author: LEE, Justice, SMITH, Presiding Justice,

text:
    NATIONAL MORTGAGE COMPANY v. Margaret A. WILLIAMS.
    No. 49591.
    Supreme Court of Mississippi.
    April 19, 1978.
    Rehearing Denied May 10, 1978.
    Roy D. Powell, Robert W. King, Alex A. Alston, Jr., Jackson, for appellant.
    Michael J. Malouf, Jackson, for appellee.
    Before SMITH, BROOM and LEE, JJ.
   LEE, Justice,

for the Court:

National Mortgage Company has appealed from a judgment entered against it by the Circuit Court of Hinds County at the suit of Margaret A. Williams in the sum of three thousand seven hundred eighty-five dollars ($3,785) actual damages and twenty thousand dollars ($20,000) punitive damages. Williams’ suit was predicated upon alleged wrongful foreclosures of a mortgage.

National assigns the following errors in the trial below:

(1) The foreclosure(s) by the appellant were valid foreclosure(s) and were commenced and completed at a time when the appellee was delinquent in the installment payments and after she had failed to tender the delinquency and the circuit court erred in submitting the case to the jury on any issue.

(2) The circuit court committed reversible error in overruling appellant’s motion for a directed verdict when appellee had rested her case and further committed reversible error when it refused to grant ap-pellee’s preemptory [sic] instruction after both parties had rested.

(3) The circuit court erred in submitting to the jury the issue of punitive damages inasmuch as appellant was within its legal right in commencing and concluding the foreclosure and no cause of action accrues when one does what he clearly has a legal right to do.

(4) The circuit court erred in admitting on behalf of appellee evidence of actual damages, including expenses of moving from the property in question, redeeming her property from the moving and storage company, and attorney’s fees incurred in defending the foreclosure.

PART I

Assigned Errors 1, 2 and 3 will be discussed under this Part I.

Williams purchased a house in Jackson for seventeen thousand three hundred dollars ($17,300). She executed a note secured by first mortgage or deed of trust on the property, payable in monthly installments of one hundred forty-seven dollars forty cents ($147.40). The loan was guaranteed by the Federal Housing Administration and subsidized under Section 235 of the Federal Housing Act so as to require Williams to pay eighty dollars seventy-one cents ($80.71) of the amount due each month, the Federal Housing Authority paying the remainder of sixty-six dollars sixty-nine cents ($66.69).

Payments began June 1, 1973, and the first several installments were duly paid.

On September 18, 1973 National notified Williams that the note and security instrument had been assigned to it. She was instructed to make future payments to National and was told that she would be credited with the payments she had made to the assignor.

Some time afterward a controversy arose between Williams and National as to the state of the account and the latter rejected and returned to Williams two (2) payments which had been mailed in by her, informing Williams that instead of two payments she owed four (4) payments at that time. Williams steadfastly maintained that the two payments, which she had sent in, made her account current but National continued to insist that she was in default. An offer by Williams to produce her receipts for the alleged missing payments was rejected with the statement from National that “they meant nothing.” She was told, moreover, that National would continue to refuse to accept payments unless and until the whole amount claimed by National was paid.

In this condition of stalemate, National began foreclosure proceedings, although Williams continued her attempts to explain and to show that she was not delinquent. National told her that to stop the foreclosure then in progress would cost her more than two thousand dollars ($2,000). At this point Williams offered to make the payments but declined to pay attorneys’ fees and publication costs demanded by National.

The foreclosure proceeded to sale and the property was purchased by National. Afterward, National brought suit in the county court against Williams for the purpose of dispossessing her. This suit then came to trial in due course but was dismissed by the court when it developed that at the time of the foreclosure Williams had not been delinquent in fact, but that the apparent delinquency resulted because National had failed to give her credit for payments which she had made to its assignor, the original owner and holder of the note and mortgage.

The general rule with reference to wrongful foreclosures is stated in 59 C.J.S. Mortgages § 491, at 774 (1949):

“A mortgagor is entitled to recover damages for a wrongful or fraudulent foreclosure of the mortgage, as where an unlawful foreclosure is attempted solely from a malicious desire to injure the mortgagor; or he may recover damages where the foreclosure is conducted negligently or in bad faith, to his detriment. . ."

The rule is stated also in 55 Am.Jur.2d Mortgages § 535, at 516-517 (1971):

“In general, the authorities support the rule that an action at law by the mortgagor against the mortgagee will lie to recover damages for a wrongful foreclosure — that is, a foreclosure without right, which would ordinarily be ineffective and invalid irrespective of the manner in which it is executed. Generally, in such circumstances, the mortgagor has the right to elect between (1) having the sale set aside and (2) recovering from the mortgagee the damages suffered as a result of the wrongful foreclosure.
Actions at law for damages for premature foreclosures have been sustained, particularly where a required demand of payment was not made to accelerate maturity, although there is authority to the effect that a right to maintain such an action may be lost by electing to proceed in equity for the return of the equity of redemption and obtaining a decree ordering restoration of the property.
There is authority to the effect that an action at law for damages lies for an improper execution of a rightful foreclosure. However, the contrary view, that an action at law does not lie for damages for an improper execution of a rightful foreclosure, has been taken, at least in the absence of a preconceived plan thereby to carry out a fraudulent purpose; the view is that the remedy, if any, is in equity.
Compensatory damages for wrongful foreclosure have been held to be the reasonable market value of the property on the date of foreclosure. Punitive damages have also been allowed where the foreclosure was found to have been pursued with malice.
The remedies in equity for wrongful, improper, or premature foreclosures are considered elsewhere.”

In Milner Hotels, Inc. v. Brent, 207 Miss. 892, 43 So.2d 654 (1949), the elements permitting punitive damages were stated as follows:

“The first assignment of error was to the effect that the appellee was entitled to only nominal damages and was not entitled to recover punitive damages. It is well established law in this state that the elements allowing punitive damages are: (1) a wrongful act, (2) intentionally performed, (3) gross disregard of rights, and (4) wilfullness.

This principle was clearly laid down in Illinois Central R. Co. v. Ramsay, 157 Miss. 83, 127 So. 725, 726, where the court said: ‘To authorize the infliction of punitive damages, the wrongful act complained of must either be intentional, or result from such gross disregard of the rights of the complaining party as amounts to willfulness on the part of the wrongdoer.’

In Hadad v. Lockeby, 176 Miss. 660, 169 So. 691, 693, the court said: ‘Punitive damages may be recovered, not only for a willful and intentional wrong, but for such gross and reckless negligence as is equivalent to such a wrong, since an act done in spirit of wantonness and recklessness is oftentimes just as harmful as if prompted by malice.’ ” 207 Miss. at 899, 43 So.2d at 655.

See also Lincoln Nat. Life Ins. Co. v. Crews, 341 So.2d 1321 (Miss.1977); Progressive Casualty Ins. Co. v. Keys, 317 So.2d 396 (Miss.1975).

In deciding whether a directed verdict should be granted, the trial judge is to look solely to the testimony on behalf of the party against whom a directed verdict is requested. He will take such testimony as true along with all reasonable inferences which can be drawn from that testimony which is favorable to that party, and, if it could support a verdict for such party, the directed verdict should not be given. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975); White v. Thomason, 310 So.2d 914 (Miss.1975); Williams v. Weeks, 268 So.2d 340 (Miss.1972).

On the first foreclosure there was a question for the jury on actual and punitive damages.

PART II

Assigned Errors 1, 2, 3 and 4 will be discussed under this Part II.

Williams was not delinquent at the time National declared her so, but National refused to accept any monthly installments until Williams again paid the February installment, which was not credited to her account through error of National and its assignor.. The monthly installments amounted to $147.40. Williams held an FHA Section 235 certification under which FHA paid $66.69 of each monthly installment and appellee paid the balance of $80.71. Prior to the first foreclosure on October 3, 1974, Williams was advised by National’s attorney that payment of more than $2,000 would be required to stop the foreclosure.

When the possessory action was heard on February 12, 1975, it was dismissed after the evidence indicated that appellee was not delinquent and that her February payment had not been credited. The record reflects that, upon dismissal of the suit, National’s attorney stated Williams may not have been delinquent then (at time of first foreclosure), but she is now (February 12, 1975), and on that very date National instituted the second foreclosure proceeding. Although National notified Williams on February 18, 1975, that she could pay the total delinquency, plus trustees’ fees and publication costs and stop the second foreclosure, no amounts of installments, trustees’ fees and publication costs were given to her. Neither was any accounting made to her nor any method of payment suggested. On that date, she was notified by appellant that her FHA 235 certification had expired, but that, if she mailed the reinstatement request promptly, it would be retroactive to the expiration date. This procedure drastically changed the amount required from Williams to bring the indebtedness current.

The financial plight Williams found herself to be in on February 12, 1975 resulted from the conduct of National and, in our opinion, it would be unconscionable to hold that, as a result of National’s misconduct, Williams was delinquent on her loan, and the second foreclosure of March 11, 1975, was valid.

In Johnson v. Gore, 224 Miss. 600, 80 So.2d 731 (1955), which involved foreclosure of a mortgage, this Court said:

“In view of these facts, it was Gore's duty to render to Johnson a substantially correct account of the indebtedness claimed to be due and owing to him before undertaking to declare the full amount of the land mortgage indebtedness due ten and one-half months prior to its due date; and this Gore failed to do. . When Gore elected to declare the full amount of the indebtedness due, because of the alleged defaults in the payment of interest and taxes, Johnson was entitled to know the amounts that were in arrears. And Gore was the only person who could furnish that information. While the record disclosed no actual fraud in Gore’s accounting, there were glaring defects in the account, and it was inequitable and unjust for Gore to attempt to declare the entire indebtedness due and payable ten and one-half months before its actual due date, because of default in the payment of interest and taxes, without furnishing Johnson a correct statement of the amount due so that he might know what amount he had to raise to prevent a foreclosure sale of his property.” 224 Miss. at 614, 80 So.2d at 736.

The Court further held in Johnson that equity will relieve the mortgagor from the consequence of a default if the mortgagee has done some act which makes it unconscionable for him to take advantage of it. Although Johnson v. Gore, supra, was tried in the chancery court, the same principle applies here.

Since the exact amounts to bring the indebtedness current were not given to ap-pellee, and probably were not known by either of the parties, and since there apparently would have been a dispute as to said amounts, the indebtedness was not fixed but was unliquidated and appellee could not have been in default on an unliquidated amount. Furthermore, it would have been vain thinking to expect appellee to tender an amount which was unknown to her.

In Cooley v. Stevens, 240 Miss. 581, 128 So.2d 124 (1961), the Court, quoting from McLain v. Meletio, 166 Miss. 1, 147 So. 878 (1933), said:

“The law does not require one to do a vain and useless thing. A formal tender is never required where it appears that the money if tendered would not have been received.” 240 Miss. at 592, 128 So.2d at 128.

The second foreclosure, which resulted from the misconduct of National, was just as wrongful and invalid as the first foreclosure and a jury question on actual and punitive damages was presented as to same.

National contends in its fourth assigned error that the court erred in admitting on behalf of appellee certain evidence of actual damages. We have carefully considered the record covering same, and there is no merit in such assignment.

For the reasons given, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C. J., SMITH and ROBERTSON, P. JJ., and SUGG, WALKER, BROOM and BOWLING, JJ., concur as to Part I.

PATTERSON, C. J., and SUGG, WALKER and BOWLING, JJ., concur as to Part II.

SMITH and ROBERTSON, P. JJ., and BROOM, J., dissent as to Part II.

COFER, J., took no part.

SMITH, Presiding Justice,

dissenting:

I respectfully dissent from the conclusion of the majority that the second foreclosure proceedings were wrongful because I am unable to agree with the majority’s analysis of that part of the case.

Apparently, the majority takes an unfavorable view of appellant’s conduct because its attorney, upon conclusion of the posses-sory action unfavorably to appellant, is quoted as having said: “If she was not in default then she is in default now,” or words to that effect. Also, there seems to be an implication of improper behavior because foreclosure proceedings were begun immediately with the first notice scheduled to appear one week thereafter.

Since the actions of appellant, both as to the first foreclosure, which proved to have been premature, as well as to the second proceedings, apparently are considered to have been tortuous, for which punitive damages are to be awarded, it should be recalled that the note and deed of trust were executed by appellee in favor of her contractors, and by them assigned to appellant. The error in failing to give appellee credit for the controversial payment was an error of the assignors and not of appellant. There is nothing in the circumstances to indicate malice or bad faith on the part of appellant even as to this situation, although I agree that the jury might have been justified in finding that appellant was negligent in failing to discover what had happened.

When it developed that the first foreclosure proceedings had been premature, because a payment on the debt had been made to appellant’s assignors before assignment to appellant, which assignors had failed to enter as a credit, several months had elapsed and appellee not only had made no effort to make payments on the debt but had allowed to lapse an arrangement with a governmental agency whereby the government undertook to pay the major portion of each installment.

This was an ordinary business transaction. Appellee was an adult, represented by counsel, who owed a debt, incurred in the ordinary way of business and secured by real estate. When the second foreclosure was begun, her counsel filed suit in the Chancery Court for an injunction to stay the proceedings, but voluntarily dismissed it for reasons of their own.

Attorneys for appellant wrote appellee’s attorney on February 12, 1975 as follows:

Dear Mr. Malouf:
Re: National Mortgage Company
and Margaret Ann Williams
Loan No. 044913
FHA No. 281-090453-235
Enclosed herewith is a copy of the Substituted Trustee’s Notice of Sale on the above matter. You will observe that publication is to commence Monday, February 17, and that the sale date has been set for Tuesday, March 11, 1975.
If Ms. Williams is interested in paying this account current, please contact me relative to the amount required to stop these foreclosure proceedings.

In response to this, no real effort, or any effort worthy of the name, was made by appellee to consult with appellant to find out what was due, and on February 18, 1975, appellant’s attorneys again wrote the attorneys for appellee as follows:

Re: National Mortgage Company
vs. Margaret Ann Williams
Dear Mr. Malouf:
Your files will show a new foreclosure was started in the above case on February 17th. I have advised and National Mortgage Company has agreed to give Miss Williams credit for the missing payment.
This will not cure the default in the other payments nor will it cure the default and her failure to return the 235 recertification package.
If she desires to keep the property in question, it will be necessary that she pay the total delinquency including Trustee’s Fees and publication expense. National Mortgage Company has mailed her a 235 recertification package and if this is returned promptly can reinstate her benefits effective to July, 1974 according to the information furnished to me.
I must emphasize however the need to attend to this matter promptly. If she has no plans for keeping the house, then, of course, all of this gesture is in vain. If she has not received the 235 recertification package by Friday of this week I would suggest you call me immediately.
Cordially yours,
Roy D. Powell

There is nothing in the record to indicate any real effort or desire on the part of appellee, (or even ability), to pay the amount due or to find out what it was. Although appellant, in its letters, made it clear that it was willing to assist appellee and aid her in obtaining reinstatement in the government program retroactively, it is clear that she chose to sit back and do nothing and to opt for a lawsuit instead.

The validity of the note and deed of trust is not challenged and this is not altered by the fact that a harsh or unfriendly motive is attributed to appellant in foreclosing at a time when appellee obviously was in default. The result of the conclusion reached by the majority appears to be that an error of appellant’s assignors in failing to credit appellee with one payment which had been made to them has relieved appellee of any further obligation to pay her debt and made wrongful the foreclosure of the deed of trust. I do not believe that it is the law in this state that a defaulting debtor after receiving two written communications from the creditor, both indicating a willingness and desire to assist the debtor in making the default good, may sit back and do absolutely nothing and say that the reason she did nothing was because she did not know how much she owed and in that way have her debt cancelled and her note and trust deed voided.

I am unable to discern anything in the case which supports a view that appellant acted maliciously in connection with what appears to have been the perfectly legitimate second foreclosure. In any event, appellant’s motive in exercising its legal right to collect its debt from a defaulting debtor and to foreclosure on the security is immaterial.

“The right to foreclose [a mortgage deed of trust under a power of sale] ordinarily is not affected by the motives of the mortgagee in seeking foreclosure, economic conditions, or by the fact that hardship will result from foreclosure.” 59 C.J.S. Mortgages § 500, p. 803.

The admission of evidence touching the second, and in my view, valid foreclosure, was highly prejudicial to the right of appellant to a fair trial and should not have been admitted, as it was irrelevant to the real issue in the case. In my humble opinion, the case should be reversed and remanded for a new trial on damages alone, the evidence being limited solely to damages resulting from the premature or first foreclosure.

ROBERTSON, P. J., and BROOM, J., join in this dissent.


source: Caselaw Access Project

author: WALKER, Justice,

license: Public Domain

text:
    Horace SHARPLIN v. STATE of Mississippi.
    No. 50420.
    Supreme Court of Mississippi.
    April 19, 1978.
    Rehearing Denied May 10, 1978.
    A. R. Wright, Jr., Morris C. Phillips, Jr., Carthage, for appellant.
    A. F. Summer, Atty. Gen., by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

This is an appeal from a conviction of manslaughter returned after a jury trial in the Circuit Court of Leake County, Mississippi. Appellant was sentenced to fifteen years in the custody of the Mississippi Department of Corrections]

Appellant first contends that the trial court committed reversible error in overruling his motion for a special venire. In order to understand appellant’s argument here, it must be noted that this is the second time this case has come before us. Appellant was originally indicted for the murder of his estranged wife and convicted of manslaughter, but the original conviction was reversed because of the participation, as a prosecutor, of the county attorney, Vernon R. Cotton, who had handled appellant’s divorce case. In the interim between the two trials, a second material development occurred, Marcus Gordon, the district attorney who was the prosecutor at the first trial became a circuit judge for the district which encompasses Leake County. Because of Judge Gordon’s previous involvement in the case as district attorney, he was disqualified from participating in the retrial necessitating the appointment of a special judge.

On the first day of the April 1977 Term of court, counsel for appellant filed a motion for a special venire pursuant to Mississippi Code Annotated section 13-5-77 (1972).

On May 3, 1977, at 1:15 p. m., the case was called for trial by Judge Gordon. The state announced ready and counsel for appellant asked to be heard on the motion for a special venire. At this point, Judge Gordon made the following statement:

I, as the Circuit Judge, appeared here on Thursday two weeks before Court opened here for the purpose of setting the Criminal and Civil Docket. On that date this case was set for trial on yesterday, May 2nd, at 9:00 o’clock a. m. On yesterday the case was called, no Special Judge having been appointed. . The case was then reset for trial today at 1:00 o’clock.
It is now being made known to the Court for the first time that a motion was filed for a special venire, and it was not made known to the Court until just a few minutes ago that this motion had been filed. Several times during Court last week and even as well as this morning, it was announced that Mr.- Peters had been appointed as the prosecutor in this case. At this time, 1:15 p. m., the Court does not know who will be appointed by the Governor as the Special Judge in this case, and I feel that the Special Judge should rule on whether or not this motion should be sustained. However, I feel that he should have the benefit of what this Court knows and what this Cpurt has considered during this term of Court concerning this motion. Let the record further show that all witnesses were subpoenaed to be here as to 9:00 o’clock a. m. yesterday. The witnesses were here, some from out of state, and then we recessed to return today at 1:00 o’clock. Let the record show that all witnesses are in the Court at this time.

Governor Finch appointed the Honorable Harold Davidson to sit as Special Judge for the trial of this cause on May 3, 1977, and at 2:00 p. m. on that day, Judge Davidson assumed the bench and overruled the motion for a special venire on the grounds that the motion was not timely called to the attention of the court and to grant it would cause those witnesses who were from out-of-state unreasonable expense and inconvenience because the start of the trial would probably have been delayed until the following week.

In Porter v. State, 193 Miss. 774, 10 So.2d 377 (1942), the Court held:

The purpose of the statute will be accomplished by holding, as the practice is, that a request for a special venire must be made when the court ascertains and announces that the case is ready for trial. When the appellant’s counsel announced that he was ready for trial of the case and the court also announced that it was ready to proceed therewith, he should have requested the special venire, if he then desired it, or obtained permission from the court to request it at a later date. . . . When the court announced ready for trial, the request for a special venire became due without reference to the time then set for trial. It may be, as to which we express no opinion, that if the request is thereafter made in ample time for the special venire to be drawn, summoned, and to appear on the day set for the trial, the request therefor should be granted. (193 Miss. at 777-78, 10 So.2d at 378).

In the case at bar, it appears from the statement of Judge Gordon, which is set forth above, that the court announced approximately two weeks prior to the first day of the April 1977 Term of court (at the setting of the docket) that the case was ready for trial. Yet, the motion for a special venire was not filed until April 25, the first day of the April 1977 Term and was not called to the court’s attention until May 3, 1977, the day of trial. Therefore, the motion for a special venire was not timely filed under the rule announced in Porter v. State, supra.

Appellant argues, in substance, that this case comes within the exception noted by the Court in Porter for motions which are filed in ample time for the special venire to be drawn, summoned and to appear on the day set for trial. The motion was originally filed on April 25, 1977, the first day of the term, and the trial was set to begin on May 2, 1977.

We do not think that the contention is well taken. It appears from Judge Gordon’s statement that although the motion was filed on April 25, 1977, it was not brought to his attention until just before the case was called for trial. We have previously held that it is incumbent upon the party filing a motion to follow up that action by bringing it to the attention of the judge and by requesting a hearing upon it. Dyer v. State, 300 So.2d 788 (Miss.1974). Appellant argues that this rule should not apply here because Judge Gordon was disqualified from presiding in this case and the identity of the special judge was not known until May 3, 1977, and, therefore, there was no judge to whom the motion could have been presented before May 3, 1977. There is no merit to this contention as the drawing of a special venire is purely a ministerial act to be performed by the circuit judge, requiring no discretion except as to the number of prospective jurors to be drawn, and no decision making process. A circuit judge is therefore not disqualified from drawing a special venire even though he may be disqualified from presiding over the trial of the case in which the special venire is drawn.

We have considered the remaining assignments of error and find them to be wholly without merit.

The judgment of the lower court is therefore affirmed.

AFFIRMED.

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

LEE, J., took no part.


text:
    Marvella BOLTON, Robert Kelly, Gilbert Kelly, and Lue Jean Webb v. Lizzie Kelly TODD et al.
    No. 50251.
    Supreme Court of Mississippi.
    April 26, 1978.
    Charles H. Reid, Hattiesburg, for appellants.
    Andrew M. Gambrell, Hattiesburg, for appellees.
    Before WALKER, BOWLING and COF-ER, JJ., and LEON E. HANNAFORD, Commissioner.
   AFFIRMED.


text:
    Wilber Lawrence HARPER v. Helen Lacey HARPER.
    No. 50236.
    Supreme Court of Mississippi.
    April 26, 1978.
    Edward L. Cates, John C. Underwood, Jr., Earl R. Cruthirds, Jackson, for appellant.
    Brown & Stanfield, Percy Stanfield, Jr., Jackson, for appellee.
    Before SUGG, WALKER and COFER, JJ., and LEON E. HANNAFORD, Commissioner.
   AFFIRMED.


text:
    Charles VEAL v. STATE of Mississippi.
    No. 50426.
    Supreme Court of Mississippi.
    April 26, 1978.
    Harry L. Kelley, M. Charles May, Jackson, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SMITH, P. J., LEE and COFER, JJ., and WILLIAM R. LAMB, Commissioner.
   AFFIRMED.

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


author: COFER, Justice,

text:
    Alton SANDERS and Jerry Thrasher v. STATE of Mississippi.
    No. 50414.
    Supreme Court of Mississippi.
    April 26, 1978.

      Harry L. Kelley, Jackson, Jeannene T. Pacific, Ellisville, John R. Poole, Jackson, for appellants.
    A. F. Summer, Atty. Gen. by Marvin L. White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and COFER, JJ.
   COFER, Justice,

for the Court:

Appellants Alton Sanders and Jerry Thrasher were indicted in the Circuit Court of the Second Judicial District of Jones County on a charge of wilfully, feloniously, fraudulently and falsely uttering and publishing as true to Curtis Rogers and Roger Knight a certain forged and counterfeit writing — namely, a check which was made a part of the indictment. The purported check is in the amount of $231.37. They were tried on the indictment at the March, 1977, term of court and found guilty. Sanders and Thrasher were sentenced to serve fifteen and twelve years in the custody of the State Department of Corrections, respectively. Both defendants have appealed.

Of several assignments of error in the trial, they argue only two: First, that the court erred in overruling their demurrer to the indictment; and second, that the jury’s verdict was against the overwhelming weight of the evidence.

Noticing the attack on the insufficiency of the indictment, the indictment charges violation of Mississippi Code 1972 Annotated, Section 97-21-59, which provides:

Every person who shall be convicted of having uttered or published as true, and with intent to defraud, any forged, altered, or counterfeit instrument, or any counterfeit gold or silver coin, the forgery, altering, or counterfeiting of which is declared by the provisions of this chapter to be an offense, knowing such instrument or coin to be forged, altered, or counterfeited, shall suffer the punishment herein provided for forgery. ■

We upheld as sufficient an indictment in Sanders v. State, 219 So.2d 913 (Miss.1969), which was very similar to the one here that likewise contains all of the elements necessary to charge the offense.

The state adduced evidence that appellant Sanders, at about 7:30 p. m. on September 16, 1976, took the check, set out in the indictment and appearing in evidence, to Roger Knight, at the A & P Food Store in Laurel where Knight was employed and wanting to cash the check, handed it to Knight. Knight declined to cash it telling Sanders that it was an out-of-town counter check and that he could not cash it. The witness identified Sanders at the trial. Knight called Curtis Rogers, the co-manager of the store, at the insistence of Sanders that he contact someone in higher authority than Knight. Sanders represented to both Knight and Rogers that the check was good and legitimate. Rogers looked at the check and told Sanders he could not cash it because it was the company’s policy not to cash out-of-town checks. Sanders insisted that it was a good check, and on request produced as identification a Disabled American Veterans life membership card bearing the name of “Jones Massena F.,” the same name appearing on the check he was undertaking to cash. Rogers, however, declined to cash the check in spite of Sanders’ insistence.

Observing Sanders to be perturbed as he left the store, Rogers got into a vehicle and followed him to see where he was parked and what kind of car he was driving. He noted Sanders’ vehicle to be a blue and white Buick or Cadillac with an Alabama tag. It was parked in the store parking lot. Another man who was in the driver’s seat got out of the car and went around to the passenger side. Then Sanders got into the driver’s seat and he and the passenger, whom the witness identified in the courtroom as appellant Thrasher, drove across the parking lot toward another store.

Report was made by Rogers to the Laurel Police Department to see if that department had anything on the Alabama tag. He also gave them information regarding Sanders’ effort to cash the check. This information was passed to officers on patrol duty, who later received another call telling them to go to an interstate highway intersection where a vehicle was parked to the side of one of the lanes with an occupant who was apparently female, and possibly dead. The car was found to be a white over blue Cadillac, with a Yazoo County, Mississippi, tag which was not securely fastened. The occupant was a man with blood-shot eyes, who, when asked to get out of the car and go to the back of it, was staggering, had slurred speech, and, according to the officers, smelled of intoxicating beverages. They asked for identification, and he produced a veterans’ identification card with the name “Massena F. Jones” on it. The man also produced an application for renewal of Alabama driver’s license, made out in the name of “Massena F. Jones,” with that same name appearing in writing on the signature line of the card. He did not have a drivers’ license.

He was put under arrest for public drunkenness, and the tag was by teletype found to have been issued to appellant Thrasher’s wife. Sanders said appellant Thrasher had gone to get some gasoline. Thrasher presently returned with gasoline and identified himself to the officer as Mr. Thrasher, whereupon the officers told him Sanders was under arrest, told him about the A & P incident, and asked him if he would go with them to the police department. He said that he would. One officer drove the Thrasher vehicle and Sanders and Thrasher were driven in the patrol car, during which journey Sanders “stuffed” something behind himself on his right side which later proved to be a check and some torn-up papers. In an interview with Captain Segrest of the Laurel Police Department, Sanders told him that his name was Sanders rather than “Massena F. Jones.”

Approximately one hour elapsed between the time the information to the officer as to the A & P incident, and that concerning the vehicle parked at the intersection of the interstate highway were received.

Officer Little did not know upon looking at the check, whether it was real, or a forgery, or fictitious. Furthermore, he did not know who Massena Jones was, and admitted that he might be in Laurel or Hat-tiesburg or elsewhere, as far as he knew.

Thrasher told the officers he was Donald Thrasher and that the car belonged to his wife.

Officer Hill did not know who Massena Jones was, or whether there was such a person. He could not say by looking at the check whether it was genuine, or false, or fictitious.

Frank Simpson, Jr., vice-president of the bank, testifying as to the names appearing on the check, stated that there was no such account in his bank, and that there never had been.

He knew of a man named Massena Jones and had heard of him, but did not know if he knew him. He said that the check was false and there was not to his knowledge an account by “Trans-Delta” whose stamp appears at the right bottom of the face of the check.

The check is signed by Abraham Gass or Goss, and such person had no account in the bank.

In Keyes v. State, 166 Miss. 316, 148 So. 361 (1933), we had before us a ten dollar bill which had been “raised” and a person accused of passing it in violation of the statute here [then Section 949, Code of 1930]. In it, citing 26 C.J., page 947, Section 144, we said:

On a trial under this statute, it is necessary to prove knowledge on the part of the accused.
This evidence may, of course, be supplied by circumstances as well as by positive proof, and the usual rule is that it is proven by circumstances. It is usually proven by showing that the accused had in his possession other bills of like tenor which were forged, or that he had represented himself to be the payee named in the forged instrument, when, in truth and in fact, he was not the actual payee. (Emphasis added). (166 Miss. at 321, 148 So. at 362).

While appellant Sanders was the active person in confronting the A & P operators, the record amply shows the criminal participation of appellant Thrasher in the commission of the crime charged.

The indictment sufficiently charges the offense of uttering the check, and from the uncontradicted proof, the jury was well warranted in finding that both appellants were guilty as charged, and we find no error in its doing so.

The case is, therefore, affirmed.

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    John W. McGOWAN v. James E. McCANN.
    No. 50203.
    Supreme Court of Mississippi.
    April 26, 1978.

      David K. McGowan, Jackson, for appellant.
    Adams, Forman, Truly, Ward, Smith & Bramlette, Everette Truly, R. Kent Hudson, Natchez, for appellee.
    Before SMITH, P. J., and LEE and COF-ER, JJ.
   SMITH, Presiding Justice,

for the Court:

The litigation, out of which this appeal arose, was begun by appellant, John W. McGowan, by the filing of a bill of complaint in the Chancery Court of Adams County, praying that a prohibitory injunction issue, restraining James McCann, ap-pellee, from continuing to dig, construct, enlarge or change a drainage ditch paralleling a road which provided access to oil drilling operations being conducted by McGowan, and that a mandatory injunction issue, requiring McCann to fill-in that portion of the ditch already dug.

McGowan was the owner, by assignment from Humble Oil and Refining Company, of certain oil, gas and mineral leasehold interests in land in Adams County, sometimes referred to as the Norman-Breaux “Swamp.” An easement, also owned by Humble, granting it the right to build and maintain an access road for use in servicing oil wells located on the land, was also assigned to and is owned by McGowan. The land itself, encumbered by the leases and subject to the easement, is owned by appel-lee, James McCann. This land is subject to flooding during a considerable portion of the year; for example, in 1973 the flood waters remained upon the land for as long as 7 months. In times of flood, the road in question sometimes is also flooded.

The road is of sand, gravel and dirt. It is McGowan’s only means of access to the wells and is essential to their operation and to their maintenance and repair. Considerable sums of money have been spent by McGowan in constructing and maintaining the road, and its maintenance is a continuing and substantial expense.

McCann purchased the land for farming purposes. At the time of the trial McCann had cleared approximately 7,000 acres and, according to the testimony, had invested some 5 and xk million dollars in the project. The present controversy arose when McCann, in furtherance of his plan to use the land for farming, began constructing or cleaning out a drainage ditch which roughly paralleled McGowan’s service road. A ditch following, in the main, the route of the ditch being worked on by McCann, has existed from the time the road was built. The depth of the original ditch is in dispute. Testimony offered by McGowan tends to show that it was no more than the result of the scooping up of earth for use in building up the road, and thus was only a shallow ditch, with gradually sloping sides. Testimony offered by McCann differs with this as far as the nature and depth of the old or original ditch is concerned. McCann and his witnesses describe the old ditch as having been much deeper, and McCann’s activities in digging which are sought to be enjoined by McGowan are described as having been no more than a cleaning out of the original ditch which had, over the years, become “silted up.”

The ditch which will result from McCann’s work will have banks with a 1-1 slope, and apparently will vary in depth from 8 to 12 feet deep. An engineer, testifying for McGowan, said that the original ditch had been IV2 feet deep and that the ditch resulting from McCann’s work was about 12 feet deep. In his opinion the “new ditch”, with its 1-1 slope, would cause the road to cave off into it within 5 years. He was of the further opinion that in constructing a ditch of that size its banks should not slope more steeply than 4-1. He also considered that McCann’s work had created a safety hazard for traffic on the road. McGowan also offered a former field superintendent of Humble Oil and Refining Company. He was allowed to give an opinion that the new ditch, because of depth and slope, would cause the crown of the road and the gravel to wash away. He testified that the new ditch was about 3 feet from the road with a 1-1 slope and said that it should be 50 feet from the road with a 4-1 slope. He also said that the new ditch made the road unsafe.

Another witness for McGowan, who was engaged in the earth moving and road building business, gave it as his opinion that a ditch the size of the new ditch, with a 1-1 slope, would eventually “get the road.” The owner of a firm known as Engineer Laboratories, took soil samples of the road and ditch through one of his employees. The witness testified that the material thus obtained was predominantly clay and that clay holds moisture well. But, the witness said, the clay in question was of “high” plasticity. He stated that “high” plasticity clay will erode easier than clay of “low” plasticity. He was allowed to give a “recommendation” that the ditch should be dug with a 4-1 slope.

Complainant-appellant himself testified that, in his opinion, the new ditch would cause the road to “slough off” into the ditch. He said that he would be willing to pay the cost of backfilling that part of the ditch already dug. He admitted that if the road caved it could be repaired but asserted that the cost in time and money would be prohibitive. He also said that the road in question provides the only means of access to the producing wells on the land.

The testimony for McCann was to the effect that there was little difference in depth between the original ditch and the new ditch. A witness who had hunted and fished on the land for some 15 years testified to that effect and that the work being done by McCann was a “clean out of the old ditch necessitated from the flood waters.”

Another witness for McCann testified that he also had hunted and fished on the land and had been familiar with the old ditch and had seen the new ditch, and said that the new ditch did not differ significantly from the old ditch. He also testified that the original ditch had had very steep banks similar to those of the new ditch and that he had not observed any “sloughing.”

A third witness testified that he too had known the land well since 1946, and was very familiar with the ditch and road in question. He testified that as far as depth was concerned there was little difference between the old ditch and the new ditch.

A professional engineer, testifying as a witness for McCann, said that he had made studies with respect to the present condition of the ditch and road. He said that the new ditch is from 4 to 8 feet deep. Photographs of the ditch and road were introduced. This engineer testified that the ditch is being constructed on a 1-1 slope but that this will not cause an erosion of the road because the land through which it runs is flat and the velocity of water which the ditch carries is low. He said that the ditch is from 3 to 12 feet distant from the road and that this distance is sufficient, the witness saying that many of the roads in the area were also built on a 1-1 slope and were holding well.

McCann himself testified that he had dug and was digging the ditch out to a depth of approximately 8 feet with a 1-1 scope. He said that this would not cause the road to cave in or slough off primarily because most of the surface water would flow into Cypress Bayou rather than into the ditch. He stated that he planned to put in 4 culverts under the road, at his own expense, to help with the drainage. He said that he had already cleared 7,000 acres and had invested 5 and million dollars in preparing the land for farming. He said that he was willing to dig the ditch a little further away from the road, beginning, of course, at the point to which he had already constructed it. He testified that to go back and start over with a new ditch further from the road would be very expensive.

At the conclusion of the trial, the chancellor entered a decree dissolving a temporary injunction previously issued, and denied both the prohibitory injunction sought by McGowan to stop the work and the mandatory injunction which would have required McCann to backfill that part of the ditch already dug.

On appeal, McGowan seeks reversal the chancellor’s decree upon the following grounds: of

(1) The chancellor manifestly erred in dissolving the temporary injunction and in refusing to issue a permanent prohibitory injunction, the result of which allowed the appellee to continue digging the ditch which will cause irreparable damage to “Oil Well Road.”

(2) The chancellor committed reversible error in overruling appellant’s motion to vacate the final decree and in denying appellant’s petition for a rehearing.

In declining to grant the injunction • sought by McGowan the chancellor made the following findings, which he incorporated in the final decree:

The Court finds that there is a reasonable possibility, but not a probability, that the ditch dug and deepened along the south side of the road maintained by Complainant will damage the road, but not a probability that it will cause irreparable damage and the Court is under the opinion that an Injunction against the Defendant should not be continued in effect and made permanent based on a reasonable possibility only.
The Temporary Injunction heretofore issued in this cause is hereby dissolved, and all matters raised in the Bill of Complaint on which it was issued are hereby adjudicated on the merits in favor the Defendant.

In Brooks v. City of Jackson, 211 Miss. 246, 51 So.2d 274 (1951) this Court said:

It is true, of course, that courts of equity do not interfere to accommodate mere apprehensions of injury, and it is only where the injury is substantial and there is reasonable probability that it will occur that the remedy by injunction is available. It is likewise true, however, that the remedy by injunction is preventive in its nature, and that it is not necessary to wait for the actual occurrence of the injury, since, if this were required, the purpose for which the relief is sought would, in most cases, be defeated.

(211 Miss. at 254, 51 So.2d at 277).

See also Erwin v. Mississippi State Highway Commission, 213 Miss. 885, 58 So.2d 52 (Miss.1952) and 43 C.J.S. Injunctions § 21 (1954).

The following statement appears in 42 Am.Jur.2d Injunctions, section 31 (1968):

Courts cannot determine the rights of parties in advance of an actual existing controversy concerning them, and the power to grant injunctive relief is never exercised to allay mere apprehension of injury, or against something merely feared as liable to occur at some indefinite time in the future. The injury must be real, not imaginary. It must appear to the satisfaction of the court that the apprehension is well grounded, and that there is a reasonable probability that a real injury, for which there is no adequate remedy at law, will occur if the injunction is not granted. Where the danger is apparent and real, as distinguished from an imaginary fear of injury, injunctive relief may be warranted. The court ought not to interfere, however, where the injury apprehended is of a character to justify conflicting opinions as to whether it will in fact ever be realized. .

The testimony before the chancellor was conflicting (1) upon the question of the depth, dimensions and other characteristics of the ditch being dug out by McCann; (2) and as to the effect the digging out of the ditch would or would not have upon the road. These and all factual issues were for determination by the chancellor as trier of facts.

In Laher Spring And Electric Car Corp. v. Breckenridge, 221 So.2d 718 (Miss.1969), the rule is stated thus:

The findings of facts of the chancellor where the testimony is in conflict will not be disturbed on appeal unless manifestly wrong.
(221 So.2d at 721).

And in Allen v. Thompson, 248 Miss. 544, 158 So.2d 503 (1963), this Court said:

It is the uniform rule that the chancellor’s finding on the facts is reviewable on appeal only when manifestly wrong, and when two or more reasonable inferences are deducible from the facts, the inference drawn and adopted by the chancellor will control on appeal. This rule has its foundation not only in the imperative operation of the constitutional ordinances mentioned; it has a further control and reason in this: the opportunities afforded to the trial court are far better for arriving at correct conclusions and findings from all of the questions of fact. Of this matter our Supreme Court has said: “ ‘Here we have nothing but the naked record before us; there, in most cases, the parties themselves are in the presence of the court and testifying. The manner of testifying, and their appearance upon the witness stand, and many other things, are influential in determining the triers of fact;’ or as said in another case: The decision of the chancellor where the evidence is conflicting will not be disturbed on appeal, since he is better able to determine the truth of the matter than the appellate court. And, this rule still holds true, although incompetent evidence has been admitted, if nevertheless there is enough competent evidence to sustain the decree.” Griffith, Miss. Chancery Practice, 2nd ed. 1950, § 674.
(248 Miss. at 556-557, 158 So.2d at 508).

See also McNair v. Capital Electric Power Association, 324 So.2d 234 (Miss.1975); Boatright v. Horton, 233 Miss. 444, 102 So.2d 373 (1958); Jones v. Jones, 227 Miss. 1, 85 So.2d 580 (1956).

We are unable to say that the chancellor was manifestly wrong in finding from the evidence which he had before him that, while there was a possibility that injury might result to the road from McCann’s work on the ditch, there was no reasonable probability that such damage would occur. The decree appealed from, therefore, must be affirmed.

We have also concluded that the contention of appellant that the chancellor erred in denying his motion to vacate the final decree and to grant a rehearing is without merit. The final decree in the case was entered October 29, 1976, and filed for record November 1, 1976. On November 8, 1976 appellant’s petition for an appeal to this Court was granted and an order entered granting the appeal, setting the amount of bond, and a notice to the court reporter to transcribe his notes was filed. On November 9, 1976, the appeal bond was filed by appellant and approved and thereupon the chancery court lost jurisdiction of the case, jurisdiction having become vested in this Court. See Dunavant Enterprises, Incorporated v. Ford, 294 So.2d 788 (Miss.1974).

Appellee’s motion to dismiss the appeal as moot is likewise without merit and is denied.

Finally, this Court cannot consider matters not properly a part of the record. Certain remarks attributed to the chancellor and not made a part of the record come within that category. This fact is not altered by their inclusion in appellant’s petition for rehearing filed in the chancery court after the ease had been removed to this Court on appeal.

AFFIRMED.

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


text:
    Michael Raymond NIXON v. STATE of Mississippi.
    No. 50450.
    Supreme Court of Mississippi.
    April 26, 1978.
    Swartzfager & Swartzfager, Paul G. Swartzfager, Jr., Laurel, for appellant.
    A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and LEE and BOWLING, JJ.
   AFFIRMED.


author: BEATTY, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY CO. et al. v. JACKSONVILLE STATE UNIVERSITY et al.
    SC 2602.
    Supreme Court of Alabama.
    March 24, 1978.
    Rehearing Denied April 28, 1978.

      Howard B. Warren, Simmons & Torbert, Gadsden, for appellants.
    Walter J. Merrill, Anniston, for appellee.
    Herbert D. Jones, Jr., Burnham, Klinefel-ter, Halsey & Love, Anniston, for appellees Ellis and Cannon, Architects.
   BEATTY, Justice.

This is an appeal by United States Fidelity & Guaranty Company and Dawson Construction Co., Inc. from a judgment rendered in favor of Jacksonville State University in the amount of $165,842.95. We affirm.

Jacksonville State University (Jacksonville) decided to build a women’s dormitory and in 1969 it employed the architectural firm of Hofferbert-Ellis and Associates, P.A. (architect) to prepare the plans and specifications for the building. On March 10, 1970, after taking bids for construction of the new dormitory, Jacksonville awarded the contract to Dawson Construction Company, Inc. (Dawson). That same day United States Fidelity & Guaranty Company (USF&G), as surety for Dawson, executed a performance bond to Jacksonville. Dawson then made a subcontract with the Bob Roberts Company, Inc. (Roberts) to install the aggregate panels on the outside walls of the dormitory and a subcontract with Copeland Glass Company (Copeland) to finish and install the windows and doors.

Among the provisions in the contract between Jacksonville and Dawson was the requirement that Dawson construct the building according to the “specifications” as promulgated by the architect. In his “specifications” the architect particularized the materials which were to be used in constructing the outside aggregate panels and the performance standards the panels should meet. The same particularization was made concerning the windows. According to these “specifications” the aggregate panels were to be composed of insulation board on exterior wall studs, lathing, epoxy or cementitious matrix, exposed aggregate to be embedded in matrix, sealer coat, caulking, zinc accessories, and related items. The architect also specified that the aggregate panels were to be waterproof.

Rather than giving a product name for the catalyzed cementitious or epoxy matrix, the architect listed the various properties the matrix should have. From the particular manner of listing the matrix’ properties Roberts interpreted that specification to require a particular product, Boncoat, made by the MD Corporation.

The project was started in March or April of 1970. After the outside aggregate panels were installed on the dormitory, water began to come through the panels causing many of them to buckle away from the walls. Representatives for Boncoat and the architect met at the project site to discuss a solution to this problem and the manufacturing representative recommended that Roberts put a scratch coat of cement between the matrix material and the metal lath to solve the leakage problem. Apparently this did not prevent the leakage. It was also discovered that water was leaking around the windows installed by Copeland. Immediately thereafter at Dawson’s request the window jambs next to the aggregate panels were recaulked, but this did not stop the leaks. There was also evidence of corrosion on the metal portion of the windows and in the retainer channels. Although there was a leakage problem with the windows, the main source of leakage was from the aggregate panels. The record discloses that the leakage in the aggregate panels was a result of a defect in the Bon-coat.

In May, 1971 Jacksonville began to insure the building and in June, 1971 the dormitory was occupied. It was not until December, 1972 that all the repairs were considered acceptable.

Sometime after December, 1972 the architect issued orders to Dawson concerning stains on the aggregate paneling. Thereafter, Dawson notified the architect that his guarantee period had expired but that he would forward the instructions to his subcontractors. In October, 1973 Jacksonville filed this action against USF&G, Dawson and the architect to recover damages for breach of contract, against Dawson for breach of an implied warranty on account of defective window work and aggregate panels, and against the architect for breach of an implied warranty that the plans and specifications were sufficient to prevent water leakage. Before the action was tried, a settlement agreement containing certain conditions precedent was entered into between all the parties. This agreement was disregarded, however, and the action proceeded to trial. After a trial without a jury, the court found in favor of Jacksonville. It awarded damages against USF&G and Dawson for $165,842.95 and against the architectural firm of Ellis and Cannon for $89,300.05. The defendants USF&G and Dawson now appeal to this Court.

Among the issues raised by the appellants are these questions:

1. Whether the trial court construed the Jacksonville-Dawson contract erroneously.

2. Whether the apportionment of damages between Dawson and Ellis was supported by the facts.

3. Whether the settlement agreement between the parties released Dawson from the claims of Jacksonville.

4. Whether the damages awarded to Jacksonville were excessive.

The appellants argue that the judgment against Dawson and USF&G arose from an erroneous interpretation of the contract by the trial court. Whether Dawson breached the contract depends upon its construction. The pertinent provision follows:

That for and in consideration of the payments and agreements hereinafter mentioned, to be made and performed by the OWNER, the CONTRACTOR hereby agrees with the OWNER to commence and complete the construction . under the terms as stated in the General and Special Conditions of the Contract; and at his (its or their) own proper cost and expense to furnish all the materials, supplies, machinery equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the said project in accordance with the conditions and prices stated in the Proposal, the General Conditions, Supplemental General Conditions and Special Conditions of the Contract, the plans, which include all maps, plats, blue prints, and other drawings and printed or written explanatory matter thereof, the specifications and contract documents therefor as prepared by Hofferbert-Ellis and Associates, .

The relevant portions of the General Conditions are:

5. Materials, Services and Facilities
(a) It is understood that except as otherwise specifically stated in the Contract Documents the Contractor shall provide and pay for all materials, .
11. Contractor’s Obligations
The Contractor shall and will, in good workmanlike manner, do and perform all work and furnish all supplies and materials, machinery, equipment, facilities and means, except as herein otherwise expressly specified, necessary or proper to perform and complete all the work required by this contract, within the time herein specified, in accordance with the provisions of this contract and said specifications and in accordance with the plans and drawings covered by this contract any and all supplemental plans and drawings, and in accordance with the directions of the Architect-Engineer as given from time to time during the progress of the work. .
34. Subcontracting
(c) The Contractor shall be as fully responsible to the Owner for the acts and omissions of his subcontractors, and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him.
(e) Nothing contained in this contract shall create any contractual relation between any subcontractor and the Owner.
41. Conflicting Conditions
Any provisions in any of the Contract Documents which may be in conflict or inconsistent with any of the paragraphs in these General Conditions shall be void to the extent of such conflict or inconsistency.

The pertinent technical specifications under Part 2, Division 16b, the Exposed Aggregate Panels, and Division 9a, the Aluminum Window Walls, are:

DIVISION 16b
11. GUARANTEE
a. All portions of the exposed aggregate panel installation, including necessary caulking, shall be done by one subcontractor and he shall be completely responsible for the entire installation.
b. To insure against leaks, this subcontractor shall furnish a 3-year Indemnity Bond on the Exposed Aggregate Panel Installation, Guaranteeing panel installation to be completely watertight and free from any leakage, cracking or other defect in the work.
DIVISION 9a
15. GUARANTEE
a. The window wall subcontractor (manufacturer, supplier and erector) shall furnish the Owner an indemnity bond equal to 10% of the subcontract price for work in this division. The indemnity bond shall be effective for a period of 3 years and shall guarantee the Owner against any form of leakage within the window wall system, windows, panels, and/or glass when such leakage is related to the installation from defective workmanship or materials. The effective date of the bond shall be the date of acceptance of the building for use by the Owner.

In reviewing contracts this Court seeks to accord them a reasonable construction under the terms used by the parties who made them, and when the contracts contain several provisions, all are construed together so that a harmonious operation can be given to each provision as far as the language used will permit. City of Fairhope v. Town of Daphne, 282 Ala. 51, 208 So.2d 917 (1968). And while our Court will not re-make a contract between freely assenting parties, nevertheless we will recognize their right to express the limitations under which they will be bound when these are clearly manifested. Norwood Hospital v. Howton, 32 Ala.App. 375, 26 So.2d 427 (1946).

Under the terms of the contract under consideration, Dawson, the general contractor, was “to commence and complete the construction . . . under the terms as stated in the General and. Special Conditions . . . ” and to provide “at his . own proper cost and expense ... all the materials,” etc. “in accordance with the conditions and prices stated in the Proposal, the General Conditions, Supplemental General Conditions and Special Conditions of the Contract. . . ” Under those General Conditions “the contractor shall and will . . . perform all work and furnish all supplies and materials except as herein otherwise expressly specified. . . . ” however, “the Contractor shall be as fully responsible to the Owner for the acts and omissions of his contractors . as he is for the acts and omissions of persons directly employed by him.” The General Conditions further provide that “nothing contained in this contract shall create any contractual relation between any subcontractor and the Owner.” Notwithstanding the contract provisions which indicate that the general contractor may not be liable for acts and omissions of the subcontractor, nevertheless when we consider the other provisions of the contract with Section 34(c), we believe that those provisions make the general contractor liable for acts and omissions of his subcontractors. Although the draftsmanship could have entailed more specificity with respect to the liability of the parties, the contract terms do not clearly exonerate the general contractor. Some of the contract provisions contemplate that someone other than Dawson might be looked to for some of the work and materials, but those do not necessarily exonerate the general contractor. The giving of a bond by a subcontractor in itself does not excuse the general contractor; the owner then has both the general contractor and the subcontractor to look to in the event of a breach by the subcontractor. The provision requiring that one subcontractor be “completely responsible” for the aggregate panel installation may refer only to the number of such subcontractors to be so employed, and does not necessarily exonerate the overall contractual responsibility of the general contractor.

It is also clear that Section 34(c) makes the general contractor responsible not only for his own work but also for the workmanlike manner of the subcontractor’s performance. We believe the more reasonable conclusion, therefore, is that the contract terms intended to make Dawson liable for deficiencies in materials and work furnished by Roberts and Copeland.

Dawson and USF&G further insist that because the architect, in substance, specified Boncoat they should be exonerated from liability under the contract and they cite Wood-Hopkins Contracting Co. v. Masonry Contractors, Inc., 235 So.2d 548 (Fla.App.1970) and Fanning & Doorley Construction Co., Inc. v. Geigy Chemical Corp., 305 F.Supp. 650 (D.R.I.1969) for that proposition. From our examination of the record we conclude that appellants are correct in their assertion that the architect did, in substance, specify Boncoat. This is so because the record discloses testimony by Mr. Ellis, a member of the architectural firm, that the properties of the catalyzed cemen-titious or epoxy matrix listed under Division 16(b) were copied from the Boncoat brochure. In addition, there is testimony that the architect approved the shop drawings submitted by Roberts which indicated the use of Boncoat. Thus the architect’s copying of the matrix’ properties into the “specifications” from the Boncoat brochure, coupled with the approval of the shop drawings indicating the use of Boncoat, were tantamount to the architect requiring Bon-coat in his “specifications.”

But neither Wood-Hopkins nor Geigy is authority for the proposition that merely because the architect did make a specification for Boncoat this exonerates Dawson from liability under the present contract. In Wood-Hopkins a brick masonry subcontractor brought an action against the general contractor for the balance due under their subcontract for brick installation. This subcontract was made pursuant to a general contract between the owner and the general contractor which required that the brick installed be only Miami Stone brick, a product made by a single manufacturer. But the Miami Stone brick installed by the subcontractor contained a latent defect which allowed water leakage. When the subcontractor refused to correct the defect the general contractor had the defect repaired and withheld payment to the subcontractor. The court, in holding that the subcontractor could recover the balance due him under the subcontract, stated that the subcontractor was not liable for the latent defect in the brick because the general contract apparently required that he use only Miami Stone brick. However, this case is distinguishable from the present controversy because there the action was between a general contractor and a subcontractor on their contract, whereas here the action is between the owner and the general contractor on their contract. And as we have pointed out in this action the question of liability deals with the contractual relationship of the general contractor to the owner under the contract provisions which we have previously set forth.

The Geigy case, on the other hand, involved an action by the general contractor against the owner for the balance due under their industrial waste sewer system contract. Under that contract the general contractor was to install the underground sewer system using only Causplit Mortar to join the pipes together. However, the Causplit Mortar joints proved defective when water leaked through them. When the general contractor refused to repair the joints the owner had them repaired by another firm and withheld payment to the general contractor. The court held there that the general contractor could recover the balance due because it was not liable for defects in the Causplit Mortar, a product specifically required by their contract. But neither of these cases had contract provisions similar to the provision we have in Section 34(c) which says that the general contractor shall be fully responsible to the owner for acts and omissions of his employees as well as for those of his subcontractors. Consequently, those provisions, when considered together, distinguish all the cases cited by appellants and make Dawson liable to Jacksonville for the materials and workmanship furnished by Dawson’s subcontractors. Therefore appellants’ argument is not well taken.

The appellants also argue that the apportionment of damages between Dawson and Ellis was unsupported by the facts. Although the record does not disclose any written finding of fact, when a trial court has heard testimony ore tenus this Court assumes that it made those findings which the evidence supports and which will justify the judgment rendered. Boaz Nursing Home, Inc. v. Recovery Inns of American, Inc., 289 Ala. 144, 266 So.2d 588 (1972); Dockery v. Hamner, 281 Ala. 343, 202 So.2d 550 (1967). Furthermore, when the evidence is heard orally before the trial court its verdict will not be disturbed on appeal unless plainly erroneous, a conclusion which this record will not allow us to entertain. Daugherty v. Gulf Shores Motel, Inc., 292 Ala. 252, 292 So.2d 454 (1974).

The final issue is whether the settlement agreement made between these parties (and others who are not parties here) prior to trial operated as a release of all claims by Jacksonville against Dawson. Among the provisions contained in that instrument was this one:

3. Copeland Glass will recaulk the areas of the building necessary to prevent water from entering.

This language established a material condition precedent to any effective settlement between Dawson and Jacksonville, and that condition was not met because the record shows that the building continued to leak after the agreement was made, even though Copeland recaulked the windows on numerous occasions. Cf. Charter Corporation v. Lawrence Construction and Development Co., Inc., 289 Ala. 300, 267 So.2d 147 (1972); Kingston v. Preston, 2 Doug. 689 (1773). Accordingly, because Dawson did not prove the performance of this material condition precedent, no error resulted from the trial court’s disregard of the settlement agreement and its proceeding to trial on the merits.

Finally, the appellants argue that the damages awarded were excessive. However, the record discloses evidence that the damages awarded to Jacksonville were reasonably related to the amount necessary for Mr. Edward Roberts, a subsequent general contractor, to repair the defective dormitory windows and walls. In addition, the appellants in brief concede that the damages awarded actually equalled an estimate of repairs.

Because there is no reversible error the cause must be, and is, affirmed.

AFFIRMED.

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation v. Deborah D. BOYER, a minor, et al.
    SC 2739.
    Supreme Court of Alabama.
    March 24, 1978.

      John S. Key and J. G. Tubb, of Eyster, Eyster, Key, Carmichael & Tubb, Decatur, for State Farm Mut. Auto. Ins. Co.
    David B. Cauthen, Decatur, for appellees: Lisa Kay Coates, a minor, Harry A. Coates, JoAnn V. Wallace, a minor, John H. Wallace, Rickey S. Holmes, a minor, and Fred Holmes.
    Dan F. Nelson, Decatur, for appellees, Deborah D. Boyer and William E. Boyer.
   BEATTY, Justice.

Appeal by State Farm Mutual Automobile Insurance Company from a decision adverse to it in a declaratory judgment action. We affirm.

State Farm initiated the action praying that the trial court would determine that no insurance coverage was afforded the insured, William E. Boyer, under a policy of insurance previously issued to Boyer by State Farm. The policy contained the following clause:

USE OF NON-OWNED AUTOMOBILES
If the named insured is a person or persons, and if during the policy period such named insured owns a motor vehicle covered by this policy and classified as ‘pleasure and business’, such insurance as is afforded by this policy with respect to the owned motor vehicle under;
(1) coverages A and B applies to the use of a non-owned automobile by:
(a) the first person named in the declarations or,
(b) if residents of the same household, his spouse, or the relatives of either, and
(c) any other person or organization not owning or hiring such automobile, but only with respect to his or its liability for the use of such automobile by an insured as defined in sub-sections (a)(b) above; .
PROVIDED SUCH USE, OPERATION OR OCCUPANCY IS WITH THE PERMISSION OF THE OWNER OR PERSON IN LAWFUL POSSESSION OF SUCH AUTOMOBILE AND IS WITHIN THE SCOPE OF SUCH PERMISSION.

While this policy was in force Deborah Boyer, the insured’s daughter, was involved in an accident while she was driving a non-owned automobile of her friend, Charlotte Dunn. The circumstances of that incident raised the question of whether Deborah was driving the non-owned automobile within the scope of the permission granted to her by Charlotte. The evidence at trial was extensive even though the defendants elected not to call any witnesses. At the conclusion of the evidence State Farm moved for a directed verdict; the trial court, however, submitted two written interrogatories to the jury under Rule 49(b), ARCP, one of which asked:

Was the use by Deborah D. Boyer on April 26, 1976, of the Buick automobile within the scope of the permission given or granted to Deborah D. Boyer by Charlotte Dunn, the daughter of Christine Dunn?

Judgment was entered upon the jury’s affirmative finding. The denial of the plaintiff’s motions for a directed verdict, judgment N.O.V., and a new trial constitute some of the claimed errors on this appeal. These rulings necessitate a review of the evidence on the scope of the permission granted to Deborah by Charlotte.

That evidence established that Charlotte Dunn and Deborah Boyer attended the same high school. On the occasion in question they had ridden to school in the Dunn automobile, and, according to Charlotte, during their second period class Deborah asked Charlotte to allow her to borrow the Dunn car to go to the store for a coke. This store is about 7/io mile west of the school. Deborah had borrowed the Dunn car on several prior occasions for the same purpose, although Charlotte did not know on those occasions which store Deborah was going to. According to Charlotte, about 10:20 a. m. Charlotte gave Deborah the keys, telling her to “go to the store and come right back.” It was Charlotte’s idea that it would take about fifteen to thirty minutes. The accident occurred at a point about V2 mile east of the school. When Deborah failed to return the keys during the remainder of the school day, Charlotte began to look for her around 3:20.

On cross-examination at a later stage, however, Charlotte stated:

Q And you really didn’t know when Debbie was going to be back, did you?
A No, sir.
Q Fact is you assumed that she may come back a certain time, but you looked for her back after school was out, is that right ? (emphasis added)
A Yes, sir.

(There is evidence in the record that school ended for the day at 3:05 P.M.) And still later:

Q Charlotte, you testified earlier that on or about the period of time when you last saw Debbie Boyer on April 26, 1976, that you thought it would take about 15 or 20 minutes to go to the store?
A Yes, sir.
Q This was — this was communicated between you and Debbie?
A Yes, sir.
Q And in what manner? What I am saying — do you understand my question, Charlotte?
A No, sir.
Q What I am saying is did you say anything to Debbie about just being gone fifteen or twenty minutes or did you just tell her to go to the store?
A I just told her to go to the store.
Q You told her something about going to the store and hurrying back?
A Yes, sir.
Q But there was no mention by you or her on this occasion about being gone just 15 or 20 minutes ? (emphasis added)
A No, sir.
Q This is just something that you thought in your own mind?
A Yes, sir.
Q And you again did not know what time she would depart the school grounds nor when she would be back ?
A No, sir.
Q And did you know which store she had planned on going to ?
A No, sir.
Q Was this trip in your understanding just her trip ?
A Yes, sir.
(Emphasis added)
Q Was she going to do anything for you?
A No, sir.
Q Did you know of anybody going with her?
A No, sir.
Q So it was just a trip whereby you let her use your mother’s car which you had?
A Yes, sir.
Q For her benefit ?
A Yes, sir.
Q For her pleasure ?
A Yes, sir.
(emphasis added)

Another witness, Dawn Davis, testified that she overheard a conversation on the day in question regarding Deborah’s borrowing Charlotte’s car, and that she heard Charlotte tell Deborah to go to the store and come right back.

Portions of the deposition of Deborah Boyer, a party defendant, were introduced by State Farm. Her testimony was that while the two of them were in assembly, earlier that morning, she asked Charlotte to let her borrow the car around 11:30, telling Charlotte that she was going to run up to the store. According to Deborah, Charlotte said “Okay.” When she left the school she was not planning to go anywhere except to the store and straight back, but following her trip to the store she rode around town, occasionally stopping to visit with friends she encountered, until she began to return to the school when the accident occurred. Doubtless this testimony was introduced by State Farm to reveal Deborah’s actual use of the automobile, but part of it also tended to establish a lack of positive instructions from Charlotte on the use of the automobile, contrary to some of Charlotte’s testimony on both direct and cross-examination.

In determining whether it was error to overrule the plaintiff’s motion for a directed verdict, the evidence must be viewed in a light favorable to the defendant, and if any reasonable inference might be drawn adverse to the plaintiff’s position that the automobile was used outside the permission granted, it was proper for the trial court to overrule the motion and let the issue be resolved by the jury. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236 (1975); Stonewall Ins. Co. v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973). As we view the evidence in this case, a jury question was presented on whether Charlotte Dunn gave any limiting directions, and thus whether Deborah was driving the ear within the scope of her permission at the time of the accident. On the other hand, Charlotte’s testimony on direct examination established a limiting permission. But when we consider this evidence in connection with her cross-examination and that portion of Deborah Boyer’s deposition introduced by State Farm, adverse inferences against the plaintiff’s position become apparent, for Deborah deposed, in effect, that no limiting instructions were given to her.

In this stage of the evidence, it was the proper course for the trial court to refuse to direct a verdict for plaintiff, State Farm:

It is well established that, if there be any evidence which tends to prove or to disprove the plaintiff’s cause, the trial court should not withdraw the issue of fact from the jury. It is not for the court to judge of the sufficiency of the evidence or decide which of the conflicting tendencies of the evidence should be adopted by the jury, nor to draw the reasonable inferences from the evidence for the jury. .
‘A court should never direct a verdict when the evidence is such as to afford a reasonable inference of the existence of any fact unfavorable to the right of the party asking the affirmative charge to the verdict.’ . . . Jones v. Bell, 201 Ala. 336, 77 So. 998 (1917).

In civil cases, the question must go to the jury if the evidence arising therefrom furnishes a scintilla in support of the theory, Huff v. Vulcan Life and Accident Ins. Co., 281 Ala. 615, 206 So.2d 861 (1968) (testimony of attending physician in action by insured against insurance company); Glass v. Davison, 276 Ala. 328, 161 So.2d 811 (1964) (testimony of employee in action by minor against employer); Southern Apartments, Inc. v. Emmett, 269 Ala. 584, 114 So.2d 453 (1959) (testimony of employee in action by tenant against landlord); Parkinson v. Hudson, 265 Ala. 4, 88 So.2d 793 (1956) (testimony of party favorable to opponent as well as to himself); Sloss-Sheffield Steel & Iron Co. v. Littrell, 246 Ala. 58, 18 So.2d 744 (1944) (testimony of plaintiff and others in action based upon negligence and subsequent negligence; Edwards v. Earnest, 206 Ala. 1, 89 So. 729 (1921) (testimony of an employee-driver in action by pedestrian against employer).

The appellant also contends that the trial court erred when it instructed the jury that the burden of proof in this declaratory judgment action was upon the plaintiff, State Farm. Conceding a division of authority among the various state jurisdictions, the appellant maintains that the better reasoning would place the burden where it would be if the insured had brought an action on the policy. That question, however, has been decided already in General Ins. Co. of America v. Killen, 270 Ala. 604, 120 So.2d 887 (1960) in which this Court held that a fire insurer which sought to have nonliability declared because of noncompliance with a policy provision had the burden of proving the existence of that policy provision. And in Alabama Farm Bureau Mut. Cas. Ins. Co. v. Cofield, 274 Ala. 299, 148 So.2d 226 (1962), in which the insurance company sought a declaration that it was not obligated to defend a pending action because of a violation of the “cooperation clause” contained in the policy, we held that the burden of proving those allegations was on the complainant. These cases have taken the position, properly we believe, that the insurer who seeks a declaration of relief from the terms of the policy which it has issued bears the burden of proving its entitlement to that relief. Because the plaintiff-insurer here seeks such affirmative relief the trial court’s instruction regarding plaintiff’s burden was proper.

State Farm also maintains that the trial court committed reversible error by refusing the following charge requested by the plaintiff:

I charge you, any prior inconsistent statement made by any of the witnesses who testified in this case should not be considered by you as substantive evidence but should be considered by you only to the extent that it would reflect on the credibility of the witness making such prior inconsistent statement.

This charge was properly refused because it did not instruct the jury of the charge’s relation to the issues being litigated. L. & N. R. Co. v. Dollar, 294 Ala. 276, 314 So.2d 867 (1975); Bagley v. Grime, 283 Ala. 688, 220 So.2d 876 (1969). The principal issue in this case was whether the use of an automobile was within the scope of the permission of the person in lawful possession of it. Apparently by requesting this charge the plaintiff wished to have the jury instructed that it could not consider Charlotte’s inconsistent statements contained in her deposition as substantive evidence on the issue of her instructions to Deborah. This charge, however, does not clearly relate to that issue. Moreover, the charge is confusing because it fails to define a prior inconsistent statement, and it is misleading because it fails to distinguish rules applicable to such statements made by parties from those made by witnesses who are not parties. Hamilton v. Browning, 257 Ala. 72, 57 So.2d 530 (1952); Engel v. Davis, 256 Ala. 661, 57 So.2d 76 (1952).

The appellant also claims as error the trial court’s overruling its objection to the following question which, appellant states, was asked by defense counsel to Charlotte Dunn:

Did she, in your own mind, use the car within the scope of the permission for which she had borrowed the car?

The record does not support the appellant’s contention that this was error, principally because it reveals that State Farm’s counsel, not defense counsel, first elicited this question before the jury. The record shows that on Charlotte’s cross-examination defense counsel alluded to a Mr. Sanders who had asked Charlotte questions at her home, and also asked her whether she had gone over “the statement.” Then the following occurred:

Q Would you read that question, the question where it says—
A ‘So she did — ’
THE COURT: I can’t hear her.
MR. KEY: Could you show it to the Court David?
THE COURT: Well, the answer is already in I assume. I will overruled the objection. It is not going to bind the Court or the Jury either one.
MR. KEY: Could we perfect our objection?
THE COURT: Yes, sir.
MR. KEY: Can I borrow your statement? We object to the reading of the question—
MR. NELSON: I can’t hear Mr. Key.
MR. KEY: Well, come up here, Dan. We object to the question—
THE COURT: If you make an objection it has to be to me. I have to hear it.
MR. KEY: Yes, sir. We object to the question ‘She did in your own mind use the car within the scope of your permission for which she borrowed the car’ on the ground that invades the province of the Jury. That is the question for the Jury to decide.
THE COURT: I will allow it for — I won’t allow it for whether she did or not. I will allow it from this witness on a statement she made in connection with her other testimony. For that limited offer I will let it go in. I will overrule your objection and give you an exception.
MR. KEY: On the further ground it does not contradict any statement she has given in her testimony here today, therefore it is not proper impeachment.
THE COURT: Overruled. I don’t know if it is impeachment, but it is cross examination.
Q (BY MR. CAUTHEN:) Charlotte, that last question on page 6 is so she— ‘Did she in your own mind use the car within the scope of permission in which she borrowed the car?’ and your answer was ‘Yes, sir.’
MR. KEY: Your Honor, we would like to again object and reserve our objection.
THE COURT: I will give you the same objection and same ruling and your exception. I consider that a timely objection so the record won’t show you waived it.
MR. KEY: All right.
Q (BY MR. CAUTHEN:) Your answer is yes, sir?
A Yes, sir.
MR. CAUTHEN: That is all.

It can be readily observed that this question which was apparently contained in a previous statement made by Charlotte to Mr. Sanders was initially proved at the trial by the counsel who now complains that it was error to admit it. If there was any error in its admission at that stage, therefore, the error was self induced, Bradford v. Birmingham Electric Co., 227 Ala. 285, 149 So. 729 (1933); 2A Ala.Dig. § 882(8), and plaintiff cannot now complain of the trial court’s ruling, even if we consider, as the trial court did, that his objection was made in timely fashion. That is, although the appellant’s objection was made in time, any error in the trial court’s admission of the question was brought on by the appellant himself.

Appellant also contends that the trial court erred in overruling its motion for a mistrial when counsel for one of the defendants referred to appellant as “the big insurance company.”

The record shows that objecting counsel first asked “for an appropriate instruction to the jury to eradicate the prejudicial effect of it.” The trial court complied with this request:

THE COURT: All right. Ladies and gentlemen, the relative size of these parties as concerns the justice of the cause and how you return the answer to the interrogatory should be no part of your consideration, and with that I will stop. Go ahead.

Then counsel asked for a mistrial.

First of all we note that the entire argument is not included in the record and there is not, therefore, enough revealed to identify the context of what was said to justify a conclusion that the remarks were improper. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So.2d 594 (1953). In the matter of counsel’s closing argument much must be left to the trial court’s judgment, and his rulings are presumed to have been sufficient to remove any opprobrium unless the record reveals substantial prejudice. Birmingham Electric Co. v. Mann, 226 Ala. 379, 147 So. 165 (1933). We are not persuaded that any such prejudice existed after the trial court’s admonition given immediately after the objection.

The same response would be applicable to another portion of defense counsel’s summation before the jury, viz.:

Anytime State Farm or any of those insurance companies can get out of paying based on one of these clauses they will do it. .

We disagree that this statement is patently illegal or that it was calculated solely to create bias against the plaintiff. Indeed, the entire case represents an effort by State Farm to avoid liability based upon the scope of permission clause, and because that theory was present in the case it was not improper to argue the point. It appears to us that this argument was a permissible “expression of a critical opinion of the attitude of the insurer.” Provident Life & Acc. Ins. Co. v. Downey, 242 Ala. 482, 7 So.2d 17 (1942). For that reason it was not reversible error to overrule the objection to it.

Our review of the record convinces us that it was not error for the trial court to overrule the motion for a new trial. The jury’s verdict is supported by competent evidence, and the trial court’s refusal to grant a new trial strengthens the presumption of its correctness. Blount Bros. Construction Co. v. Rose, 274 Ala. 429, 149 So.2d 821 (1962).

For these reasons the judgment is due to be, and is, affirmed.

AFFIRMED.