author: STOKER, Judge.

text:
    William FROEBA et al., Plaintiffs-Appellants, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY, OFFICE OF ALCOHOLIC BEVERAGE CONTROL, et al., Defendants-Appellees.
    No. 6916.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Writ Refused April 9, 1979.

      Whitehead & McCoy, C. R. Whitehead, Jr., Natchitoches, for plaintiffs-appellants.
    Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for defendants-appellees.
    Before WATSON, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a suit for judicial review of the denial by the Office of Alcoholic Beverage Control (ABC) of plaintiffs’ application for a permit to sell alcoholic beverages at retail. ABC gave the following reasons for the denial of plaintiffs’ application:

“This application is being denied under LRSA 26:80B for the reason the location is in an area where issuance of Class A permits is prohibited by referendum vote.”

The issue in this case is whether the local option ordinance of the City of Natchitoch-es purporting to prohibit the sale of alcoholic beverages, other than beer, for consumption on the premises applies to the plaintiffs’ place of business, “The Town House”. The District Court found that the local ordinance was applicable to the plaintiffs and upheld the ABC’s refusal to grant plaintiffs a liquor permit. From this holding, plaintiffs appealed.

As this case was tried by stipulation together with some documentary evidence, there is no dispute as to the facts and only questions of law are presented on appeal. The trial stipulation entered into by the parties, plaintiffs William Froeba and Mike Joyner, and defendants, City of Natchitoch-es and the State of Louisiana, Department of Public Safety, Office of Alcoholic Beverage Control, reads as follows:

TRIAL STIPULATION
The following stipulations of fact are made by and between plaintiffs, William Froeba and Mike Joyner, through their undersigned counsel, by the defendants, State of Louisiana, Department of Public Safety, Office of Alcoholic Beverage Control, through its undersigned attorney, and the City of Natchitoches, Louisiana, through its undersigned attorney.
1.
Plaintiffs are the present lessees of the Town House property located on Highway One South in Natchitoches, Louisiana, and they have filed an application with the State of Louisiana, Department of Public Safety, Office of Alcoholic Beverage Control, to obtain a Class A Retail Permit which would permit them to sell alcoholic beverages of high content by the drink at this location. (A copy of the plaintiffs’ lease and a copy of the description of the property on which the leased premises are located are to be offered by the plaintiffs at trial without objection.)
2.
This permit was denied solely on the grounds that plaintiffs’ business premises are located in an area where the issuance of a Class A Permit is prohibited by a valid ordinance — in this case, an ordinance of the City of Natchitoches, Louisiana.
3.
The present city ordinance which prohibits the sale of high alcoholic beverages by the drink in the City of Natchitoches, Louisiana, is Ordinance No. 503y2, passed April 13, 1949, pursuant to a local option election held April 5, 1949. Since April 5, 1949, there have been no other elections in the City of Natchitoches, Louisiana for the purpose of regulating the sale of alcoholic beverages. A certified copy of Ordinance No. 503V2 will be offered at the hearing in this matter by the defendant, City of Natchitoches, with agreement of all parties to this stipulation.
4.
The Town House property on which plaintiffs’ business premises is located was annexed into the municipal limits of the City of Natchitoches, Louisiana, by Ordinance No. 542, passed June 28, 1950, to be published in the Natchitoches Times on June 29, 1950, and to become effective thirty days after publication. A copy of Ordinance No. 542, passed June 28, 1950, will be offered by plaintiffs without objection and with the consent of all parties to this stipulation.
5.
The Town House property is located in Ward One of the Parish of Natchitoches, Louisiana, prior to its annexation into the city limits of Natchitoches, Louisiana.
6.
On November 17, 1943, pursuant to a parish-wide referendum election held on October 5, 1943, the following ordinance was passed:
“AN ORDINANCE
By Mr. Gibson seconded by Mr. Martin Prohibiting the sale or keeping for sale .of intoxicating liquors in the Parish of Natchitoches, State of Louisiana, and providing penalties for the violation of this ordinance and repealing conflicting ordinances.
SECTION I. Be it Ordained by the Police Jury of Natchitoches Parish, Louisiana, convened in regular session that in accordance with the will of the people of Natchitoches Parish, Louisiana as expressed in an election held on the 5th day of October, 1943, the results of which were promulgated on October 6th, 1943, by this Police Jury, the sale or keeping for sale, of intoxicating liquors of more than one-half of one per centum of alcohol by. volume, for beverage purposes, is hereby prohibited within Natchitoches Parish, Louisiana, under the provisions of Act 17 of the First Extra Session of the Louisiana Legislature for the year of 1935.
SECTION II. Be It Further Ordained by the Police Jury of Natchitoches Parish, Louisiana, convened in regular session that whoever shall sell or keep for sale, any intoxicating liquors for beverage purposes of more- than one-half of one per centum by volume in the Parish of Natchitoches, State of Louisiana, shall on conviction be punished by a fine of not less than One Hundred Dollars ($100.00) nor more than Five Hundred Dollars ($500.00) or by imprisonment of not less than Thirty (30) days, nor more than Six (6) Months additional, or both within the discretion of the Court and that for a second or subsequent offense the said penalties may be doubled in the discretion of the Court. SECTION III. Be It Further Ordained by the Police Jury of Natchitoches Parish, Louisiana, convened in regular session that this ordinance shall be in full force and effect on and after the 1st day of January, 1944.
SECTION IV. Be It Further Ordained hy the Police Jury of Natchitoches Parish, Louisiana, convened in regular session that all ordinances or parts of ordinances in conflict herewith be and the same are hereby repealed.”
A certified copy of the said ordinance will be offered by the plaintiffs at the hearing on this matter without objection and with consent of all parties to this stipulation.

On the basis of these facts, plaintiffs argue that the area annexed into the City of Natchitoches on June 28, 1950, is not bound by Ordinance 503V2 of the city. Plaintiffs’ reasoning is that under the case of State v. Sissons, 292 So.2d 523 (La.1974), Natchitoches Parish Ordinance 542 became invalid when the Revised Statutes became effective May 1, 1950, in that “it is an exercise of local option on a parish-wide basis in contravention of [LSA-jR.S. 26:582”. Plaintiffs argue that on May 1, 1950, as a result of there no longer being a valid local option ordinance for the Parish of Natchitoches, Ward One of the parish again became a “wet” area. In other words, Ward One reverted to its original non-dry status. Hence, plaintiffs assert that when that area of Ward One in which the Town House is now located was incorporated into the City of Natchitoches on June 28, 1950, it entered the city as a “wet” area. Citing the case of Blanchard v. Gauthier, 248 La. 1107, 184 So.2d 531 (1966), plaintiffs contend that since Ward One was “wet” when it was annexed into the city, it still retains that character until another valid local option election is held for the City of Natchitoches. Plaintiffs conclude that they should have been granted a Class A alcoholic beverage permit by the ABC.

As noted earlier, the trial judge affirmed the administrative ruling of ABC holding that the City of Natchitoches had obtained “vested rights” in the enforcement of ordinance 50314 by considering the sale of “liquor by the drink” illegal in the area in which the Town House is located. In this regard, the trial judge stated the following in his written reasons:

The City of Natchitoches prior to and since the Sissons case treated this area as a “dry” area in that . . . Ward one was also “dry” in 1950. Under the cases overruled by Sisson the City of Natchi-toches acted properly. Therefore the locations of “The Town House” for the period 1950 to date of plaintiffs application was considered by the City of Natch-itoches to be limited to sales of alcoholic beverages as was other areas of this city. This permitted uniformity in enforcement of the city’s alcoholic beverages sales laws and the policing of the area. These and other activities of the city within the area have developed within the city certain vested rights.

I.

We have found no authority for the application of a vested rights theory in this case, and the District Court did not direct us to any. We are of the opinion that the District Court erred in holding that the City of Natchitoches has obtained “vested rights” in the enforcement of its local option ordinance which would allow it to prohibit “liquor by the drink” in the area annexed into the city on June 28, 1950. The Louisiana Supreme Court in State v. Sissons, supra, commented in this regard at 292 So.2d 525:

The power to regulate traffic alcoholic beverages is vested in the State and the legislature may delegate such power to political subdivisions of the state. See State v. Emerson, 197 La. 783, 2 So.2d 212 (1941); State v. Gardner, 198 La. 861, 5 So.2d 132 (1941). However, by so delegating the State does not surrender its power and the legislature can at any time alter or recall the delegated power. State v. Gardner, supra; State v. City of New Orleans, 151 La. 24, 91 So. 533 (1922). Generally, a police regulation of a subdivision of the State enacted pursuant to authority delegated by the State cannot exceed the grant of authority and must fall when it conflicts with State law. See La.Const. Art. 14, § 40(d) (1921). Cf. City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206 (1952); State v. Bradford, 220 La. 176, 56 So.2d 145 (1951).

From this language in Sissons, it can be seen that the power of local governing bodies to prohibit liquor sales through the means of local option elections is a provisional grant of authority which the State may at any time recall. Under these circumstances, a local governing authority, such as the City of Natchitoches in this case, can never obtain “vested rights” in the enforcement of its local option ordinance.

II.

Despite the trial court’s error in holding that the City of Natchitoches has vested rights in the enforcement of ordinance 503% we have considered the possibility that the ordinance prohibiting certain liquor sales may, for other reasons, be applicable to the area annexed in 1950. Defendant-City argues that the Sissons case did not per se mandate the invalidity of Natchi-toches Parish Ordinance 542. Hence, the City asserts that Ward One was not “wet” when it was annexed in 1950 and therefore, is not “wet” today. It can also be argued that when Ward One was annexed into the City of Natchitoches, it then took on the same character as the City, i. e., “dry” with regard to sales of liquor “by the drink”.

In deciding whether ordinancé 503V2 is applicable to the plaintiffs’ leased property for grounds other than that given by the trial court, a review of recent decisions of the Louisiana Supreme Court starting with the Sissons case is appropriate. In Sissons, the court was faced with deciding the validity of a parish-wide ordinance adopted in a 1939 local election in Winn Parish, which prohibited the sale of alcoholic beverages containing more than one-half of one per cent of alcohol by volume. The court found that this ordinance was invalidated by the adoption of the 1950 Louisiana Revised Statutes. The court held that it conflicted with the Revised Statutes in the following three respects:

(1) It is an exercise of local opinion on a parish-wide basis in contravention of R.S. 26:582.
(2) It purports to prohibit beverages with an alcoholic content which by the terms of R.S. 26:588 may not be regulated by local prohibition.
(3) The penalties under the ordinance grossly exceed those allowed under R.S. 26:595.

In the case of State v. Wright, 305 So.2d 406 (La.1974) the court invalidated a parish-wide option ordinance of Franklin Parish on the same three grounds given in Sissons and quoted above. The court further held that the 1974 amendments to LSA-R.S. 26:582 allowing parish-wide local option elections could apply prospectively only. The court stated at 305 So.2d 408 the following:

The 1974 legislation can operate prospectively only; it can render valid ordinances and local option elections contrary to the requirements which were violated in this case only if those elections and those ordinances occurred after the effective date of the 1974 Acts. However, these 1974 Acts cannot revive those elections and ordinances which we have already declared null and void on the basis of prior legislative action. (Emphasis theirs.)

In Tolar v. State, 315 So.2d 22 (La.1975) the court held that Act No. 325 of the 1974 Legislature, which attempted to amend LSA-R.S. 26:588 to preserve local ordinances adopted prior to 1948 which prohibited sales of liquor containing more than one-half of one per cent alcohol by volume or under 3.2 per cent alcohol and to legislatively overrule any “court decisions to the contrary,” was unconstitutional as being an attempt to reenact a law by reference to title and as being an ex post facto law.

All of the previously mentioned decisions were rendered in the context of a criminal prosecution or a threatened criminal prosecution. However, in Harper v. State, Department of Revenue, 328 So.2d 669 (La.1976), the court held that a local ordinance admittedly invalid as a basis for criminal prosecutions likewise could not be used as grounds to deny the plaintiffs’ application for a liquor permit.

Applying the above jurisprudence to the argument of the City of Natchitoches that the Natchitoches Parish Ordinance 542 was not invalidated by the passage of the Revised Statutes, it is obvious that such an argument must fail. Ordinance 542 is invalid in that “it is an exercise of local option on a parish-wide basis in contravention of LSA-R.S. 26:582.” State v. Sissons, citation above. Since the amendment to LSA-R.S. 26:582 applies only to those elections held subsequent to its enactment in 1974, it has no effect on a decision in this case. State v. Wright, supra. Since we find that ordinancé 542 did indeed become invalid as of the effective date of the Revised Statutes, May 1, 1950, it follows that when Ward One was annexed into the City on June 28, 1950, it was a “wet” area. This conclusion results from the fact that no valid local option election prohibiting liquor sales had been held in this area and thus liquor of any type could be sold in that area.

III.

However, having found that Ward One was “wet” when annexed into Natchitoches June 28,1950, the question remains whether upon annexation Ward One acquired the “dry” character of the City of Natchitoches. In other words, by its assimilation into the corporate limits, did Ward One become subject to ordinance 503y2 of the City of Natch-itoches?

As noted earlier, plaintiffs rely on the case of Blanchard v. Gauthier, supra, in the assertion that an area annexed into the municipal limits of a city retains its past character as either “wet” or “dry”. In Blanchard, the court was faced with a situation where Ward Ten of East Baton Rouge Parish was abolished, and then consolidated with other areas of the parish in the formation of Ward Three. Ward Ten had previously been designated as a “dry” area in a valid local election option by the population of that area. However, the areas with which the former Ward Ten was consolidated were all “wet” in character. Hence, plaintiff applied for a liquor permit based upon the assertion that Ward Ten took on the “wet” character of the remainder of the new Ward Three. However, the court rejected this argument and held that the area comprising the former Ward Ten retained its “dry” character until such time as an election in Ward Three was held to determine its status.

Plaintiffs also cite the case of Davis v. Caldwell Parish Police Jury, 331 So.2d 872 (La.App. 2nd Cir. 1976) in support of their argument that Ward One retained its “wet” status upon its annexation into the City of Natchitoches. In Davis, Ward Four of Caldwell Parish, a “dry” area, was merged into Ward Two, a “wet” area. Plaintiff applied for a permit to operate a liquor establishment in the old Ward Four area and was rejected. Plaintiff then sought a writ of mandamus to compel the police jury to approve his liquor license. The District Court denied the writ citing Blanchard. Plaintiff appealed arguing that the enactment of LSA-R.S. 26:582.1 had legislatively overruled Blanchard and thus the former Ward Four did become “wet” upon its merger. The court rejected plaintiff’s argument for the following reasons given at 331 So.2d 874:

The plaintiff argues that paragraph B of this statute does not allow the sale of alcoholic beverages to be prohibited in a portion of a ward. We find a proper interpretation of this statute requires that paragraphs A and B be read together. Paragraph A limits the applicability of this section to the revised statutes to wards or municipalities having a population of 100,000 or more. Paragraph B merely amplifies the provisions of the preceding paragraph. While paragraph B does restrict the permission or prohibition of the sale of alcoholic beverages in only a portion of a ward, we interpret this to be subject to the population limitations of paragraph A.

The court found that the areas involved had a population of less than 100,000 and therefore the former Ward Four retained its “dry” status subsequent to the merger.

In the present case, defendant-City relies on LSA — R.S. 26:582:1 for the proposition that Ward One took on the character of the City of Natchitoches upon its annexation. However, it was stipulated among the parties at tri^l that the population of the City of Natchitoches is something less than 20,000. Hence, if the court follows the Davis court’s interpretation of 26:582.1, then it must find that the statute is inapplicable to this case.

We do adopt the reasoning in Davis and find the statute has no relevancy to this case, since the City of Natchitoches has a population of less than 100,000. Hence, the Blanchard case is still controlling and it mandates a finding that that part of Ward One of Natchitoches Parish which was annexed into the City retains its status as a “wet” area. From this conclusion, it follows that City of Natchitoches Ordinance 503V2 is not valid grounds for denying plaintiffs a Class A liquor permit. Therefore, ABC erred in denying them such a permit and the District Court erred in affirming that decision.

For the foregoing reasons, the judgment of the district court is reversed, and judgment is hereby rendered in favor of plaintiff and against defendant, ordering defendant, State of Louisiana, Department of Public Safety, Office of Alcoholic Beverage Control, to issue plaintiffs, William Froeba and Mike Joyner, a Class A liquor permit pursuant to their application herein.

REVERSED AND RENDERED.

      . LSA-R.S. 26:80 B reads as follows:
      B. No permit shall be issued by the board or by any municipality or parish to authorize any business in any subdivision of the state where the business has been prohibited by referendum vote.
      However, in any subdivision where saloons are prohibited, but package sales of liquor are permitted, Class B package liquor permits may be issued in combination with Class A retail beer permits.

      . Ordinance 503'/2 was held to be valid by this court in the case of City of Natchitoches v. The Keg of Northwestern, Inc., 349 So.2d 466 (La. App.1977).

      . Prior to the 1974 amendment the second paragraph of LSA-R.S. 26:582 read as follows:
      “This election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. No such election shall be held on a parish wide basis or for any subdivision other than the ones above mentioned.”

      . The court’s holding in Wright also dealt with amendments to statutes other than LSA-R.S. 26:582, but they are not important to a decision in this case.

      . LSA-R.S. 582.1 reads as follows:
      A. When a portion of a ward or municipality is annexed or made a part of another ward, municipality or city-parish government having a population of one hundred thousand or more, the portion annexed or made a part of shall take on the legal sales characteristics, as provided in this Chapter, of the ward, municipality or city-parish government to which it is annexed or made a part of; provided, however, that this section shall not apply to any ward, municipality, or city parish government, or any portion of any of these, located within the Parish of Ouachita. (Emphasis added.)
      B. The provisions of R.S. 26:582.1 shall be applicable to any election previously called under Title 26 or any other local option law and to any territory covered by such election which has subsequently been merged with another ward, incorporated municipality or portion thereof or whose boundary has been changed, it being the intention of this act that the sale of beverages covered by Chapter 26 be permitted or prohibited only in an entire ward or incorporated municipality and not in any portion thereof.


source: Caselaw Access Project

author: GARRISON, Judge.

license: Public Domain

text:
    Sandra CAMPBELL v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 9911.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 15, 1979.

      Roy A. Raspanti, New Orleans, for plaintiff-appellee.
    James Maher, III, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON, and GARRISON, JJ.
   GARRISON, Judge.

This appeal arises out >of a lawsuit by Sandra Campbell against New Orleans Public Service, Inc. for injuries received when she fell while riding as a passenger on one of defendant’s buses. From a judgment in favor of plaintiff awarding damages in the amount of $3,572.50 plus interest and court costs, defendant has appealed solely on the issue of liability.

The record reflects that plaintiff was standing in the aisle of the bus preparing to get off at the next stop, and that she was knocked to the floor when Wanda O’Neal, the passenger standing behind her, fell into her. The trial judge concluded that the plaintiff was injured as the result of the improper operation of the bus. Defendant-appellant contends that Ms. O’Neal’s conduct in failing to hold onto the handrails on the bus was the sole and proximate cause of the accident, or, in the alternative, that it was an intervening and superseding cause which absolves defendant from liability.

The evidence indicates that the bus was going around a barricade in the street when the two women fell. However, the testimony is contradictory. Ms. Campbell and Ms. O’Neal testified that the bus was moving at a normal or faster-than-normal speed as it passed the barricade. Ms. O’Neal stated that the bus was rocking because the street was bumpy. She admitted that she was not holding onto the handrail. Two other passengers, Sandra Searcy and Sharon Tibbs, testified variously that the bus was either going very slow or had come to a complete stop when the women fell. The testimony of the four women was conflicting in other areas, such as where Ms. Campbell and Ms. O’Neal were sitting and how long they had been standing when they fell. The bus driver, Raymond Coster, testified that he had just passed the barricade in the street when he heard a passenger call out, “A lady fell, stop the bus.” He further testified that the bus was going “extremely slow.”

Although a public carrier is not an insurer of its passengers’ safety, it is required to exercise the highest degree of vigilance, care and precaution for the safety of its passengers and is liable for the slightest negligence which causes or contributes to an injury. Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963); Duplessis v. New Orleans Public Service, Inc., 354 So.2d 768 (La.App. 4th Cir. 1978); Orr v. New Orleans Public Service, Inc., 349 So.2d 417 (La.App. 4th Cir. 1977); Campo v. George, 347 So.2d 324 (La.App. 4th Cir. 1977). The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case. Wise v. Prescott, supra; Duplessis v. New Orleans Public Service, Inc., supra; Campo v. George, supra. To escape liability, the carrier must convincingly overcome the prima facie showing by evidence that it was free from fault. King v. King, 253 La. 270, 217 So.2d 395 (1968). “Any negligence, however slight, subjects the carrier to liability to a passenger, even assuming that the concurring negligence of a third-party contributed primarily to the accident.” Young v. Fryoux, 222 So.2d 638 (La.App. 4th Cir. 1969).

Appellant’s contention that Ms. O’Neal’s failure to hold the handrail was an intervening and superseding cause is weak. The trial court made no finding of fault on her part. Even had it done so, appellant would not have been exonerated from liability.

“ ‘Where the negligent conduct of the actor creates or increases the foreseeable risk of harm through the intervention of another force, and is a substantial factor in causing the harm, such intervention is not a superseding cause.’ ” Restatement (Second) of Torts (1965) § 442A, quoted in Titard v. Lumbermen’s Mutual Casualty Company, 282 So.2d 474 (La.1973).

See also, McCormick v. Firestone Tire & Rubber Co., 328 So.2d 911 (La.App. 4th Cir. 1976), writ refused La., 332 So.2d 862; Waggenspack v. New Orleans Public Service, Inc., 297 So.2d 733 (La.App. 4th Cir. 1974), writ refused La., 302 So.2d 15; Dixie Drive It Yourself System v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Causation is a question to be determined by the trier of fact. It is well-settled that in making factual conclusions based on witness credibility, as in this case, the findings of the trier of fact will not be disturbed on appeal except on a showing of manifest error.

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review . Canter v. Koehring Company, 283 So.2d 716 at 724 (La.1973); see also, Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

We find no manifest error in the conclusions of the lower court. Accordingly, the decision of the trial court is affirmed.

AFFIRMED.


author: REDMANN, Judge.

text:
    VETERANS ELECTRICAL SERVICE, INC. v. ROBLEY J. GELPI AND SONS, INC.
    No. 9572.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 22, 1979.
    Irving A. Koch, Nelson, Nelson & Lombard, Ltd., New Orleans, for plaintiff.
    Henry O’Connor, Jr., Steég & O’Connor, New Orleans, for defendant.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

This appeal by defendant cost-plus contractor and its answer by plaintiff electrical subcontractor question the measure of payment due for wiring a building using wire of lower current-carrying capacity than that specified, in virtually every one of the 200 or so circuits, requiring either replacement of wire (and sometimes of conduit) to raise capacity or else replacement of circuit breaker to make the circuit safe.

Defendant’s principal argument is that this is not a case of substantial performance, in which plaintiff recovers contract price less cost of remedying deviations from the contracted performance. Defendant argues that plaintiff should recover nothing (beyond the progress payments already made) because of lack of proof of quantum of unjust enrichment, if any. Alternatively, defendant argues that it is entitled to deduct from the contract price the full cost of bringing the circuitry up to specified capacities notwithstanding that in half the circuits it did not do so.

Plaintiff’s principal argument is that its written bid did not form the basis for the final contract, which was only for a safe electrical system; the original plans were for a two-story building and they were not revised for the one-story building that was built, and the electrical circuitry had other changes, affecting even the service connections to the public source. Plaintiff contends that it did in all respects supply the safe system bargained for, as well as electrical design services in some instances, and that it should collect the contract price. We disagree, and affirm the trial judge’s conclusion that the contract was embodied in the written bid and acceptance.

We agree with defendant that this is not a case of substantial performance, and therefore plaintiff is not entitled to contract price less cost of curing defects. Yet we agree with the trial judge that, because of the absence of more direct evidence of the value of the installed circuitry and, more important, because the contract price was so remarkably low (about two-thirds of the bid of defendant’s usual electrical subcontractor), contract price less certain adjustments is a fair mechanism for fixing the quantum of unjust enrichment in this case. The reasonable value of plaintiff’s performance^ — -to which alone plaintiff is entitled on the theory that otherwise defendant would be unjustly enriched, La. C.C. 1965 — would necessarily exceed that concededly low contract price less adjustments for defects.

We also agree with defendant that the correct measure of reduction of the price of a defectively performed contract would ordinarily be the cost of curing defects. There can be, however, a serious problem of unjust enrichment when the “defect,” howsoever pervasive, is a noncompliance in a nonessential term and the obligee elects not to cure the defect yet wants credit for the cost of cure. Suppose a painter contracts to paint a house yellow, or with a certain quality paint, but paints it white, or with a different quality: can the owner both (1) elect not to repaint and (2) refuse to pay on the ground that the cost to repaint equals the contract price? Or suppose a builder agrees to build a house with a specified color or quality brick exterior and builds with another brick: could the owner elect to keep the wrong brick and also claim credit for the cost of rebricking? Would such an owner not be taking the benefit of the contractor’s work and material without paying its reasonable value? Is that not unjust enrichment? If we add that the contractor had deliberately used the wrong brick, does that aggravating circumstance change the fundamental unfairness of keeping the substitute work without paying for it? Does that circumstance make the enrichment not unjust?

Our situation is similar to the case last supposed in some respects. The contractor and apparently the owner, working with a cost-plus contract, having concluded that certain circuits were specified at a higher amperage than necessary, have elected to keep the lower-amperage wiring supplied for certain circuits (changing only their circuit-breakers); yet the contractor asks credit for the cost of replacing the wiring. Perhaps it is fairer to say that the contractor asks that the subcontractor be denied recovery because of deliberately using aluminum instead of twice-as-expensive copper in a calculated and substantial breach of contract.

We reply that the choice of remedy was the contractor’s. The contractor might have elected the equivalent of performance of the contract, by replacing all circuitry to upgrade it to specifications and deducting the reasonable cost of replacement from the contract price. But our cost-plus contractor (apparently with the consent of the owner) elected instead to forego performance of the contract by electing to retain many of the circuits the subcontractor supplied that are substantially below contract specifications. The result may well be that the contractor did not owe the contract price because of the subcontractor’s substantial breach; but it does owe the reasonable value of the subcontractor’s retained work because otherwise it (or the owner) would be unjustly enriched. It is just that an owner should have, and pay only once for, work that he has contracted for, and thus he does not pay for both the original misperformed work and the redoing of it. It is thus just that the loss of the misperformed work fall on the misperformer. But it is not just, if an owner elects to keep the misperformed work, that he should not pay at all, not for the misperformed (but accepted) work and not for redoing it (because he does not have it redone). It is not just that the misper-former be charged with the loss of the misperformed work when there is no loss. The same considerations exist as to the 94 circuits plaintiff agreed to wire with copper wire but deliberately wired instead with copper-clad aluminum. We therefore conclude that defendant contractor (who is being paid cost-plus by the owner, who in turn receives the benefit of plaintiff’s work) must pay the reasonable value of plaintiff’s retained work, and is not entitled to credit for the cost of redoing work that was not and is not to be redone.

The evidence in the record is not wholly satisfactory for a determination of the reasonable value of the retained work. One who contracted for a copper 20-ampere circuit but receives an aluminum 15-ampere circuit is not enriched by the contract price less the difference in cost of the wire. That measure would give the bad performer a great percentage profit than the good performer. The contract price includes an element for overhead and profit usually based on a percentage of total cost of labor and material; thus, for example, 20% for overhead and profit would add $200 to a price based on $1,000 cost of copper wire, but only $100 to the $500 cost of the much cheaper aluminum wire. If the bad performer retained the $200, he would make 40% on the $500 instead of the 20% bargained for. Thus the subcontractor is not only not entitled to the price of copper, but also not entitled to overhead and profit percentages applied to the price of copper.

In our case we conclude that, because the original contract price here was already as low as one could hope to find, the elimination of the extra cost of copper or other wire specified but not provided (including extra overhead and profit) brings the price down to a price that any reasonable party would pay for the lower-capacity, aluminum-wired circuits. Even that price might be questionable if it includes profit to the subcontractor on the copper-clad substituted for the specified copper in an attempted fraud, and profit on the labor used to install the deliberately substituted wire. However, the basis for denying all profit in such a case is the ancient maxim that no one should profit by his own wrongdoing and, because of the circumstance that we oblige plaintiff to pay for the necessary new circu-itbreakers in all of the circuits that were to be copper, plaintiff loses far more than any profit he might otherwise have made on the substituted aluminum and its labor. Accordingly plaintiff has no profit in those circuits.

We sympathize with defendant’s objection to paying any profit whatsoever to a subcontractor who deliberately and deceitfully breaches a contract while making it appear that he has performed. (There was testimony by a former employee of plaintiff that he was instructed to burn the cartons marked “copper-clad” so that defendant’s supervisor would not see them; even more telling is that plaintiff consistently billed defendant for copper but used copper-clad aluminum on extra work on the job.) As we have just noted, however, there remains no profit on the circuits that were to be copper. (There was no similar bad faith by plaintiff in the other circuits; it used the wrong gauge wire by misreading plans.)

We conclude that, from the evidence available, the fairest approximation of the value of plaintiff’s performance is the remarkably low contract price reduced by (1) all costs of upgrading to specifications those circuits that were upgraded; (2) all costs of making safe those circuits that were not upgraded to specifications; and (3) differences in cost between wire and conduit specified and that supplied, together with estimated overhead and profit on those differences.

Defendant argues that, as a general contractor, it should also recover 20% overhead and profit on all costs of curing defects. For example, in item 2 the subcontractor charged $1,051.50 for material, $651.45 for labor, $275.44 for overhead and $197.83 for profit, for a total of $2,176.22, upon which defendant seeks to charge an additional 20% or $435.24 “overhead and profit” for itself.

Defendant is entitled to employ a subcontractor to cure the defects; it is not obliged to employ electricians or to buy materials itself. But when the subcontractor adds charges for overhead and profit to the cost of material and labor, that constitutes the total cost of curing the defects and defendant is not entitled to any more. See Louisiana Power & L. Co. v. Smith, La.App. 4 Cir. 1977, 343 So.2d 367, for discussion of the general problem of overhead as an element of damages.

We discuss the individual circuit problems in cost to cure or other adjustment in an appendix.

Plaintiff finally argues that the judgment errs in awarding interest from judgment rather than from judicial demand. The basic rule is that interest is due from the time the principal payment is due, C.C. 1938; Paul M. Davison Petr. Prod. v. L. T. Brown Contr., La. 1978, 364 So.2d 583. However, Succession of Butler, La. 1974, 294 So.2d 512, holds that the quasi-contrae-tual payment due to avoid unjust enrichment is not due, within C.C. 1938, until judgment.

The judgment on the main demand is amended by increasing its principal by $2,891.04 to $10,847.98 and it is otherwise affirmed. Costs of this appeal are to be divided equally.

APPENDIX

1.Main panel to kitchen panel plans required, in aluminum equivalent, No. 2/0 THW and plaintiff used #1, at a cost differential of $41.50. Defendant replaced this circuit using a subcontractor whose labor cost was $289 and who charged 15% overhead on labor and material plus 10% profit on labor, material and overhead, or a total of 26.5% for overhead and profit. This circuit presents a special problem, however, in that defendant decided to replace not with 2/0 but 4/0 aluminum. While defendant’s exhibit and the trial court’s judgment properly deducted only the excess cost of 2/0 aluminum, the judgment by oversight deducted the entire amount of the subcontractor’s overhead and profit, including part based on the more expensive 4/0 wire. Defendant’s exhibit shows the cost of 4/0 was $347.08 and that of 2/0 was $112.04, or an excess cost of $235.04 of which 26.5% is $62.29. We therefore increase the judgment by that amount.

We are aware that, because the plans were wrong, defendant would have had the cost of labor to replace the wire with 4/0 aluminum even if plaintiff had installed 2/0 aluminum as the plans required. It is in this instance (and another) that we deem it decisive that plaintiff did not perform as it promised: had it done so and defendant still had to expend labor to rewire for higher capacity, plaintiff would be entitled to its pay, notwithstanding that the defendant kept no benefit from that performance. But, since plaintiff did not perform as promised, and defendant kept no benefit from the substandard performance, plaintiff is not entitled to any pay for its labor.

2. In room air conditioner circuits, because over 20 amperes, aluminum could be substituted. But plaintiff used the same gauge and, moreover, used a conduit too small to accept the larger gauge aluminum required to give the capacity. Defendant had therefore to replace with copper. The cost of doing so was less than replacing both wire and conduit and it was properly deducted.

3. Similarly other air units Nos. 2 and 4 required rewiring at a cost of $82.48 which was correctly deducted. By oversight the judgment also deducted $16.50 contractor’s profit which is not recoverable and we therefore further increase the judgment by that amount.

4. As in item 1, defendant’s rewiring to the KP panel raised capacity beyond design, but plaintiff is nevertheless not entitled to its labor cost (or overhead and profit) for installing wire not of any value to defendant and not capable of carrying the originally specified current. By error, however, the judgment charged overhead and profit on all material, which included doubled-capacity wire and circuit breakers. Defendant’s exhibit shows the cost of the correct wire would have been $99.09 ($50.59 plus $48.50) while the cost of the doubled-capacity wire plus circuit breakers was $1,536.09, or an extra $1,437 on which plaintiff should not pay overhead and profit of $380.81, by which amount we accordingly increase the judgment. (We note also the problem that charging plaintiff 100% of labor costs ignores that some labor went to changing the two three-pole circuit breakers. However, we view that as probably a minimal part of labor costs; see item 9, in which 102 smaller, mostly single-pole breakers were changed for less than $284 of labor. Furthermore, we place the burden of proof of the value of its services on plaintiff although the paucity of evidence obliges us to work backwards from the contract price. We therefore disregard this problem.)

5. As in item 3, we eliminate contractor’s profit and overhead of $3.32 on replacing a ballast.

6. Cost of replacing undersized conduit with that specified by plans is chargeable to the subcontractor.

7. We agree that the contractor did not prove entitlement to deduct an estimate of the value of the subcontractor’s warranty on fixtures.

8. Completion of contract as to hanging 27 light fixtures is deductible; the contractor had the right to refuse to allow plaintiff to complete because of plaintiff’s breach.

9. This item includes the 94 20-ampere room circuits on which copper was promised but copper-clad aluminum was deliberately supplied. On learning that 15 amperes would suffice for these circuits’ needs, defendant (and, presumably, the owner for whom defendant acted as a cost-plus contractor) elected, as the “easiest and least costly” remedy, to replace the circuit breakers with lower-capacity ones. The trial judge charged plaintiff with the $1,013.25 differential between copper and copper-clad wire (but not overhead and profit on that differential), plus the $1,028.88 cost of installing the necessary 102 small circuit breakers. We further disallow overhead and profit on the $1,013.25 differential, estimated at 20% or $202.65. (Plaintiff worked for 15% or less on extras; the substitute subcontractor’s charges were 26.5%. We elect a middle course of 20%.)

10.Sub-feeders from main to subpanels employed 4/0 THW aluminum which should have been the heavier gauge 300 MCM, and also used two- instead of two-and-a-half-inch conduit. However, because defendant elected not to change these sub-feeders, the judgment awarded only the difference in material cost. We hold that the subcontractor cannot be paid for overhead and profit on a material cost he did not expend and we therefore further deduct our estimate of 20% on that account. We note, however, that defendant’s calculation of the price difference is erroneous because it prices 4/0 at $131 (apparently from a price estimate of a few months earlier) and 300 MCM at $610 with a difference of $479 per 1000 feet. The price list in evidence prices them at $383.61 and $610.25, with a difference of $226.64. The correct difference is that between the two prices at the same time. Thus defendant overstated the price difference by $252.36 per 1000. Total footage is 2,145 and the total overstatement of price difference is $541.31, by which we increase plaintiff’s judgment. Similarly, the list that prices 750 MCM at $1,286, as does defendant, prices 500 MCM at $878 for a difference of $408 while defendant priced it at $370 for a difference of $916, making defendant’s figure an overstatement by $508. Only 92 feet are affected, making the overstatement $46.74, by which we increase the judgment. On the other hand defendant understates conduit price differentials (except as to 23 feet of three-inch whose cost may be wrong but whose replacement cost is unclear). Defendant credits two-inch conduit at $137.45 and would charge for 2.5-inch at $196 per hundred feet, while the price list shows $120.20 and $196, indicating an understatement of price difference of $17.26 for a total understatement of $123.41 on 715 feet of conduit, by which amount we reduce the judgment. We would thus preliminarily reduce the judgment’s deduction on this item by $464.64, from $1,609.78 to $1,Í45.14. Then, denying plaintiff our estimate of overhead and profit of 20% on this $1,145.14 of materials supposed to have been but not supplied, we increase that deduction by $229.03 to $1,374.17, for a net increase to the overall judgment of $235.61.

11. The automatic transfer switch was offered for a price of $1,500 by plaintiff’s proposal. Irrespective of what plaintiff paid for the switch, plaintiff is entitled to the contract price.

12. These matters were treated as defense to claims for extras.

13. The lighting fixture “allowance” of $4,500 was underexpended by the $391.50 allowed. Although plaintiff’s attempt to charge 16 or 20% over cost in two instances is insupportable, defendant’s argument that it should recover overhead and profit on this $391.50 is also mistaken. Had defendant elected higher-priced fixtures it would not have paid overhead and profit on the excess over $4,500. The bargain was that plaintiff would install the fixtures (for part of the base price), and that defendant would pay for the fixtures themselves, although an “allowance” of $4,500 was stated, not included in the base price. Plaintiff owed nothing but the installing. To the extent it breached its obligation to install it is being charged with the $157.65 cost of the installation by another in item 8.

14. 15 and 16. The missing nurse call cords and sterilizer wiring and the broken fixture glass were properly charged to plaintiff.

17. Defendant’s charge of $20 hourly for its employee’s time in inspection of electrical work and overseeing correction — like its already-rejected charge for overhead and profit on the cost-to-cure is not recoverable under Louisiana Power & L. Co. v. Smith, supra. If the contractor had caused the subcontractor to replace the wire, the contractor could not (in the absence of some contractual agreement) charge the subcontractor for “supervision” of the corrective work. Perhaps the defective work would not have occurred had the contractor properly supervised the original subcontractor, and it could be argued that the contractor has properly supervised only once, for which it has been paid by the owner. But perhaps the most fundamental reason is that the contractor’s charge for overhead and profit pays for the supervision it gives to a job, including supervision of any necessary correction of defective work; the subcontractor does not pay the contractor to supervise, but owes only performance of. the work as contracted, and if a first subcontractor’s work is defective then he may owe the price of a second subcontractor’s redoing the work but he does not owe supervision for the second subcontractor. Thus we must increase plaintiff’s award by the $2,601.50 the trial judge allowed.

Extras are, by now, largely undisputed. We do, however, add, to the deduction of $1,587.23 for charging for copper while using aluminum (and other overcharges for material), the 13% tax and profit that plaintiff charged on material, or $206.34.

The total changes are thus $62.29 + 16.50 + 380.81 + 3.32 + 235.61 + 2,601.50, a total of $3,300.03 in plaintiff’s favor, and $202.65 + $206.34 in defendant’s favor, for a net increase in the judgment of $2,891.04.

      . Not all pre-contract negotiations are detailed, but plaintiff submitted an offer in the form of a “proposal” to furnish labor, tools and material for the electrical installation for the nursing home “as shown on [Plans] Sheets 13, 14, 15 and 16,” with certain alternates at fixed prices to be added to the base bid (such as the automatic transfer switch in dispute) and “allowances [e. g., for lighting fixtures] which are not [sic] included.” The proposal stipulated “copper wiring on all 20 Amp. Circuits. Larger feeders are aluminum.”
      The proposal stipulated it might be withdrawn if not accepted within ten days. Plaintiff argues that, with skyrocketing prices for copper wires, it could not hold to that bid using copper. However, when over two months later defendant in writing “awarded the contract” to plaintiff at the price plaintiff bid but stipulated that T.V. antenna outlets be added, plaintiff did not reject the acceptance of its proposal either as untimely, see C.C. 1801-1802, or as not “in all things conformable to the offer”, C.C. 1805. To the contrary, plaintiff, accepted defendant’s written modification (“a new offer”, C.C. 1806) by beginning to perform, without any written indication that plaintiff, too, desired to modify its original offer by eliminating copper wire in 20-ampere circuits. Despite plaintiffs officer’s testimony that defendant verbally agreed to “copper-clad” aluminum wire (aluminum wire with a coating of copper) in place of copper, we conclude that the trial judge was correct in determining that the contract between the parties is specified by plaintiffs proposal, modified by defendant’s “award” into a counteroffer by defendant which was accepted by plaintiff.
      Some unclarity exists in the contract and has had to be resolved by parol.
      First, the sheets of the plans to which alone plaintiffs proposal referred (without referring also to the separate document “Specifications”) do not in words describe either copper or aluminum wire, although the Specifications expressly require all copper. Nevertheless plaintiffs argument that the plans’ requirements were met by supplying aluminum of the gauge specified is unacceptable. In most instances the plans’ statement of an amperage capacity of circuit-breakers indicates that the wires of the stated gauge must be copper because that gauge aluminum cannot carry that amperage safely. There is also expert testimony that, in the absence of an indication by the plans one understands that copper is the standard material or that, at least, one must refer to the Specifications. Furthermore, plaintiffs proposal stipulated that copper was to be used in 20-ampere circuits, impliedly recognizing that the twice-as-expensive copper was the standard material, although the proposal further declared “Large feeders are aluminum.” We conclude that the plans themselves call for copper in all cases, although plaintiffs agreement was to substitute aluminum in some cases.
      The second unclarity arises from “Large feeders are aluminum.” To what extent was aluminum substitution agreed upon? Although “large feeders” may be understood by some to comprise only the wires from the public supply lines to the user’s main panel, defendant’s officer’s testimony is that, at a pre-contract discussion of the correctness of plaintiffs markedly low bid, “we agreed on aluminum sub-feeders.” We further conclude, in view of plaintiffs low bid and its specification of copper only for 20-ampere circuits, that the parties’ contract was for aluminum in branch circuits above 20 amperes.
      The third unclarity is that “feeders are aluminum” could provide aluminum equivalent to the plans’ copper wire in size (with lesser amperage capacity than copper) or in amperage capacity (with a larger size than copper). Because the purpose of electric wires is to carry current, an otherwise unspecified proposal to substitute aluminum for copper must be understood to substitute aluminum of equivalent current-carrying capacity. The testimony of several experts was that one substitutes aluminum larger than the size specified for copper, in order to obtain equivalent current capacity. There was thus sufficient evidence to support the trial judge’s conclusion, implicit in his treatment of individual circuits, that the pure or copper-clad aluminum wire should have been larger than the size specified for copper.
      Plaintiff supplied aluminum wire (pure or copper-clad), the same size (except for the main feeders) as specified for copper, throughout the entire job. (The aluminum main feeders’ capacity far exceeded the specified copper’s.) Thus plaintiff breached the contract not only by installing copper-clad aluminum in 20-ampere circuits, for which he had promised copper, but also by installing lower-capacity wiring virtually throughout.

        The trial judge correctly disregarded plaintiffs officer’s unsupported theory that copper-clad aluminum has significantly greater current capacity than pure aluminum because of “skin effect,” even, plaintiff says, at the low frequency of 60-cycle alternating current. The only superiority of copper-clad over pure aluminum established in this record is in electrical connections; its surface avoids the conductivity problems pure aluminum’s oxidation causes.


text:
    Linda T. GALYEAN v. William T. GALYEAN.
    No. 51077.
    Supreme Court of Mississippi.
    March 21, 1979.
    Rehearing Denied May 2, 1979.
    Self, Jordon & Jones, Robert D. Jones, Meridian, for appellant.
    Richard E. Wilbourn, Don 0. Rogers, Meridian, for appellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

AFFIRMED.


text:
    Ray R. EAST, Deceased, DEPENDENTS OF, v. LIBERTY SUPER MARKET # 78 and the Western Casualty & Surety Company.
    No. 51015.
    Supreme Court of Mississippi.
    March 28, 1979.
    Dixon L. Pyles, Jackson, for appellants.
    Cox & Dunn, William H. Cox, Jr., Jackson, for appellees.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   Appeal from Circuit Court, Rankin County; Rufus H. Broome, Judge.

AFFIRMED.


author: SUGG, Justice, for the Court:

text:
    BUILDERS SUPPLY COMPANY OF HATTIESBURG et al. v. PINE BELT SAVINGS & LOAN ASSOCIATION et al.
    No. 51067.
    Supreme Court of Mississippi.
    April 4, 1979.

      Moore, Jones & Moore, H. A. Moore, III, Travis & Travis, J. Kearney Travis, Jr., Hattiesburg, Van C. Temple, Jr., Eubanks, Temple & Hudson, Purvis, for appellants.
    Barefield, Riley & Evans, Stone D. Bare-field, Hattiesburg, Joseph E. Brown, Jr., Asst. U. S. Atty., Robert E. Hauberg, U. S. Atty., Jackson, Wynette J. Hewett, Washington, D. C., for appellees.
    Before SMITH, SUGG and GOFER, JJ.
   SUGG, Justice, for the Court:

This appeal involves three questions: (1) Was the holder of the second deed of trust entitled to payment of its junior lien out of any surplus arising from a sale under a first deed of trust? (2) Were the homestead exemptionists entitled to an exemption of $15,000 under Miss.Gen.Laws, Ch. 323, Sec. 5 (1970), which increased the exemption from $5,000 to $15,000? (3) Was the United States entitled to apply exempt proceeds to satisfy a federal tax lien?

Mason M. Baker and wife, Charlene P. Baker, executed a deed of trust on May 21, 1965, securing a debt due Pine Belt Savings & Loan Association. After default, the property described in the deed of trust was sold at a foreclosure sale for $29,882.17 on December 11,1975. The trustee applied the proceeds to the debt due Pine Belt, the trustee’s fee and expense of sale, leaving a surplus of $15,911.37.

Three classes of creditors claimed the surplus. (1) Builders Supply Company claimed part of the surplus to satisfy the amount due on its second deed of trust. (2) Thirteen judgment creditors claimed the surplus to satisfy their judgments aggregating $15,-784.48 which were enrolled on varying dates from February 5, 1969 to July 17, 1970. (3) The United States claimed the surplus proceeds to satisfy its tax lien in the amount of $17,050.82 which was filed on the 6th day of February, 1975. In addition, the Bakers claimed $15,000 of the surplus as a homestead exemption.

I.

WAS THE HOLDER OF THE SECOND DEED OF TRUST ENTITLED TO SATISFY ITS JUNIOR LIEN OUT OF THE SURPLUS ARISING FROM THE SALE UNDER THE FIRST DEED OF TRUST?

Mr. and Mrs. Baker executed a second deed of trust on the 4th day of October, 1968, which secured an indebtedness to Builders Supply Company. The chancellor held that the balance due on March 16, 1977, on the Builders Supply debt was $10,-319.22, which was itemized as follows:

Principal $5,500.00
Interest 3,473.25
Attorney’s Fees (15%) 1,345.98
Total.$10,319.23

The chancellor held that the foreclosure of the Pine Belt’s senior deed of trust terminated the lien created by Builders Supply second deed of trust, and that Builders Supply was not entitled to satisfy its lien out of the surplus arising from the foreclosure of the senior deed of trust. This holding by the chancellor was erroneous because we stated in O’Reilly v. Hendricks, 10 Miss. 388, 2 S&M (1844), the following:

As a general rule a junior lien entitles the holder to the residue of the encumbered property, after an older lien has been satisfied. In equity the junior claimant would be entitled to the surplus of money arising from a sale under the older lien. (10 Miss, at 400).

In Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 510 (1931), we stated:

The general rule is that, where a surplus remains after satisfying a senior mortgage, it should be applied on the junior mortgage. O’Reilly v. Hendricks, 2 Smedes & M. 388. (162 Miss, at 136, 137 So. at 514).

We have not departed from the rule announced in O’Reilly v. Hendricks, supra, that the surplus arising from a sale under a senior lien should be applied on a junior lien. We therefore reverse the chancellor on this issue. On remand, the trial court shall allow Builders Supply, from the surplus, the sum of $10,319.23 which was due it on March 16, 1977, plus interest at the rate of 7V2% from March 16, 1977, until paid on the principal of $5,500 and attorney’s fees of 15% on the additional interest as provided in the note.

II.

WERE THE BAKERS ENTITLED TO A HOMESTEAD EXEMPTION OF $15,000?

Miss.Gen.Laws Ch. 323, Sec. 5 (1970), was approved April 6, 1970, effective July 1, 1970. Among other things, the act increased the homestead exemption from $5,000 to $15,000. The act provided:

Section 7. Nothing in this act shall affect any execution or attachment upon which levy has been made and under which an execution sale or attachment is pending at the time of the effective date of this act, but such execution or attachment may proceed in all respects according to the law prevailing at the time such levy or attachment is made.
Section 8. This act shall not affect any matter in any court of this state that is pending at the time this act takes effect.

Sections 7 and 8 of the act indicate that the legislature recognized that it could not enlarge the exemptions of property from liability to existing creditors thereby impairing the obligations of contracts prohibited by the federal and state constitutions. It is firmly settled that any law which materially increases the amount of exempt property withdrawn from liability for the debts of the owner of the property impairs the obligation of existing contracts and is, as to existing creditors, unconstitutional because an exemption may not be applied retroactively. Odom v. Leuhr, 226 Miss. 661, 85 So.2d 218 (1956); Johnson v. Fletcher, 54 Miss. 628 (1877); Lessley v. Phipps, 49 Miss. 790 (1874).

We held in Odom that the landowner in that case was entitled to the increased exemption because the judgment in question was not obtained until after the effective date of the increase in the homestead exemption. Odom did not involve an existing contract but was an action for damages for a tort committed by the landowner. Although the cause of action accrued and suit was filed in Odom before the effective date of the increased homestead exemption, we held this fact did not bring the case within the prohibition of the federal and state constitutions against the legislature passing a law impairing a contract.

Odom reaffirmed the rule stated in Johnson v. Fletcher, supra, that the execution rights of a judgment creditor become fixed when he Obtains his judgment and the legislature cannot increase the exemption as to existing debts.

In this case, all of the judgments were obtained and enrolled before July 1, 1970, the effective date of the amendment increasing the homestead exemption, except the claim of Atlas Brick Company. The judgment in favor of Atlas Brick Company was rendered July 17, 1970, in the Circuit Court of Lamar County. The judgment recites that it was a suit on a promissory note and that personal service of process was had on the defendant, Mason Baker, returnable to a prior term of the court. The claim of Atlas Brick Company was pending on the effective date of the act increasing the homestead exemption so the increased exemption did not apply. (Section 8, supra.)

We therefore conclude that the $5,000 exemption which existed before the amendment was applicable to the claims of all the judgment creditors and the chancellor erred in holding that the landowners were entitled to a homestead exemption of $15,000.

III.

IS THE UNITED STATES ENTITLED TO APPLY EXEMPT PROCEEDS TO SATISFY A FEDERAL TAX LIEN?

The chancellor held that the United States was entitled to recover the amount of the homestead exemption to satisfy its tax lien. Section 6334(c) of the Internal Revenue Code of 1954 (26 U.S.C.) provides that the only property exempt from a levy to satisfy unpaid federal taxes is the property specified by Section 6334(a). Section 6334(a) does not recognize homestead exemption. The appellants have not challenged the correctness of this holding of the chancellor. Accordingly that part of the decree specifying that the United States is to receive the amount of the homestead exemption is affirmed; however, since we have held that the homestead exemption of $5,000 applies rather than $15,000,' recovery by the United States will be limited to $5,000.

CONCLUSION

The chancellor will order distribution of the surplus as follows: (1) the claim of Builders Supply in the amount heretofore set forth; (2) $5,000 to the United States; (3) any balance remaining to be distributed to the judgment creditors in accord with the final decree of March 21, 1978. We are unable to ascertain the balance remaining for distribution to the judgment creditors because the surplus proceeds were invested and the amount of interest accruing is not shown by the record; therefore, it is necessary to remand for entry of a final decree of distribution to the judgment creditors.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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

      . Art. 1, § 10 '! 1 United States Constitution and Art. 3, § 16 Mississippi Constitution of 1890.


text:
    FIRST MONEY, INC., formerly Money, Inc., d/b/a E-Z Finance Plan and Gerald Schaar v. Clifford C. FRISBY.
    No. 50969.
    Supreme Court of Mississippi.
    April 4, 1979.
    Rehearing Denied May 2, 1979.

      Eaton, Cottrell, Galloway & Lang, James B. Galloway, Gulfport, for appellant.
    Denton & Persons, William L. Denton, Biloxi, Ray Mitchell, Ocean Springs, for ap-pellee.
    Before PATTERSON, C. J., and BROOM and BOWLING, JJ.
   PATTERSON, Chief Justice, for the Court:

This is an appeal from a judgment of the Circuit Court of Harrison County, Second Judicial District, where a verdict of $35,000 was awarded Clifford Frisby for damages arising out of a controversy concerning a real estate financing scheme.

The amended declaration of Frisby, ap-pellee, consisted of four counts, the first for breach of loan commitment, the second for negligent misstatements, the third for breach of fiduciary duties and the fourth for fraud. A demurrer was sustained to Count IV and Count III was dismissed upon the defendants’ motion for a directed verdict. The theories expressed in Counts I and II of the declaration and the testimony related thereto were submitted to the jury for its resolution and when the verdict was returned for the plaintiff, the defendants moved for a judgment notwithstanding the verdict and for a new trial or a remittitur, all of which were overruled.

The amended declaration, after identifying the parties and alleging the jurisdictional necessities, alleges in Counts I and II the following:

FIRST CAUSE OF ACTION: BREACH OF LOAN COMMITMENT
I.
That the money which was to be used by the Plaintiff was for the particular purpose of acquiring title to said thirty (30) acre tract and this particular purpose was known at the time by the Defendants who contracted to make said loans.
II.
That as a direct and proximate result of the breach of said loan commitments by the Defendants, the Plaintiff suffered an ascertainable amount of loss of profits.
III.
That said thirty (30) acre tract of property lost by the Plaintiff as a result of the breach of contract by the Defendants is that certain parcel of land (description omitted).
IV.
That the Defendants’ breach of contract was willful, malicious and intentional and constitutes fraudulent, oppressive, and outrageous conduct on the part of the Defendants toward the Plaintiff entitling Plaintiff to recover from the Defendants punitive damages in addition to actual damages.
WHEREFORE, Plaintiff, CLIFFORD FRISBY, demands damages as follows:
1. Compensatory damages in the sum of Five Hundred Thousand Dollars ($500,-000.00).
2. Punitive damages in the sum of Five Hundred Thousand Dollars.
COUNT II: NEGLIGENT MISSTATEMENT
I.
That the Defendant, by and through its agent, acting within the scope of his authority, supplied to the Plaintiff, CLIFFORD FRISBY, false information for guidance of his business transactions, and that Plaintiff, CLIFFORD FRISBY, justifiably relied upon said information to his pecuniary loss, damages for which he is entitled to sue and recover.
II.
That the Defendant knew or in the exercise of ordinary care should have known that it was supplying false information to CLIFFORD FRISBY.
HL
As a direct and proximate result of said acts of the Defendant as aforesaid, Plaintiff suffered pecuniary loss.
WHEREFORE, Plaintiff, CLIFFORD FRISBY demands damages as follows:
1. Compensatory damages in the amount of Five Hundred Thousand Dollars ($500,000.00).
2. Punitive damages in the amount of Five Hundred Thousand Dollars ($500,-000.00).

In compliance with a motion for a bill of particulars to Count II for negligent misstatement, the plaintiff responded with the following:

2. Response to Number 2(a): The nature of the false information given for guidance of Plaintiff’s business transactions was the general plan and scheme set forth by agents of the Defendant for the acquisition of the thirty acre tract in issue. The information was false in that Defendant had no intention of following through on behalf of the Plaintiff.
Response to Number 2(b): The exact information for guidance of the Plaintiff’s business transactions which is alleged to be false is contained in Plaintiff’s deposition and answers to interrogatories. Specifically, the Defendant promoted and encouraged the purchase of the thirty acre tract in question through the Plaintiff, assuring him that loan monies would be available until the entire tract was purchased, when in fact, the Defendant had no intention of allowing Plaintiff to proceed to the completion of the project.
Response to Number 2(c): Approximately $500,000.
Response to Number 2(d): The name of the person who specifically “supplied the false information is Gerald Schaar. The false information was supplied throughout the period of time Plaintiff was dealing with the Defendants in the effort to purchase the thirty acre tract in question. The place the false information was supplied was the Biloxi address of the Defendants.

The testimony reveals that Frisby first came into contact with Money, Inc., d/b/a E-Z Finance Plan (hereinafter E-Z), on May 2, 1974, through his father who had met Gerald Schaar, E — Z’s agent, when he accompanied appellee’s sister to E-Z’s office to obtain a loan. The conversation, aside from their business, moved to the growth of North Biloxi and the increasing values of property. Plaintiff’s father informed Schaar that his son owned property in the area. At the time Schaar suggested the possible acquisition of the properties adjoining that of the appellee and during the afternoon drove to the place of business of Frisby for a discussion with him. A plan emerged whereby Frisby was to attempt the purchase of the lots adjoining his in furtherance of their mutual thought that a consolidated tract would have a greater value for development than would a fragmented tract.

According to Frisby, Schaar represented “. . . that they had financing available, that if I could get something going as far as purchasing the additional pieces of property that I could get the financing on it,” and further, that E-Z would obtain a buyer for the entire tract within a year at a profit to Frisby. Acting on these representations, Frisby testified that he purchased several lots for $89,901.70 which were financed by E-Z. Moreover, although the loan instruments specified monthly payments, that as a part of his agreement with Schaar he was not required to make either installment or interest payments.

Difficulties arose after Frisby obtained a written commitment for the purchase of the Joe Juen property and an oral commitment for the purchase of Mrs. Joe Wood’s property, the remaining two parcels in the tract. A meeting was held with the attorney of Joe Juen to close the loan which would have secured that property, but the funds, $60,-000, necessary to close the commitment were not provided by E — Z, instead E — Z deferred on the premise that another day was needed to research the title. In the weeks following Schaar continued to give assurances that the money was available. However, none was ever forthcoming.

In early September 1974 Schaar attempted to obtain an interest in the tract of property through a real estate investment group plan proposed by Schaar whereby he and his associates would receive 40% participation in the investment. Frisby declined the proposal because he did not desire to share the fruits of his efforts with others.

Thereafter Frisby failed in his attempts with other institutions to finance the parcels previously purchased and E-Z foreclosed. Frisby was successful only in maintaining the mortgage payments on the tract that belonged to his sister. This suit, with the result stated, followed.

The appellants first contend that the trial court erred in overruling defendants’ motion to strike Count II of the amended declaration, in overruling the defendants’ motion for a directed verdict and in refusing defendants’ request for a peremptory instruction. We are of the opinion there is some merit to appellants’ argument that the demurrer or motion to strike should have been sustained. However, we think the cause should be decided on its merits and that the court erred in not sustaining the motion for a peremptory instruction at the conclusion of all of the evidence.

Although Count II is styled “Negligent Misstatement,” the governing allegations are the defendants supplied “false information for guidance of his business transactions, and that plaintiff, . . . ' justifiably relied upon said information to his pecuniary loss,” and “the defendant knew or in the exercise of ordinary care should have known that it was supplying false information to Clifford Frisby.” However, the response to the bill of particulars, a part of the declaration inasmuch as it particularizes it, states the false information was the general plan set forth by the agents of the defendant and “the information was, false in that defendant had no intention of following through on behalf of the plaintiff,” and “specifically the defendant promoted and encouraged the purchase of the 30-acre tract in question through the plaintiff, assuring him that loan monies would be available until the entire tract was purchased when in fact, the defendant had no intention of allowing plaintiff to proceed to the completion of the project.” (Emphasis added.)

As we comprehend Count II of the declaration as particularized, it alleges at best a cause of action for fraud arising out of the assurances that loan monies would be available to purchase the lots within the tract which were not fulfilled. It does not allege, except in very broad terms, what information, as distinguished from assurances, was negligently given to mislead the plaintiff. The basis for damages resulting from negligent misrepresentation is the lack of care; the basis for damages resulting from fraud is the want of honesty. See Restatement of the Law (Second) sections 549 and 552 (1977). The lack of care in misrepresentation and the want of honesty in fraudulent misrepresentation in business transactions give rise to distinct causes of action, the one in tort, the other in fraud. The present declaration, in our opinion, leaves great doubt as to whether it states a cause of action for negligent misstatement of information since the gravity of the allegations appears to charge fraud in very general terms, insufficient, we think, to withstand a demurrer. However, we fore-go the technical doubt of sufficiency on demurrer in favor of a conclusion based upon the pleadings as they are, and the evidence presented.

In McMahon v. McMahon, 247 Miss. 822, 157 So.2d 494 (1963), we held: “Before a party can claim the benefit of fraud, the party must clearly allege the facts and circumstances which constitute the fraud . . . .” (247 Miss, at 836, 157 So.2d at 501). And, in Otts Finance Co. v. Myers, 169 Miss. 407, 152 So. 834 (1934), we held: “. . . There is no sounder doctrine of law established in our courts than that he who alleges fraud must state the facts upon which the fraud is based . . . .” (169 Miss, at 413, 152 So. at 835).

Mississippi Power Co. v. Bennett, 173 Miss. 109, 161 So. 301 (1935), presented a situation in which the power company was alleged to have induced Bennett to purchase stock by representing that it would earn 6% interest and that the money invested would be refunded upon request. Bennett charged the representations were not true and that the company had no intention of carrying out the agreement and that in reliance thereon he was damaged. The Court stated:

The appellant contends that the representations relied on reduced themselves to two contractual promises: (1) A promise to pay dividends in the future; and (2) a promise or representation that in future, if and when appellee desired his money back, he could obtain it, the same as he could get it back if it were in a bank .
******
It is settled rule that a contractual promise, made with the undisclosed intention of not performing it, is fraud. . (Citations omitted) (173 Miss, at 128-9, 161 So. at 306)

There is great doubt as to whether the allegations of the declaration are sufficient to state a cause of action in tort or in fraud, but considering it sufficient to state a cause of action in tort, nevertheless, the evidence related to this theory is insufficient, even with all reasonable inferences therefrom, to have been submitted to the jury. On the other hand, if the declaration be considered to have stated a cause of action in fraud, the evidence is also insufficient to establish that the fraudulent intention existed not to provide the monies at the time of the assurances. We therefore think the trial court erred in not sustaining defendants’ motion for a peremptory instruction.

It is next contended by the appellants that the court erred in overruling their motion for a directed verdict at the close of plaintiff’s testimony and in overruling a motion for a peremptory instruction at the conclusion of all the evidence. The testimony most favorable to Frisby is that Schaar told him that if he, Frisby, could put all of the property together, E — Z would lend the necessary funds for its acquisition and would produce a buyer to acquire the tract from him for a profit. This evidence, considered in the light most favorable to the plaintiff, with all reasonable inferences, in our opinion falls short of the burden assumed by the plaintiff in proving the existence of a contract for the loan, and a breach of such commitment.

In Izard v. Jackson Production Credit Corp., 188 Miss. 447, 195 So. 331 (1940), a case where Izard claimed the existence of a contract to finance his cotton crop for the 1939 season, Izard testified that the agent of the Jackson Production Credit Corporation told him that if he, Izard, gave such agent his cotton check for the 1938 crop, financing would be available for the 1939 crop. We held the proof was insufficient to establish a contract, stating:

. [TJaking the alleged parol contract entered into between Hamilton and Izard in the most favorable light possible, it was too vague and uncertain to constitute an enforceable contract, for the breach of which damages would be enforceable.
. The contract then, upon which Izard must rely, is the bare statement — if you will apply your cotton check due you for the 1938 cotton crop, I will finance you for another year. This constituted no contract whatever to lend money to the appellant on the part of the appellee. There was no agreement as to when, in the year 1939, he would be furnished money with which to make another crop; the amount to be furnished; the rate of interest; or as to security for the advancement.
As to the enforceability of this contract, we say that it was too vague, indefinite and uncertain to constitute a valid contract and therefore cannot be enforced. In A.L.I., 1 Restatement, Contracts, § 32, the following is stated: “An offer must be so definite in its terms, or require such definite terms in the acceptance, that the promises and performances to be rendered by each party are reasonably certain.” .
. There was no enforceable contract in this case upon which damages for the breach thereof could be calculated for the reason that the contract is too indefinite to be enforced. (188 Miss, at 453-4, 195 So. at 333)

We are of the opinion the present allegations and proof are lacking in required specificity to define the nature and extent of the parties’ obligations and since this is so, there was no contract and hence no breach of it.

REVERSED AND RENDERED.

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


text:
    Raymond BIRDSONG v. TRANS-AMERICAN VAN SERVICE, INC.
    No. 51078.
    Supreme Court of Mississippi.
    April 11, 1979.

      Smith & Phillips, D. Briggs Smith, Jr., Batesville, for appellant.
    Corr, Carlson & Fleming, Larry R. Jennings, Sardis, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   ROBERTSON, Presiding Justice, for the Court:

Raymond Birdsong, the defendant in a replevin action brought by Trans-American Van Service, Inc. against him to recover a 1971 Kentucky Van, appeals from a default judgment for $21,422 rendered against him in the Circuit Court of the Second Judicial District of Panola County.

In its declaration in replevin, Trans-American set forth the value of the van as $2,000, and stated that it was “prepared to file herein a good and sufficient bond in the amount of $4,000, said amount being double the value of the personal property as alleged herein, . . .

Trans-American prayed that “this Court will award unto Plaintiff possession of the personal property described herein, or if said property be not found, a judgment for its value, together with all costs of Court accruing herein.”

Birdsong was personally served with process and upon his failure to plead or appear in response to the summons, the court on September 28,1977, rendered judgment against him for the permanent possession of the van. The order further provided:

“[I]f defendant fails to immediately relinquish possession of said personal property to Plaintiff, then Plaintiff be and it is hereby awarded an Interlocutory Judgment against Defendant, Raymond Birdsong, for $2,000.00 (said amount being the value of the personal property described in its Declaration), as well as for damages sustained by Plaintiff for the wrongful taking and detention by Defendant of said personal property; that Plaintiff be and it is hereby awarded a Writ of Inquiry on said Interlocutory Judgment for assessment of such damages to be determined by this Court; . . . ”

On December 31, 1977, the court entered this Order on its Minutes:

“On ore tenus motion of Plaintiff to set a Writ of Inquiry heretofore awarded by this Court to Plaintiff by Order dated September 28, 1977, and duly entered in the above styled and numbered cause, a Writ of Inquiry on said Interlocutory Judgment for assessment of damages sustained by Plaintiff in this cause be and the same is hereby set, in Vacation, on Monday, January 23, 1978, at 11:00 o’clock A.M., at the Yalobusha County Courthouse, Water Valley, Mississippi.”

No order changing the place of hearing the Writ of Inquiry was entered on the Minutes, but on Monday, January 23, 1978, at 11:00 A.M., the court held a hearing on the writ of inquiry in Senatobia, Mississippi, instead of Water Valley. The defendant was not present at this hearing. This Final Judgment was entered on the court’s Minutes on January 23, 1978:

“On September 28, 1977, an Interlocutory Judgment having been granted herein for Plaintiff against Defendant and a Writ of Inquiry having been awarded on said Judgment, this cause this day came on to be heard by the Court, pursuant to Order of this Court dated December 31, 1977, for the execution of said Writ of Inquiry and also upon proof heard and taken, and the Court having executed said Writ of Inquiry and having heard said proof, finds and adjudicates that Plaintiff’s damages on account of the matters and things set forth and alleged in the Declaration herein should be fixed at the sum of $21,422,00 and that a final judgment should be now entered herein. IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff, Trans-American Van Service, Inc., does have and recover of and from Defendant, Raymond Birdsong, the said sum of $21.422.00. with interest at the rate of eight percent (8%) per annum, from date of judgment until paid, and all costs of court herein expended for all of which let execution and other process of this Court issue.”

On January 30, 1978, Birdsong filed a “Motion to Set Aside Final Judgment” on the ground that the hearing on the writ of inquiry was held at a place other than that specified in the order setting the hearing, and also on the ground that in the declaration in replevin the van was valued at $2,000 and that Trans-American had only asked for the return of the van or in the alternative “a judgment for its value.” Birdsong charged in his Motion:

“That as such, this Declaration is not sufficient to support a demand or judgment in excess of the value of the trailer, which was established in the Declaration as $2,000.00.”

On February 8, 1978, at the hearing on the Motion to Set Aside, Trans-American’s attorney testified without objection that the items of damage totalling $21,422, for which amount a general judgment had been entered on January 23, 1978, were:

“$12,500.00, replacement value of the trailer; $3,500.00, value of the equipment on the trailer; $4,800.00, which was 80% of the lease value of similar equipment for ten months (total lease value is $600.00 per month); $500.00, amount necessary to pay an employee to go to Bates-ville to pick up the van; and $122.00 for incidental expenses incurred.”

The Motion to Set Aside was overruled. On February 21, 1978, Birdsong filed an additional Motion to Set Aside the $21,422 general judgment or in the alternative to conform the judgment to the proof, “making the judgment for incidental damages in the amount of $5,422.00 plus the judgment previously entered in the amount of $2,000.00 as value of the van and contents.” This Motion also was overruled.

Birdsong assigns as error:

1. The Court erred in failing to set aside a default judgment in the amount of $21,422.00 which was based on a declaration that asked for $2,000.00 damages.
2. The Court erred in failing to set aside a default judgment in the amount of $21,422.00 which included damages not claimed in the declaration.
3. The motion to set aside the default judgment should have been sustained where personal property in a replevin declaration is not individually itemized and individually valued.
4. The Court erred in failing to set aside a default judgment entered in vacation at a hearing held in Senatobia which had been set by order of the Court to be held in Water Valley.

Mississippi Code Annotated section 11— 37-101 (1978 Supp.) provides in part:

“If any person, his agent or attorney, shall file a declaration under oath setting forth:
(a) A description of any personal property;
(b) The value thereof, giving the value of each separate article and the value of the total of all articles;” (Emphasis added).

As long ago as 1918, this Court held that the value of each separate article should be given as well as the total value of all articles. In Williams v. Williams, 117 Miss. 251, 78 So. 152 (1918), this Court said:

“The affidavit and judgment were both defective because of the failure of the first to set forth and of the second to assess separately the value of each article sued for. Section 4214, Code 1906 (section 3043, Hemingway’s Code); cases cited in 3 Mississippi Digest (Bobbs-Merrill) p. 679, par. 96. We are not here called on to decide whether or not the omission from the affidavit of the value of the property would of itself alone have necessitated the reversal by the court below of the judgment rendered by the justice of the peace if the value thereof had been properly assessed in the judgment rendered by him, for, without reference to that question, the judgment should have been reversed because of the error in not assessing therein the value of the property sued for, the value of each article of which should be separately assessed.” 117 Miss, at 257, 78 So. at 153. (Emphasis added).

In McCaskill v. Little, 214 Miss. 331, 58 So.2d 801 (1952), the Court gave a default judgment against the defendant in a re-plevin action, and on writ of inquiry peremptorily charged the jury to find for the plaintiff and to assess the value of the property involved. This Court, in reversing and remanding this case, said:

“The affidavit in replevin in this case describes the property but gives no value on any item thereof nor the value as a whole; hence it does not comply with the mandatory provisions of Sections 2841 and 2842, Code of 1942. Moreover, the writ of replevin gives no value of the property, Section 2845, Code of 1942, nor does the declaration give any value of the property. In Herrington v. Stimpson Computing Scale Co., 159 Miss. 416, 420, 131 So. 878, 879, 880, we held that ‘a proper affidavit is necessary to confer jurisdiction in replevin, the absence thereof can be raised for the first time on appeal.’ This was followed in Choctaw Culvert & Machinery Co. v. McCool, 172 Miss. 1, 158 So. 796, and in Tatum v. Sciscoe, 189 Miss. 803, 199 So. 70. In the case of Ball v. Sledge, 82 Miss. 749, 35 So. 447, it was held that the affidavit, as the basis of an action of replevin, determines the jurisdiction of the court so far as it concerns the value of the property sued for, unless the plaintiff knowingly undervalued or overvalued it for jurisdictional purposes. This jurisdictional question is not raised by appellant, but it is so patent upon the face of the record before us that we cannot ignore it.” 214 Miss, at 334-35, 58 So.2d at 802. (Emphasis added).

In Ezell v. Hilton, 235 So.2d 247 (Miss.1970), in reversing a judgment for the plaintiff in replevin and remanding for a new trial, this Court said:

“In a replevin action, the value of the property is an essential part of the affidavit by which the action is begun. Section 2841, Mississippi Code of 1942 Annotated (1956) providing for the institution of a replevin suit requires an affidavit giving, among other items, the description of the property and the value of each separate article. (Emphasis added).
“In the instant case the value of the property is not given in the affidavit, the declaration, the sheriff’s return, the jury’s verdict, or in the final judgment.” 235 So.2d at 248.

Inasmuch as the value of each separate article, as required by statute, was not given in the declaration in replevin or in the final judgment for $21,422, and inasmuch as the hearing on the writ of inquiry was held in Senatobia, Mississippi, contrary to the order entered on the Minutes of the court that the hearing would be at the Yalobusha County Courthouse in Water Valley, Mississippi, the final judgment of the court for $21,422 on the writ of inquiry is set aside, and this cause remanded for a trial on the merits, after the pleadings have been properly amended to conform with statutory requirements.

REVERSED AND REMANDED.

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

COFER, J., took no part.


author: BOWLING, Justice, for the Court:

text:
    Lauree MIZELL, v. John E. BLACK et al.
    No. 51075.
    Supreme Court of Mississippi.
    April 18, 1979.
    W. S. Murphy, Robert P. Shepard, Luce-dale, for appellant.
    William T. Bailey, Lucedale, for appel-lees.
    Before PATTERSON, BROOM and BOWLING, JJ.
   BOWLING, Justice, for the Court:

This appeal is from the Chancery Court of George County. Appellant, Lauree Mi-zell, filed her bill of complaint alleging that she was the owner by adverse possession of a 78-acre tract of land rather than appel-lees, John E. Black and others, who claimed under a quitclaim deed executed to them in June, 1971. The chancellor found that appellant did not have title to the land by adverse possession.

Appellant propounds three assignments of error, namely:

1. The court erred in ruling that the deadman’s statute [Mississippi Code Annotated section 13-1-7 (1972)] made appellant an incompetent witness to testify about acts of adverse possession perfected by her deceased husband.

2. The court erred in ruling that appellant’s failure to intervene in prior litigation concerning the land in controversy proved her lack of interest in the land.

3. The court erred in holding that appel-lees were the owners of a 78-acre tract of land where appellant and her deceased husband had continuously and adversely possessed the land for more than ten years before appellees had ever set foot on the land.

At the trial in the lower court, appellant introduced a number of witnesses, most all of whom lived in the area of the location of the land in question and had lived there for many years. Appellant was first offered as a witness and was interrogated as to what she had seen her deceased husband do in regard to the land prior to his death. Objection was made by attorney for appellees on the ground that she could not so testify under the provisions of Mississippi Code Annotated section 13-1 — 7 (1972) (the dead-man’s statute). The objection was sustained and appellant was permitted to preserve her testimony in the record. It was contended by appellant that in 1956 she and her husband, Joe Mizell, were living with her mother adjacent to the land in question. She contended that during the spring of that year, Joe Mizell, fenced the property completely, posted it according to law, and began using the land for his pasture. In addition, appellant contended that she assisted in the work of controlling the property, including repair of the fence, keeping up the posted signs and preventing trespassers on the property. Moreover, it was contended that the property was completely controlled, complete ownership asserted, and the property used as their own until her husband died in 1969. Appellant contended that after her husband’s death she continued to keep up the fences on the land, the posted signs, pastured the land, and continued to use it as her own, the same as she and her husband had done prior to his death. She was his sole heir. According to her, she continued using the property and exercising ownership of it until 1977 when timber was begun to be cut therefrom. It was then that she filed the present cause of action.

Appellant introduced a number of witnesses who lived in the area of the land and had so lived for many years. Without discussing the testimony of each separately, it suffices to say that their testimony generally was that the property was known as “Joe and Lauree Mizell’s property.” Most of them saw the Mizells constructing the fence in 1956, and knew that they had pastured it, posted it, and controlled the property since that time.

In the meantime, between 1956 and 1971, there were ten separate quitclaim conveyances of the property involving various grantors and grantees.

It was error for the lower court to reject appellant’s testimony under the provisions of Code section 13-1 — 7. This section provides:

A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, or to establish any claim he has transferred since the death of such decedent. But such person so interested shall be permitted to give evidence in support of his claim or defense against the estate of a deceased person which originated after the death of such deceased person in the course of administering the estate. A person shall not testify as a witness to establish his own or assigned claim or defense against the estate of a person of unsound mind, which originated before the ward became a non compos mentis. But this shall not apply to claims or defenses which arose in the course of the administration of the estate of such person.

The excluded evidence of appellant did not relate to statements made by her deceased husband or anything other than what she saw her husband do over the years and what she assisted him in doing. The question of hearsay testimony is not involved. The Code section in question prohibits a person from testifying as a witness “to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person . . . .” (Emphasis supplied). It is clear from the testimony offered by appellant and the nature of the case that she was not attempting to establish a claim “against” the estate of her deceased husband. On the other hand, she was attempting to establish a claim for the estate. It was incidental that she was the sole beneficiary of the proceeds of the estate. Her testimony was an attempt to establish title to the land in her husband and herself.

In the case of Houser v. Houser, 251 Miss. 209, 168 So.2d 801 (1964), the question involved was essentially the same as that involved here. The Court, in stating that the deadman’s statute did not apply, said:

It is contended that the Court erred in permitting the administratrix of the estate of Ben Ellis Houser (Mrs. Bonnie M. Houser) to testify, she being the sole beneficiary of the last will and testament of Ben Ellis Houser. It is sufficient to say that Mrs. Houser was not undertaking to establish any claim against the estate of a deceased person; to the contrary, she was undertaking to establish the claim of the estate of which she was the executrix.

In 1971 and 1976, the record title holders to the land in question filed suits to confirm their title to the property in question and to remove any cloud on their title. Appellant was not made a party to the suits. There was no publication for unknown claimants and there is no proof in the record whatever that appellant had notice of any kind that the suits were pending and litigation ensued. The chancellor, in his opinion, considered the final decrees in the suits in arriving at his opinion. He primarily considered the fact that appellant did not appear in those cases. We hold that any consideration of those suits was error for the reason, as hereinbefore stated, appellant was not a party and, according to the record, knew nothing about such litigation. Therefore, she could not have been bound thereby.

It could be said that the evidence in the case, when considered as a whole, made questions of fact for the lower court as to whether or not appellant and her husband had valid title to the property under adverse possession subsequent to the spring of 1956. The principal evidence against the contention of adverse possession was the lack of payment of taxes by appellant’s husband and testimony from witnesses that appellant, since the death of her husband, had made admissions against ownership. As previously stated, appellant offered a number of persons thoroughly familiar with the property. Their testimony made a strong case for adverse possession, many of them stating that down through the years the property was known as the “Joe and Lauree Mizell property.” We do not include in'this opinion a finding as to whether or not the chancellor was correct in finding as a fact that appellant did not own the property by adverse possession. As herein-before seen, it is necessary to reverse the cause for another trial, particularly for the admission and consideration of the excluded testimony of appellant. As is many times the case, the evidence on a subsequent trial possibly will be different and additions made thereto. For the reasons stated, the cause is reversed and remanded.

REVERSED AND REMANDED.

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