellant bought an automobile and arranged financing with appellee to which he gave the vehicle as security. The loan was in the amount of $3,104.16. He became delinquent in his monthly installments and after contacts with him in an effort to bring the debt to a current basis, appellee took from the appellant on October 6, 1976, a document entitled, “Release for Purposes of Repossession’’ upon which document ap-pellee took possession of the vehicle.

The release says in part:

. . I/we understand that the bank may dispose of the property within ten (10) days hereof and that a deficiency may result for which I/we will be responsible,

and

I/we hereby waive my/our right to receive any further notification of sale or other disposition of the property.

Despite the waiver of notice of sale of the vehicle, appellant expected that a notice would be given him.

Regardless of his expecting such notification, appellee mailed, by certified postage, a letter to appellant dated October 12, 1976, advising him as to the security property, “You have the right to redeem the vehicle by payment of all delinquent payments, attorney fees and collection costs within ten (10) days of your receipt of this letter. If the vehicle is not redeemed within that time we will offer the vehicle for sale to the highest reasonable bidder with the proceeds to be applied to your loan.’’ For some reason the letter, though unquestionably correctly addressed, was returned “unclaimed.”

Appellee contacted appellant and was advised by him that he did not receive the letter in the mail, “so (Jerry Ezelle, outside adjuster for appellee, testifying) I told the secretary to send a copy of this letter to him, but they sent another letter of the same standard form we send.” This latter letter is dated October 19, 1976, and appellant was warranted in concluding from it that the vehicle would be held for his redemption at least until October 29, 1976. Appellant testified he received the notice on October 21 or 22. There was further communication between the parties concerning appellant’s bringing his payments to a current basis and reclaiming the car, but, on October 25, 1976, appellee, having received bids therefor, sold the vehicle at private sale for a consideration of $2,105.

To procure possession of the vehicle at the outset, appellee was forced to pay off a mechanics lien $230.05, with the result that, after the sale, there remained a deficiency in the amount of $991.53, for which sum appellee brought suit in the Circuit Court of Rankin County.

Appellant, defendant in said suit, included affirmative defenses “(1) no notice of the sale of the vehicle was given to defendant by plaintiff according to law; (2) the sale was not made in conformity with “reasonable commercial practices” as required by law; and (3) the sum received at the sale did not represent the fair market value of the vehicle. He also included a counterclaim, wherein he repeated that no notice of the sale was given him as provided by law, and asserted that the automobile involved was consumer goods. He asked judgment on his counterclaim in the amount of $607.58, which he arrived at by including in the amount “an amount not less than the credit service charge plus ten percent of the principle (sic) amount of the debt or the time-place differential, plus ten percent of the cash price, or the total of $607.58.” On trial, the jury returned a verdict of $829 in favor of plaintiff-appellee and found against the counterclaimant, appellant on his counterclaim, on all of which judgment was entered.

The appellant thereupon appealed, assigning three errors which will be presently noticed. We reverse and remand.

The first error assigned has to do with the admission of business machine printouts on the transaction, but appellant concedes that their admission was harmless error, and we agree it was harmless, if it was error.

The other assignments go to two instructions given at appellee’s request.

Assignment number two is that the court should not have granted the instruction next below because it incorrectly permitted the jury to find from the evidence presented that appellant had waived the right to receive notification of the post-repossession sale of the vehicle. The instruction reads as follows:

The court instructs the jury that if you find from a preponderance of the evidence, if any, that the defendant, McKee, either received reasonable notice of the sale or waived the right to receive such notice, it then becomes his burden to prove to you that the amount received by the plaintiff for the repossessed automobile was not the fair market value under the circumstances, and if he should fail to meet that burden, it is your sworn duty to return a verdict for the plaintiff, the Mississippi Bank & Trust Co.

Mississippi Code Annotated, section 75-9-504(3) (1972), provides, as to disposition of collateral in a situation such as this before us, that

. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor .. (Emphasis added).

Mississippi Code Annotated, section 75-9-501(3) (1972), prohibits waiver of notice of intended disposition of the collateral in a case of property such as here involved. (It should be observed that the Legislature, by Laws of Mississippi, 1977, Chapter 452, § 34 effective April 1,1978, amended section 75-9-504(3), to require notification of sale or other disposition of the collateral “if he has not signed after default a statement renouncing or modifying his right to notifica tion of sale.” (Emphasis added). This amendment obviously did not control the issue of notice in this 1976 transaction.)

If it should be assumed, however, that the collateral surrender document noticed above did, regardless of the statute, operate to waive notification of the intended disposition of the vehicle, the attempted notice to appellant by certified mail indicated an unwillingness on appellee’s part, for some reason, to rely on such waiver, and in our view, operated an abandonment thereof. There is, in the next place, the sending by mail, and receipt by appellant, of a similar notification dated October 19, 1976, advising him that the vehicle would be sold if not reclaimed within ten days of receipt of the notice by appellant. (Testimony is to the effect that this notice was to have been only a copy of that earlier sent to him by certified mail.)

We conclude that appellant had a right to rely on the last notice, that of October 19, 1976, and that, in the state of this record, as hereinabove set forth, the instruction attacked in this assignment was not based on the evidence, and that the duty did not devolve upon appellant to prove that the amount received at the sale, was not the vehicle’s fair market value. We conclude, instead, that the burden was upon appellee to prove that fair market value was received, and to prove that appel-lee pursued reasonable commercial practices in disposing of the vehicle.

Walker v. V. M. Box Motor Company, Inc., 325 So.2d 905 (Miss.1976), involved a repossessed vehicle which appellee there disposed of at a private sale, with no notice to appellant. We said:

failure to give the required statutory notice imposes upon the creditor the burden of establishing by proof that the sale was made in conformity with “reasonable commercial practices,” as required by Mississippi Code Annotated, section 75-9-507(2) (1972). The creditor in such case also must assume the burden of establishing by proof that the sum received for the chattel represented its fair market value.
(325 So.2d at 906).

Fair market value having been put in issue, the jury should have rendered its verdict under proper instructions and the instruction complained of in this assignment did not afford it correct guidance.

(Lack of fair market value was made an affirmative issue in appellant’s answer, but we do not think, because it was affirmatively pleaded, that the burden fixed on appellee shifted to, and was assumed by, appellant.)

The final assignment of error is that the court should have denied the instruction that the notice to appellant of the post-repossession sale of the vehicle could be either verbal or in writing. The attacked instruction reads as follows:

The Court instructs the jury that if you find from a preponderance of the evidence in this case that The Mississippi Bank & Trust Co., in disposing of the repossessed automobile, did so in a commercially reasonable manner after having given reasonable notice to defendant either verb'ally or in writing of the time after which the vehicle would be sold at a private sale, and that the sum received for the vehicle represented its fair market value, it is your sworn duty to return a verdict for the plaintiff and counter-defendant, The Mississippi Bank & Trust Co., for the amount of the deficiency balance, if any, which resulted from the sale. (Emphasis added).

The parties are in disagreement as to whether appellant had oral notice of the intended sale, and the testimony is inconclusive one way or the other. At any rate, the last attempted notice in the record was the written one dated October 19, 1976. On this record, it was error to instruct the jury that if it found reasonable verbal or written notice had been given defendant-appellant then that notice was sufficient.

Mississippi Code Annotated, section 75-9-504(3) (1972), in pertinent detail quoted hereinabove, indicates that the notification of the time after which the sale is to take place “shall be sent by the secured party to the debtor.” (Emphasis added).

Section 75-1-201 containing general definitions applicable to the Uniform Commercial Code provides:

Subject to additional definitions contained in the subsequent chapters of this code which are applicable to specific chapters or parts thereof, and unless the context otherwise requires, in this code:
(38) “Send” in connection with any writing or notice means to deposit in the mail or deliver for transmission by any other usual means of communication with postage or cost of transmission provided for and properly addressed and in the case of an instrument to an address specified thereon or otherwise agreed, or if there be none to any address reasonable under the circumstances. The receipt of any writing or notice within the time at which it would have arrived if properly sent has the effect of a proper sending.

The parties are in agreement that the courts of the land vary in their holdings as to whether the notice required in cases such as here may be verbal or must be in writing. As examples, verbal notice is held sufficient in the cases of Bondurant v. Beard Equipment Co., 345 So.2d 806 (Fla.Dist.Ct.App., 1977); Crest Investment Trust, Inc. v. Alatzas, 264 Md. 571, 287 A.2d 261 (1972), Fairchild v. Williams Feed, Inc., 169 Mont. 18, 544 P.2d 1216 (1976); A. J. Armstrong Co., Inc., v. Janburt Embroidery Corp., 97 N.J.Super. 246, 234 A.2d 737 (Super.Ct. of N.J., 1967); and Chase Manhattan Bank v. Natarelli, 93 Misc.2d 78, 401 N.Y.S.2d 404 (Sup.Ct. Monroe Co., 1977). On the other hand, written notice is required in DeLay First National Bank and Trust Co. v. Jacobson Appliance Co., 196 Neb. 398, 243 N.W.2d 745 (1976); and Foundation Discounts, Inc. v. Serna, 81 N.M. 474, 468 P.2d 875 (1970).

It is our view that the verbiage “sent” and the definition of “send” noticed hereinabove require that the notification be in writing, and for the reasoning contained in DeLay First National Bank and Trust Co., supra:

. The requirement of a written notice eliminates all possibility of dispute as to whether a notice was actually given. It also establishes what notice was given.
(243 N.W.2d at 749).

If notice in writing is personally delivered to the debtor, or if it is sent by mail to the debtor’s address (whether actually received by the debtor or not), such personal delivery or sending by mail will satisfy the requirement of notice as far as the contents of the notice are concerned.

For the reasons herein set forth, the jury verdict and judgment thereon are reversed and the cause is remanded for a new trial on the declaration and the counterclaim.

REVERSED AND REMANDED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and BOWLING, JJ., concur.


author: BOWLING, Justice,

text:
    Howard MINOR v. STATE of Mississippi.
    No. 50921.
    Supreme Court of Mississippi.
    Jan. 17, 1979.

      Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   BOWLING, Justice,

for the Court:

Appellant was indicted, tried and convicted in the Circuit Court of the First Judicial District of Hinds County for the crime of armed robbery and sentenced to serve a term of thirty years in the State Department of Corrections. He appeals and assigns the following errors:

1. The lower court erred in overruling the appellant’s motion for a directed verdict of not guilty on the grounds that the state had failed to prove that a deadly weapon had been used in the robbery in question.

2. The lower court erred in refusing defendant’s requested jury instruction No. 13.

3. The verdict of the jury was contrary to the great weight of the evidence.

Early in the morning of February 1,1977, two young black males committed the alleged offense of armed robbery at the Holy Ghost Catholic School in Jackson, Mississippi. On that morning as the students were brought to school tuition money was collected and carried to the office. Present in the office and counting the money were Sister Leonette Kaluzny and a secretary, Mrs. Jean Garner. About 8:40 A.M. two persons entered the office and made inquiry as to whether the school had any vacancies in certain grades. They received a negative reply and left. Shortly thereafter, the same two pérsons returned; one, identified as the appellant as later discussed, exhibited a hand gun and demanded money. He and Sister Kaluzny, according to her testimony and the testimony of Mrs. Garner, had a brief tussle with the money bag, with the tussle being won by the person identified as the appellant. The second intruder took charge of the money box on Mrs. Garner’s desk and picked up other items, including some envelopes. The two persons escaped with approximately $2,000 in cash and checks.

The police were called and it was ascertained that two persons who probably were the offenders had left the vicinity of the school in a black and gray Buick automobile with two long antennas on the rear thereof.

On March 17, 1977, appellant was arrested on a Jackson street while driving a vehicle similar to that described immediately after the robbery. Sister Kaluzny identified the appellant at a line-up. She also positively identified him at the trial of the case as the person who had the gun and tussled with her over the money bag. Mrs. Garner positively identified appellant at the trial. Neither of the robbers were masked. The two ladies testified that appellant had some type of limp and had gold on his front teeth.

Appellant’s defense was an alibi. He contended that he went to work in Clinton early on the morning of February 1, and worked there all day with one James Gibbs. Witness Gibbs testified in verification of this contention.

Appellant’s wife testified that appellant’s car allegedly used in the robbery was in the driveway of the home on the morning of February 1, and that she went to work in it to begin the three o’clock P.M. shift at the University Medical Center. Appellant testified that the gold was not placed in his front teeth until after February 1.

On rebuttal, the state presented witness Doris Reeves, a medical secretary at University Medical Center who was in charge of the payroll of employees, including appellant’s wife, Julia Minor. She testified that the records showed that Mrs. Minor clocked in for work at 7:54 A.M. on the morning of February 1. On rebuttal the State also introduced Dr. Mavis Jones, a dentist who did the dental work for appellant, and she testified that the work was completed and the gold placed on his front teeth by January 21, and that was the last date she had performed any work on appellant.

Appellant presents the argument that the state did not prove appellant guilty of armed robbery, “as it was not proven that appellant was ‘armed’ with a deadly weapon.” The complete answer to this contention is that both witnesses positively stated that appellant had a pistol in his hand. They could not identify the type of gun, whether it was loaded or not, or anything but the fact that the money was secured because the pistol was in appellant’s hand. The ladies testified positively that they were put in fear of immediate injury to their persons by the exhibition of the pistol, and this clearly satisfied the requirements of the statute under which appellant was convicted.

Instruction No. 13 requested by appellant and refused by the court is as follows:

The court instructs the jury that flight of the accused shortly after commission of a crime may be considered as circumstantial evidence of a defendant’s guilt; and by the same token failure of defendant to fly or run after he knows a crime has been committed and after he knows he is suspected may be considered as circumstantial evidence of his innocence.

Appellant relies on the case of Bell v. State, 89 Miss. 810, 42 So. 542 (1906). There the accused notified the sheriff the day after the night of the alleged crime and went to the sheriff’s office and voluntarily surrendered. In the present case, the evidence shows that appellant did “fly” from the immediate vicinity of the robbery. The unique contention is made that as he did not “fly or run” from the city and was arrested six weeks later the court should have given the above instruction. We find no merit in this contention. The situation was entirely different from that in Bell, supra.

A careful study of the record reveals that the jury had ample evidence on which to find appellant guilty of the armed robbery. His identification was positive by the two principal witnesses and there was sufficient contradiction of the alibi defense to submit all questions to the jury. No reversible error is present and the conviction and sentence are affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, LEE and COFER, JJ., concur.


author: LEE, Justice, for the Court:

text:
    Arthur Fred YAZZIE v. STATE of Mississippi.
    No. 50857.
    Supreme Court of Mississippi.
    Jan. 17, 1979.

      Edwin R. Smith, Philadelphia, for appellant.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas„Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   LEE, Justice, for the Court:

Arthur Fred Yazzie was indicted and tried for manslaughter in the Circuit Court of Stone County. Evidence for the State indicates that Yazzie was driving an automobile in a culpably negligent manner and collided with another vehicle, resulting in the death of Phyllis Waits. The jury returned a verdict of guilty, Yazzie was sentenced to fifteen (15) years in the Mississippi State Penitentiary, and he appeals from that sentence and judgment.

I.

Did the trial court err in overruling appellant’s demurrer to the indictment?

The indictment charged that appellant “did unlawfully wilfully and feloniously, did [sic] kill and slay one Phyllis Waits, a human being . . Appellant contends that the indictment should have charged that the death occurred “by culpable negligence” and that use of the word “wilfully” resulted in a charge of voluntary rather than involuntary manslaughter.

The Code section under which appellant was charged with the crime of manslaughter is Mississippi Code Annotated Section 97-3-47 (1972), which sets out:

“Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.”

Mississippi Code Annotated Section 99-7-37 (1972) provides:

“In an indictment for homicide it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient to charge in an indictment for murder, that the defendant did feloni-ously, wilfully, and of his malice aforethought, kill and murder the deceased. And it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the constitution of this state.” (Emphasis added)

In Jones v. State, 244 Miss. 596, 145 So.2d 446 (1962), which involved a death in an automobile collision, the indictment charged that Allen Jones “unlawfully and feloniously did kill and slay one Deavours Grissom, a human being.” The Court held that the indictment was sufficient. Further, it was held in Williams v. State, 161 Miss. 406, 137 So. 106 (1931), a manslaughter case involving intoxication in an automobile collision, that the word “wilful” was treated as sur-plusage and the demurrer was properly overruled.

We conclude that the trial court was correct in overruling the demurrer to the indictment.

II.

Did the trial court err in denying appellant’s motion for a directed verdict, request for peremptory instruction, and motion for a new trial?

The evidence favorable to the State shows that in the afternoon of May 21, 1977, appellant and Leonard Wayne traveled from Pascagoula to Wiggins by automobile for the purpose of attending a rodeo. Appellant drove from Pascagoula to Gautier, and Wayne drove from Gautier to near Wiggins, arriving at that point about 8 p. m. The route followed was north on U. S. Highway 49. At the outskirts of Wiggins, Wayne drove across the four-lane highway to a cafe known as “The Burger Hut” situated on the west side of the highway, where appellant sought information about the location of the rodeo. Appellant and Wayne had drunk a quantity of beer, appellant admitting that he had consumed twenty-three (23) bottles. Appellant was intoxicated according to several witnesses; he failed to find out where the rodeo was located; and when he returned to the automobile, Wayne suggested that appellant drive. He drove from the Burger Hut across the southbound lanes into the northbound lanes and, shortly thereafter, came to a rest stop, which he drove into. On departing from the rest stop, appellant drove into a southbound lane of the highway and proceeded north in the southbound lane, eventually colliding head-on with a Volkswagen automobile occupied by five (5) persons, which collision resulted in the death of Phyllis Waits and three (3) other individuals in that vehicle.

Appellant contends there is no evidence he was intoxicated to the extent that such intoxication had causal connection with the collision, and he relies upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). This Court discussed a similar contention in Gandy v. State, 355 So.2d 1096 (Miss.1978) and said:

“Appellant contends that his conviction is based upon (1) the apparent intoxication of appellant, (2) the accident apparently occurred in the deceased’s lane of travel, and (3) the appellant did not have a valid driver’s license at the time of the collision. He argues that there is no proof in the record that the alleged intoxication of appellant had any causal connection to the collision. He relies upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). However, the State’s proof indicated that the collision occurred head-on between the vehicles in the northbound lane, which was the opposite lane of travel for appellant. The jury accepted that version of the case, and could reasonably believe that appellant’s vehicle traveled south in the northbound lane as a result of his intoxication.
In passing upon the request for a peremptory instruction, all evidence favorable to the State must be assumed as true, together with reasonable inferences that may be drawn from same, and, if there is enough in the record to support a verdict, the request for peremptory instruction should be overruled. Warn v. State, 349 So.2d 1055 (Miss.1977). Applying this rule, we are of the opinion that the evidence for the State is sufficient to support a verdict of guilty. Likewise, the verdict is not against the overwhelming weight of the evidence.” 355 So.2d at 1098.

We are of the opinion that the trial court properly overruled the motion for a directed verdict and motion for new trial, and correctly refused the peremptory instruction.

III.

Did the trial court err in admitting Carol Fore’s in-court identification of appellant?

The State’s witness, Carol Fore, was working at the Burger Hut cafe on the night of the accident. She testified that appellant came to the take-out window, she talked with him about ten (10) minutes, he spoke with slurring words and she smelled the odor of alcohol coming from him. She positively identified appellant as the person with whom she talked. Appellant contended on the trial that Carol Fore had been presented a photograph of Yazzie and that her testimony should not be permitted. However, there was no attempt to suppress her testimony, there was no effort made to show any facts regarding a photograph presented to her, and there was no error in admitting her testimony. Howard v. State, 319 So.2d 219 (Miss.1975); Robinson v. State, 253 So.2d 398 (Miss.1971). Appellant testified that he saw and talked with Carol Fore approximately ten (10) minutes, and it is difficult to see how he now can argue that her identification of him was prejudicial to his case.

IV.

Did the trial court err in admitting appellant’s confession?

Patrolman Breland was the first officer to the scene of the collision. He attempted to aid the people in the Volkswagen, and, after approximately one (1) hour, he began an on-the-scene investigation of the collision. The appellant and Leonard Wayne were sitting off the highway. Breland walked up to them and asked Wayne if he had been driving the second vehicle (Che-velle). Wayne stated that appellant was driving the Chevelle at the time of the collision, and appellant nodded his affirmation to that statement. Appellant contends that Breland should have advised him of his Miranda rights before asking any questions.

Appellant was not under arrest, he was not restrained of his freedom, and the officer was making a routine investigation of the accident at the scene. Such action is an exception to the Miranda rule. Ford v. State, 226 So.2d 378 (Miss.1969). The appellant testified in his own defense and stated on the witness stand that he was driving the Chevelle automobile northward in the southbound lanes of Highway 49 and that he was driving the vehicle at the time of its collision with the Volkswagen. His argument that the trial court should not have admitted his statement to the Highway Patrolman at the scene of the accident to the effect that he was driving the vehicle is without merit.

V.

Did the trial court err in imposing a sentence of fifteen (15) years in violation of the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and in violation of the Mississippi Constitution?

Appellant contends that the trial judge took into consideration the fact that four (4) people died in the collision and thus the reason for the severity of the sentence. He further argues that the sentence is cruel and unusual. This Court held in Clanton v. State, 279 So.2d 599 (Miss.1973) and cases following Clanton, that a sentence within the limits of the statute is not cruel or unusual. The imposition of sentence is within the sound discretion of the trial court, and this Court will not review the sentence so imposed, if it is within the prescribed limits of the statute. Ainsworth v. State, 304 So.2d 656 (Miss.1975).

The judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


author: LEE, Justice,

text:
    James E. JOHNS v. STATE of Mississippi.
    No. 50864.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    A. E. Gene Harlow, Grenada, for appellant.
    A. F. Summer, Atty. Gen. by Susan' L. Runnels, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   LEE, Justice,

for the Court:

James E. Johns was indicted in the Circuit Court of Grenada County for robbery, the charge was reduced to grand larceny, and he was tried and convicted. The trial judge sentenced him to four (4) years in the Mississippi State Penitentiary, and he appeals here.

On May 14, 1977, James Johns, Curtis Bailey and John Bailey were riding in Johns’ automobile visiting beer joints in and around Grenada County when they exhausted their supply of money. Johns indicated that he knew where they could get some money, and they drove to a pool hall and found Howard Morphus who worked in the place and whom Johns knew, and then drove to another beer joint near the Grenada-Calhoun County line. After planning to rob Morphus, they left the establishment with him and drove to a little-used gravel road in Grenada County. At that point, they pretended to have a flat tire. Mor-phus got out of the car, began walking away toward the highway, and Curtis Bailey struck him over the head with a monkey wrench. The sum of three hundred sixty-five dollars ($365.00) then was taken from his person. The conspirators, evidently thinking Morphus to be dead, drove off [leaving him alongside the road] and divided the money taken from Morphus. However, Morphus revived and subsequently the robbers were apprehended by the sheriff’s department. The officers accompanied Bailey and Johns back to the scene of the robbery and found the monkey wrench, and a twenty-dollar ($20.00) bill lying in the road. They also observed signs indicating where a scuffle had occurred. Curtis Bailey testified on behalf of the State at the trial.

I.

Did the trial court err in denying appellant’s motion for a new jury panel on the ground that the jurors were prejudiced by the appellant attempting to enter a plea of guilty?

On the day the case was set for trial, the district attorney moved in open court that the charge in the indictment be reduced from robbery to larceny, which motion was granted. The district attorney then announced that appellant’s attorney had a statement for the court. Appellant’s attorney said that appellant wished to change his plea from not guilty of robbery to guilty of larceny. Upon being questioned by the trial judge, the attorney assured him that he had advised appellant as to his constitutional rights.

The trial judge then interrogated the defendant as to whether or not he wished to change his plea, whether he was satisfied with his attorney, whether he knew that he was entitled to a trial by jury, all of which was answered in the affirmative. The judge then asked appellant whether he was guilty of the charge, and the appellant said, “I guess I am, I was there.” He again was asked the same question and again gave the same response. Thereupon, the judge declined to accept the guilty plea and the case proceeded to trial. Previous to that action, appellant’s attorney asked to withdraw as counsel, which request was refused.

Appellant objected to the jury on the ground that he was prejudiced by what had transpired before it. The voir dire of the attorneys does not appear in the record, but the trial judge stated that the panel had been thoroughly voir dired and that no jur- or indicated any prejudice or bias on account of what had happened. The entire record is absent any evidence or indication that the jury was prejudiced on account of what had transpired or that appellant did not receive a fair trial..

In Yates v. State, 342 So.2d 312 (Miss.1977), where the record did not indicate prejudice on the part of the jury, and, in holding that in such situation the rulings of the trial court must be presumed to be correct, the Court said:

“In Shelton v. Kindred, 279 So.2d 642 (Miss.1973), the Court stated:

‘The burden rested upon appellant to see to it that the record contained all data essential to an understanding and presentation of matters relied upon for reversal on appeal. Willenbrock v. Brown, 239 So.2d 922 (Miss.1970).
This Court may not act upon or consider matters which do not appear in the record and must confine itself to what actually does appear in the record. It must be presumed that the rulings of the trial court were correct, and such presumption will prevail, unless the actual record supports the contrary view.’ 279 So.2d at 644.” 342 So.2d at 316.

This is the second case appearing before us in the last ninety (90) days which has involved this question.

Although the trial judge did not err in the present case, in order to avoid possible reversible error in the future, we suggest that trial judges devise methods in accordance with their local facilities and procedures to prevent such situations from occurring.

We have carefully reviewed the other contentions of appellant that the trial court erred in allowing testimony of Deputy Sheriff Carroll relating to confessions made by appellant, the overruling of an objection to arguments made by the district attorney, and failure to grant appellant’s motion for judgment notwithstanding the verdict, and find them to be without merit. Therefore, the judgment of the trial court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.


text:
    C. G. ARRINGTON v. STATE of Mississippi.
    No. 50877.
    Supreme Court of Mississippi.
    Jan. 17, 1979.

      Thomas Gene Clark, Laurel, Charles M. Leggett, Waynesboro, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   LEE, Justice,

for the Court:

C. G. Arrington was indicted and tried for murder in the Circuit Court of Wayne County. He was found guilty of manslaughter and was sentenced to ten (10) years in the Mississippi State Penitentiary. From that sentence and judgment he appeals and assigns the following errors in the trial below:

(1) The lower court erred in excluding evidence offered by the defendant relative to the character and reputation of the deceased, together with the record of convictions of the deceased.

(2) The lower court erred in refusing to grant Instruction D-9 requested by the defendant.

On May 5, 1977, about 7:00 p. m., appellant and his wife drove up to the Midway Curb Market, Waynesboro, and appellant went inside, purchased a soft drink and newspaper, and started out. Thomas Mack Sumrall and Robert McMichael, both of whom were employed on an oil rig in Louisiana, had gotten off work, and had come to Waynesboro, where they entered the store. When Sumrall went inside, he apparently blocked the entrance, Arrington grabbed Sumrall around the collar to remove him from the doorway, an altercation ensued, and the two men scuffled back to Arring-ton’s truck which was parked about twenty (20) feet from the store front. Arrington picked up an air pump from the bed of his truck and attempted to strike Sumrall with it. Sumrall was the larger of the two, he took the instrument away from Arrington, and hit Arrington on the head, causing the air pump to break. Arrington indicated that he had enough of the fight and Sum-rall turned around, walked away from him and the truck, and started to enter the store again. Arrington got a .22 rifle from his truck and about the time Sumrall reached the front door of the store, Arrington began shooting at him [three (3) empty shell hulls were found at the truck]. Sumrall fell and expired, having been struck by one of the bullets, which entered his chest, ranged upward and lodged behind his right shoulder blade.

I.

Did the trial court err in excluding evidence offered by appellant as to the character and reputation of the deceased along with a record of convictions of the deceased?

Appellant complains that the trial court declined to permit him to introduce evidence of deceased’s bad reputation for peace or violence in the community in which he lived and declined to permit introduction of deceased’s criminal record, which included three (3) convictions for violation of prohibition laws, one for resisting arrest, one for destroying private property, and two for violation of parole.

The appellant claimed self-defense, but at the time he shot Sumrall, appellant was the aggressor. The general rule on self-defense is stated in 40 Am.Jur.2d Homicide § 145, at 434 (1968):

“The fault in bringing on a difficulty which will deprive one of the right of self-defense is not confined to the precise time of the fatal encounter which results, but may include faults so closely connected with the difficulty in time and circumstances as to be fairly regarded as operating to bring it on. A plea of self-defense is of no avail, notwithstanding the deceased provoked the original quarrel with the accused, where, after that quarrel had ended, and there had been a cessation of the conflict, or the deceased had withdrawn therefrom, a subsequent difficulty was provoked or brought about by the accused. He is to be deemed the aggressor for bringing on or renewing the affray, even though, in so doing, he had no intention of killing or doing serious bodily harm.”

For a homicide to be justifiable on the ground of self-defense, the danger to the slayer must either be actual, present and urgent or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him or do him some great bodily harm and, in addition, there must be imminent danger of such design being accomplished. Bright v. State, 349 So.2d 503 (Miss.1977). The general rule is that evidence of the bad character of the deceased is competent where there is doubt as to which of the parties was the aggressor.

In the present case, Sumrall had withdrawn from the affray and had walked away from Arrington a distance of approximately twenty (20) feet with his back toward Arrington, when the shooting began. Under those facts, which are undisputed, the evidence was not competent on the issue of which party was the aggressor. Furthermore, the trial judge stated to counsel for appellant in chambers that he would permit him to introduce testimony regarding the general reputation of Sumrall for peace or violence in the community in which he lived. Counsel then questioned the sheriff about same, but the sheriff replied that he did not know Sumrall’s reputation. No attempt was made to prove the deceased’s general reputation in the presence of the jury.

In Shinall v. State, 199 So.2d 251 (Miss.1967) and Newsome v. State, 197 Miss. 797, 20 So.2d 708 (1945), this Court held that specific acts of violence committed by the deceased party are not admissible to show evidence of bad reputation.

We are of the opinion that there is no merit in the first assignment of error.

II.

Did the trial court err in refusing to grant Instruction D-9 [Appendix] requested by appellant?

The Instruction D-9 was a self-defense instruction and contained the sentence “The jury must place themselves, as far as possible, in the defendant C. G. Arrington’s place, and then judge whether the danger was present, or should have been considered apparent by an ordinary man of judgment and prudence in like condition.”

The trial judge granted the instruction absent the quoted sentence, assigning as his reason that the deleted part violated the Golden Rule principle. The instruction is not erroneous under the Golden Rule principle and was approved in Hood v. State, 21 So. 643 (Miss.1900), in which case the refusal of said instruction was held to be error under the peculiar circumstances of Hood.

In the present case, appellant contends that Instruction D-9 set forth his right to self-defense and he complains that he was prejudiced by the refusal of same. The Court granted Instructions D-7 and D-10 which presented the theory of self-defense to the jury. We are of the opinion that the jury was fairly instructed on the law of the case and that refusal to include the deleted part in Instruction D-9 did not constitute reversible error.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM, BOWLING and COFER, JJ., concur.

APPENDIX

“INSTRUCTION D-9

The Court instructs the jury that in deciding upon the guilt or innocence of the defendant C. G. Arrington they should determine what an ordinary and reasonable man might have fairly inferred from all the facts and circumstances by which the evidence shows that the defendant was at the time surrounded, and in so doing, must not try him in the light of subsequent developments nor must they require of him the same cool judgment that the jury can now bring to bear upon the occurrence. The jury must place themselves, as far as possible, in the defendant C. G. Arrington’s place, and then judge whether the danger was apparent, or should have been considered apparent by an ordinary man of judgment and prudence in like condition. The danger to life, or great bodily harm, need not have been real, present or urgent at the very moment of the killing, but only apparently so. The question is, whether or not the danger was apparently so imminent and present at the time of the killing that a reasonable and prudent man situated as C. G. Arrington was, would believe it was necessary to kill in order to avoid the loss of life or to prevent great bodily harm, and if from all of the evidence in this case, the jury has a reasonable doubt whether such was the case when the defendant Arrington killed the deceased, then they must find the defendant not guilty.”


text:
    FIRST COMMERCE REALTY INVESTORS v. Ernest THOMAS.
    No. 50817.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Wells, Wells, Marble & Hurst, Roland D. Marble, Erski'ne W. Wells, Jr., Jackson, for appellant.
    Ellis, Braddock & Bost, Gerald E. Braddock, Vicksburg, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   REVERSED AND REMANDED.

SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, LEE and COFER, JJ., concur.


text:
    Danny E. WHITE v. STATE of Mississippi.
    No. 50700.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Berry & Harris, Thomas D. Berry, Jr., Gulfport, for appellant.
    A. F. Summer, Atty. Gen., by Robert D. Findley, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    SOUTHERN PACIFIC LUMBER COMPANY, INC. v. C. B. GROOMS.
    No. 50848.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Courtney & Courtney, H. A. Courtney, Jackson, for appellant.
    Billy L. Fulgham, Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    Melton WATSON v. STATE of Mississippi.
    No. 50888.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    Melvin & Melvin, Leonard B. Melvin, Jr., Sarah L. Entrekin, Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   AFFIRMED.


text:
    Harrell LINDSEY v. STATE of Mississippi.
    No. 50878.
    Supreme Court of Mississippi.
    Jan. 17, 1979.
    John Paul Moore, Starkville, for appellant.
    A. F. Summer, Atty. Gen. by Phillip H. Schwartz, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and BROOM, JJ.
   AFFIRMED.


author: BLOOD WORTH, Justice. TORBERT, Chief Justice

text:
    John D. SHERRILL, Jr. v. FRANK MORRIS PONTIAC-BUICK-GMC, INC., a corporation, et al.
    77-334.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 19, 1979.

      John W. Cooper of Cooper & Huey, Birmingham, for appellant.
    Stephen R. Arnold of Jones, Arnold & Roden, Birmingham, for appellee, Frank Morris Pontiac-Buick-GMC, Inc.
    C. Lee Reeves of Sirote, Permutt, Friend, Friedman, Held & Apolinsky, Birmingham, for appellee, Bank of the Southeast.
    C. John Holditeh, Birmingham, for appel-lee, First Ala. Bank of Birmingham.
   BLOOD WORTH, Justice.

This is an appeal from final judgment and from denial of a motion for new trial in a suit for declaratory judgment and other relief brought by appellant, Dr. Sherrill. We affirm in part, reverse in part and remand.

Dr. Sherrill entered into an agreement with United Motorists Association (UMA), called a “Fleet Plan.” UMA would locate automobiles and have them delivered to its customers. The customers would then execute a security agreement and note to UMA, and the note would be discounted to a bank, in this case appellee Bank of the Southeast. The bank would credit UMA’s account in payment for the note. UMA would then pay the car dealer by check or draft which, when presented by the dealer, would be paid by the bank. The customer-buyer would make payments on the note to the bank and would later deliver the used car to UMA which could then keep it by making a final “balloon” payment equal to the “residual” value of the car. Alternatively, the customer could keep the car by making the final payment to the bank. The plan purportedly had tax advantages and enabled customers to purchase automobiles at a “fleet discount.”

Two transactions are involved in this suit. In the first, Dr. Sherrill obtained a Buick Skyhawk and made eight or nine payments on his note to the Bank of the Southeast. The dealer was paid by UMA. The Sky-hawk had defective brakes, so Dr. Sherrill turned it in to UMA for a new car, a Buick Skylark. The dealer in this second transaction, appellee Frank Morris Pontiac-Buick-GMC, Inc. (Morris), was given a draft by UMA in payment. This draft was dishonored by Bank of the Southeast due to insufficient funds. Two weeks after delivery of the Skylark, UMA went bankrupt. Bank of the Southeast sold the Skyhawk, which had been turned in to UMA, but there was still a deficiency remaining on Dr. Sherrill’s first note. No payments were made on the second (Skylark) note. Morris demanded payment or return of the Skylark from Dr. Sherrill, so he paid Morris by check drawn on appellee First Alabama Bank of Birmingham. The next day, after consulting a lawyer, Dr. Sherrill attempted to stop payment, but the check was paid anyway.

Dr. Sherrill then brought suit to determine his rights and obligations under the two notes and for a return of his money from Morris or First Alabama Bank. Bank of the Southeast counterclaimed on the two notes. The court found Dr. Sherrill liable on both notes and further held that neither Morris nor First Alabama Bank was liable to Dr. Sherrill.

I

Bank of the Southeast

Dr. Sherrill contends that Bank of the Southeast is not a holder in due course of the two notes and that the cars are consumer goods subject to the Mini-Code, § 5-19-1 et seq. (Code 1975). If these contentions are correct, Bank of the Southeast would be simply a holder, subject to defenses which Dr. Sherrill would have against UMA.

Holder in due course is defined in § 7-3-302 (Code 1975) as follows:

“(1) A holder in due course is a holder who takes the instrument:
(a) For value; and
(b) In good faith; and
(c) Without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.”

Dr. Sherrill challenges each one of these elements.

First, he contends that Bank of the Southeast did not give value for the notes because it did not see that the entire consideration was paid to the sellers, the automobile dealers. Dr. Sherrill apparently equates “value” and “consideration” with the purchase price of the automobile. However, UMA’s discounting of the notes to Bank of the Southeast was not done in exchange for payment to the car dealers. Bank of the Southeast gave value for the notes by crediting UMA’s account. UMA was responsible for paying the car dealers, and Bank of the Southeast was under no duty to police UMA in the payment of its obligations. Further, the value given in exchange for the notes is not the money paid in installments by Dr. Sherrill to Bank of the Southeast after the notes were assigned. Dr. Sherrill’s payments do not determine whether Bank of the Southeast took the notes for value.

Next, Dr. Sherrill contends that Bank of the Southeast did not act in good faith and violated the terms of a special deposit. He alleges that Bank of the Southeast paid Dr. Sherrill’s funds to UMA when it was supposed to hold the funds for payment to the car dealer. This contention lacks merit. Dr. Sherrill had no funds in Bank of the Southeast; he merely made installment payments on the assigned notes. There was no special deposit, and if there had been one, it would not have been Dr. Sherrill’s, but UMA’s. The only funds given UMA were given in the form of a credit to UMA’s account in exchange for the notes. Bank of the Southeast was not to hold funds to pay the car dealers, since that was UMA’s responsibility.

Third, Dr. Sherrill insists that Bank of the Southeast had notice of a “scheme to sell and finance vehicles ... on a pseudo lease proposition” and had notice that UMA breached a fiduciary obligation by negotiating the notes for its own benefit and commingling the proceeds with its other funds. These contentions also lack merit, if for no other reason, for the reason that, assuming their truth, Dr. Sherrill himself was a participant therein. Moreover, UMA breached no fiduciary duty by negotiating the notes, and the proceeds from negotiation belonged to UMA, not Dr. Sher-rill.

As another factor bearing on good faith and notice, Dr. Sherrill contends that UMA was an agent of Bank of the Southeast, citing United States Finance Co. v. Jones, 285 Ala. 105, 229 So.2d 495 (1969). That case is not an authority in point, since there was no finding in Jones that the mortgagee-assignor was an agent of the assignee, the finance company.

As we held in Wood Chevrolet Co. v. Bank of Southeast, 352 So.2d 1350 (Ala.1977), agency is a question of fact subject to the ore tenus rule. Here, although there is some evidence in Dr. Sherrill’s favor, we do not think the great weight of the evidence supports a finding of agency.

In support of his assertion that any defenses to the notes which he might have against UMA may be asserted against Bank of the Southeast, Dr. Shérrill offers the Mini-Code, § 5-19-1, et seq. (Code 1975), which states as follows in § 5-19-5:

“In a consumer credit sale or consumer lease, the seller or lessor may not take a negotiable instrument other than a check as evidence of the obligation of the buyer or lessee. A holder is not a holder in due course if he takes a negotiable instrument with notice that it is issued in violation of this section. A holder in due course is not subject to the liabilities prescribed in this chapter.”

Assuming arguendo that these transactions were consumer credit sales or consumer leases, Bank of the Southeast is still not subject to Dr. Sherrill’s defenses since it was not shown that the bank took the notes with notice of a violation of the Mini-Code. See Jefferson v. Mitchell Select Furniture Co., 56 Ala.App. 259, 321 So.2d 216 (1975). The security agreements executed in conjunction with the notes indicate that the vehicles were to be used for “business” purposes, not for “pleasure”, as Dr. Sherrill contends was their use. While it is true that actual use determines the character of the transaction, there is no evidence that Bank of the Southeast knew, or should have known, the actual use to which these cars were put. Evidence on this point was heard ore tenus, or partly so, and we do not find that the great weight of the evidence supports the conclusion that Bank of the Southeast had notice of any violation of the Mini-Code or of the actual use to which the vehicles were to be put so that the transactions fell within the Mini-Code.

Dr. Sherrill cites another section of the Mini-Code, § 5-19-11, to support his contention that the bank’s counterclaim on the notes should have been abated. This section requires a creditor bringing an action for collection to file an affidavit stating

“(1) There has not been a violation of [the Mini-Code], and
(2) The debtor, if a resident of this state, on information and belief of creditor is a resident of the county in which the action is filed.”

This section is inapplicable. The bank’s suit for collection is in the form of a counterclaim, so that subsection (2) is not applicable. Moreover, as we have already stated, the evidence shows Bank of the Southeast is a holder in due course without notice of any violations of the Mini-Code. A violation of the Mini-Code by the original creditor is no defense against such a holder in due course, so that subsection (1) is inapplicable.

Dr. Sherrill finally contends that the bank has violated the provisions of the federal Truth in Lending Act. We do not reach this issue. The applicability of this Act was not raised during the trial, nor was it presented on motion for new trial. Dr. Sherrill made no claim for damages under this Act other than a general claim for further relief in addition to a declaration of rights.

An issue not raised in the trial court cannot be raised for the first time on appeal. Brown v. Robinson, 354 So.2d 272 (Ala.1977). Nor will this Court review a case on a theory different from that on which it was tried in the trial court. Bailey v. City of Mobile, 292 Ala. 436, 296 So.2d 149 (1974).

II

First Alabama Bank

Dr. Sherrill claims the sum of $4,860.61 from First Alabama Bank for allegedly paying the check to Frank Morris Buick after a valid stop payment order had been given. The check was payable to the order of “Frank Morris Buick” in the amount of “$4,860.61.” It was dated “2/6/1976” and was not numbered. The oral stop payment order, later confirmed in writing, stated the check was payable to “Walter Morris Buick” dated “6/3/76”, in the amount of “$4,860.61.” The issue is whether the notice described the check with sufficient specificity so as to constitute a valid stop payment order.

The drawer of an uncertified check has the right to stop payment by giving reasonable notice to the drawee bank. If the bank then pays the check, it is liable at common law for the amount paid, based on the relation of debtor and creditor. Commercial Bank v. Hall, 266 Ala. 57, 94 So.2d 198 (1957). Under the UCC, a customer may stop payment on a check by giving an order which is “received at such time and in such manner as to afford the bank a reasonable opportunity to act . . ” § 7-4-403(1) (Code 1975). To be effective and bind the bank, the order must be explicit and describe the check with reasonable accuracy. J. Brady, Law of Bank Checks § 219 (1926); Michie on Banks and Banking ch. 9, § 194, at 518 (1973).

Since the check in question is not numbered, there are only three elements involved in the description given in the stop payment order: amount, payee and date. The amount of the check, $4,860.61, was correctly given. The payee was mistakenly named as Walter Morris Buick. Dr. Sherrill testified that by dating the check 2/6/1976, he meant June 2, 1976 (apparently utilizing the European and military custom). Without deciding whether a reasonable person would so conclude, we note that the date stated in the stop payment order was June 3, not June 2. Thus, only one of the three descriptive elements was correctly stated.

Cases involving stop payment orders usually involve the name of the payee, the amount, the date, and the check number, although any one element alone may not be controlling. It has been held as a matter of law that a notice to stop payment on a draft payable to “James F. Manison” is not sufficient when the draft as written was payable to “James J. Manson.” Western Union Telegraph Co. v. Louissell, 11 Ala.App. 563, 66 So. 839 (1914), cert. denied, 191 Ala. 665, 67 So. 1019 (1915). However, since only reasonable accuracy is required, a check payable to “H. Orkand” was held to be covered by a stop order naming the payee as “Harold Orkand” in Levine v. Bank of United States, 132 Misc. 130, 229 N.Y.S. 108 (New York City Mun.Ct.1928). A notice not to pay a draft which gave no date and stated the amount to be “$15,000” when the actual amount was “$17,000” was held insufficient in A. Sidney Davison Coal Co. v. National Park Bank, 201 App.Div. 309, 194 N.Y.S. 220 (1922). However, a notice giving the correct date, number, and payee while misstating the amount was held sufficient in Kentucky-Farmers Bank v. Staton, 314 Ky. 313, 235 S.W.2d 767 (1951); cf. Elsie Rodriguez Fashions, Inc. v. Chase Manhattan Bank, 23 UCC Rep. 133 (N.Y.Sup.1978) (only $.10 difference in amount). A notice giving the proper cheek number but misstating the date, payee and amount was held insufficient in Mitchell v. Security Bank, 85 Misc. 360, 147 N.Y.S. 470 (App.T.1914), but a single digit mistake in the check number alone was held not to prevent notice from being adequate in Thomas v. Marine Midland Tinkers National Bank, 86 Misc.2d 284, 381 N.Y.S.2d 797 (New York City Civ.Ct.1976).

After consideration of the foregoing authorities and the circumstances in this case, we hold that the stop payment order did not describe the check to be stopped with sufficient accuracy so as to make First Alabama Bank liable for payment. Both the payee and the date were misstated, and there was no check number given. Nothing else was shown which would have given the bank knowledge that the check in question was the one to be stopped. We do not believe that the bank here was afforded “a reasonable opportunity to act” so that it should have found the check and stopped payment.

Ill

Frank Morris Buick

Dr. Sherrill contends that Frank Morris Pontiac-Buick-GMC, Inc. is obligated to return to him the sum of $4,860.61 allegedly paid by mistake. The trial court held that Morris was entitled to keep the $4,860.61 as payment in full for the Skylark, and further held that Morris had the duty to transfer title to Dr. Sherrill within a reasonable time.

In Wood Chevrolet Co. v. Bank of the Southeast, 352 So.2d 1350 (Ala.1977), a prior case involving the self-same UMA “fleet discount” operation, we held that retention of the Manufacturer’s Statement of Origin by the seller does not evidence a clear intention to retain title. Rather, we held that title passes when the car is delivered to the individual owners. Thus, Dr. Sherrill obtained title to the Skylark upon its delivery to him, and was under no obligation to pay $4,860.61 to Morris in order to receive title or retain possession.

The evidence reveals that Morris told Dr. Sherrill he had the option either to pay it $4,860.61, return the car or have the car taken from him through legal action. Dr. Sherrill paid under the mistaken belief that he was indebted to Morris for the price of the car and that he must pay Morris to retain possession and obtain title. In Wood Chevrolet Co. v. Bank of Southeast, supra, the dealer asserted that the individual owners were principals and UMA was agent, and because the principals retained the automobiles, they were liable for payment. We held that the individual owners did not exercise control over the dealings between UMA and the automobile dealer; UMA sought out the relationship with the car dealer, and the dealer looked to UMA for payment. The individual owner was held not liable for the debt owed by UMA to the dealer.

The principle of unjust enrichment permits recovery of money paid to the defendant by the plaintiff under mistake or fraud. Birmingham Broadcasting Co. v. Bell, 259 Ala. 656, 68 So.2d 314 (1953); Roney v. Commercial Union Fire Ins. Co., 225 Ala. 367, 143 So. 571 (1932). This is the essence of the theories of unjust enrichment or of money had and received. Foshee v. General Telephone Co. of Southeast, 295 Ala. 70, 322 So.2d 715 (1975). Moreover, one who receives payment made under mistake by the payor is not relieved of liability simply because the payor could have discovered the facts but was not diligent in doing so. Dudley v. Whatley, 244 Ala. 508, 14 So.2d 141 (1943). Dr. Sherrill, having paid under the mistaken belief, in fact and in law, that he was indebted to Morris, is entitled to the return of the $4,860.61 paid Morris.

Morris argues that Dr. Sherrill’s agreement to pay, in return for being permitted to keep the car, is a new contract binding the parties. We do not agree. In reality, Dr. Sherrill had both possession and title. Morris’ claim for payment is against UMA, not Dr. Sherrill. There was no consideration for Dr. Sherrill’s agreement to pay, and thus no contract.

For the foregoing reason, this cause is due to be reversed and remanded as to appellee Frank Morris Pontiac-Buick-GMC, Inc., but affirmed as to appellees Bank of the Southeast and First Alabama Bank.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

FAULKNER, ALMON and EMBRY, JJ., concur.

TORBERT, C. J., concurs specially.

TORBERT, Chief Justice

(concurring specially):

It is well settled that money voluntarily paid under a mistake of fact may be recovered, see, e. g., Citizens’ Bank of Fayette v. Blach & Sons, Inc., 228 Ala. 246, 153 So. 404 (1934); Jones v. Watkins, 1 Stew. 81 (Ala.1827), even where the party paying had means of ascertaining the real facts, Hinds v. Wiles, 12 Ala.App. 596, 68 So. 556 (1912). However, it is equally well settled that money voluntarily paid with full knowledge of the facts but by reason of mistake of law cannot be recovered. See Rice v. Tuscaloosa County, 242 Ala. 62, 4 So.2d 497 (1941); Hinds v. Wiles, supra.

In the instant case, Dr. Sherrill made payment under a mistake of fact as well as law. Dr. Sherrill was under the mistaken belief that Bank of the Southeast would not demand payment from him, and that since Morris had not been paid, he did not owe Bank of the Southeast. Dr, Sherrill believed that title to the car was in Morris instead of in him, as was actually the case, so that Morris was the proper party to receive payment. When there is a mistake as to both fact and law, the courts allow the party to recover the money paid. Hemphill v. Moody, 64 Ala. 468 (1879). “But, in civil proceedings, this rule [as to mistake of law], owing to its hardship, has been treated as one stricti juris; and if there was intermixed with the mistake of law, any mistake of fact, courts have willingly seized upon it, and made it the ground of relief.” Id. at 473-74. Accordingly, Dr. Sherrill is entitled to the return of the $4,860.61 paid to Morris.


author: FAULKNER, Justice. FAULKNER, Justice.

text:
    T. WHITFIELD, alias Eddie Lee Whitfield v. Gladys SANDERS et al.
    77-395.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    As Corrected On Denial of Rehearing Jan. 19, 1979.
    Charles A. J. Beavers, Jr., William L. Thuston, Birmingham, for appellant.
    James A. Turner, of Turner, Turner & Turner, Tuscaloosa, for appellees.
   FAULKNER, Justice.

This is an appeal from a denial of a motion to set aside a decree authorizing the sale of land. We reverse.

The parties are all heirs at law of Mose Lewis, deceased, who had owned an 80 acre parcel of land in Tuscaloosa County. Thirty-nine parties apparently had an interest in this land at the time of its sale. On April 24,1975, a Bill of Complaint for the Sale for Division of Lands was filed by Gladys Sanders, Steve Newman, et al., alleging that the real property could not be equitably divided in kind among the numerous heirs at law and requesting that the property be sold at auction. The complaint named the appellant by his nickname, V. Whitfield, as a defendant, alleging that his residence was unknown and not ascertainable after diligent inquiry. Whitfield and other unknown defendants were subsequently served by publication in Tuscaloosa County. On July 17, a default judgment was entered against Whitfield, et al., and the property was sold on October 14, 1975, for $18,000. A check for Whitfield’s share of the proceeds (the largest portion of any of the heirs) was left for him at the Tuscaloosa County courthouse. Whitfield picked up the check on an unspecified date but has never cashed it.

On September 28, 1976, Whitfield filed a Motion to Set Aside Decree Authorizing Sale of Land. As a basis for relief he asserted that Steve Newman and one other plaintiff were friends of his who knew his address in California and were in regular contact with him over family matters. Specifically, Whitfield claimed that letters had been forwarded to him at his correct address by Steve Newman’s wife, Alberta, and that Whitfield had phoned the New-mans and had received a call from Steve. In addition, Steve Newman and another plaintiff knew 'Whitfield’s mother, Minnie Cook, who had his address, and Newman saw her at least once or twice a week. Nevertheless, they did not contact her in an attempt to determine Whitfield’s whereabouts so he could be notified of the suit. Whitfield’s motion concluded by alleging that the court was without jurisdiction to render a default judgment against him, a fraud had been perpetrated upon the court because the plaintiffs did not diligently seek Whitfield’s address as stated in their affidavit, and the judgment violated Whitfield’s right to due process of law under the 14th Amendment.

A hearing was held on Whitfield’s motion where evidence was taken ore tenus. The trial court denied the motion without detailing its findings of fact. The principal witnesses were Whitfield’s mother, Minnie Cook, and Steve, and Alberta Newman. After a thorough review of the record, we hold that the evidence is insufficient to show that any effort, diligent or otherwise, was made to ascertain Whitfield’s address. The testimony was not in any way contradicted. Newman’s wife, Alberta, had Whitfield’s correct home address in California. Whitfield’s mother, who could have been easily contacted by Newman, by his own admission, had Whitfield’s correct business address in California. In response to the question, “Could you have found out how to get in touch with him if somebody had asked you?” Newman himself testified, “I would have tried. I would have asked his mother if anybody asked me but didn’t nobody ask me.” (Emphasis supplied.) Apparently Newman’s attorney failed to ask him if it would be possible to obtain Whitfield’s address. Consequently, the affidavit of Newman’s attorney which stated, “plaintiffs have been unable to ascertain [Whitfield’s residence and address] after diligent inquiry” was simply unwarranted.

Under the facts of this case, notice by publication violated the well-known due process standards outlined in Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In that case Mr. Justice Jackson stated:

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . The notice must be of such nature as reasonably to convey the required information, . and it must afford a reasonable time for those interested to make their appearance. * * *
“[W]hen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339 U.S. at 314-315, 70 S.Ct. at 657.

Since Whitfield could have easily been served by certified mail, notice by publication was insufficient to obtain jurisdiction and the default judgment against Whitfield is void.

Appellees assert that our recent case of Wynn v. Smith, 357 So.2d 973 (Ala.1978) is controlling here. We disagree for two reasons. First, the constitutional issue, that the judgment was void as entered in violation of constitutionally mandated notice standards, was not raised in that appeal. Second, cases in which affidavits of diligent inquiry are attacked before a trial court are classic situations for the application of the ore tenus principle. Although it is not explicitly stated in Wynn the ore tenus rule in fact controlled the outcome of that case. There the record clearly showed that appellant’s primary contention, that the affidavit failed to allege a diligent inquiry, was erroneous. Under the ore tenus rule, there was sufficient evidence of a diligent inquiry in that case to support the trial court’s findings. But here, as we noted above, the evidence is uncontroverted that no diligent inquiry was made into Whitfield’s address. Newman’s own testimony showed that he could have gotten Whitfield’s address if he had been asked to, but he was not asked. Certainly, assertions in an affidavit could be controverted by overwhelming evidence that they were unsupported by the facts. Here, even under the strict standard of appellate review embodied in the ore tenus rule, the implied findings of the trial court cannot be affirmed, as they were “plainly and palpably erroneous.”

Appellees also contend that the motion was not brought within the time required by Rule 60(b), ARCP. That rule establishes a four month time limit for relief from a judgment entered through mistake, by fraud, or for several other reasons. But a motion for relief from this judgment must be brought “within a reasonable time.” There is nothing in the record which establishes that Whitfield delayed filing his motion to set aside the decree once he learned that the property had been sold. Consequently, the motion should have been granted.

REVERSED AND REMANDED.

BLOODWORTH, ALMON, SHORES and EMBRY, JJ., concur.

ON REHEARING

FAULKNER, Justice.

The opinion is corrected, and application for rehearing overruled.

TORBERT, C. J., and BLOODWORTH, ALMON and EMBRY, JJ., concur.


author: EMBRY, Justice.

text:
    James A. HAYLES v. Jane Hope JOHNSON et al. Lisa Marie HAYLES, etc. v. Jane Hope JOHNSON et al.
    77-563-77-563-A.
    Supreme Court of Alabama.
    Dec. 1, 1978.
    Rehearing Denied Jan. 19, 1979.

      J. Milton Coxwell, Jr. of Coxwell & Cox-well, Monroeville, for appellants.
    Windell C. Owens, Monroeville, for appel-lees.
   EMBRY, Justice.

Lisa Marie Hayles, a minor, by her father and next friend James A. Hayles, and James A. Hayles, each filed suit against Jane Hope Johnson and John B. Johnson. Lisa sought damages for personal injuries received when she was struck by an automobile driven by defendant Jane Hope Johnson. James A. Hayles sought damages for medical expenses he incurred for treatment of Lisa’s injuries. John B. Johnson was named a defendant in each case on the theory that Jane Hope Johnson was his agent.

The actions were consolidated for trial. At the close of the plaintiffs’ cases, defendants moved for directed verdicts, the trial court reserved ruling, and at the conclusion of all the evidence granted them. Plaintiffs filed motions for new trial which were denied and this appeal ensued.

There was no evidence, or allowable inferences from it, to indicate Jane Johnson was driving in an unsafe manner or without the due care for minor pedestrians as required by Tit. 36, § 58(17), Code 1940 (§ 32-5-273, Code 1975). To the contrary, the evidence showed Jane Johnson was driving five to ten miles an hour when the six year old appellant darted into the road without warning, struck the side of the Johnson car and was injured. In such a case we are unable to say Jane Johnson did anything a reasonably prudent person would not do under the circumstances nor that she failed to do what a reasonably prudent person would have done under the circumstances. See Howell v. Roueche, 263 Ala. 83, 81 So.2d 297 (1955).

Because there was not a scintilla of evidence showing negligence, the judgment must be, and is hereby, affirmed.

AFFIRMED.

TORBERT, C. J., and BLOODWORTH, FAULKNER and ALMON, JJ., concur.