text:
    STONEWALL INSURANCE COMPANY v. Mrs. R. J. PRATHER.
    No. 49104.
    Supreme Court of Mississippi.
    Feb. 2, 1977.
    Rehearing Denied March 30, 1977.
    Holifield & Harper, Matthew Harper, Jr., Laurel, for appellant.
    Maxey, Clark & Casey, Lunsford Casey, Laurel, for appellee.
    Before GILLESPIE, C. J., and SMITH and WALKER, JJ.
   GILLESPIE, Chief Justice, for the Court:

Suing on the collision or upset coverage of an automobile liability policy, Mrs. R. J. Prather was awarded a judgment by the Circuit Court of Jones County against Stonewall Insurance Company. Stonewall appealed.

Mrs. Merlene S. Ervin owned a passenger automobile insured by Stonewall. Under Part I, the policy provided coverage A.— Bodily Injury Liability, and coverage B.— Property Damage Liability. Under Part III, it provided coverage E. — Collision or Upset, and coverage F. — Comprehensive.

Under Declarations, Item 1, the named insured was given as Merlene S. Ervin, and under Item II, the named insured and all other drivers of the automobile were shown as Merlene S. Ervin and Ronnie Lamar Ervin, age 18, son, who would have one hundred percent use of the described automobile.

The Toyota automobile described in the policy was in the shop. Ronnie Lamar Er-vin borrowed Mrs. Prather’s Oldsmobile automobile from Mike Parish, grandson of Mrs. Prather. While driving Mrs. Prather’s automobile, Ronnie Lamar Ervin swerved to miss an animal, lost control, and the Prather automobile was totally destroyed when it turned over twice. Mrs. Ervin assigned to Mrs. Prather any claim she had under the policy. Mrs. Prather then sued Stonewall. Jury trial was waived. The trial resulted in a judgment for Mrs. Prather.

Question: Did the policy provide collision or upset coverage on Mrs. Prather’s automobile when the loss occurred while it was being driven by Ronnie Lamar Ervin?

The question is answered by the ternis of the policy.

The applicable provisions are as follows:

Part III. — Physical Damage
Insuring Agreements
I. Coverage E — Collision or Upset: To pay for direct and accidental loss of or damage to the automobile, hereinafter called loss, caused by collision of the automobile with another object or by upset of the automobile.
V. Use of Other Automobiles — Collision or Upset Coverage. If the insured is an individual or husband and wife and if during the policy period such insured, or the spouse of such individual if a resident of the same household, owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverage E with respect to said automobile applies with respect to any other private passenger automobile while being operated or used by such insured or spouse.

Omitting the parts not applicable to this case, Paragraph V is as follows:

If the insured is an individual . and if during the policy period such insured, . . . owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy under coverage E with respect to said automobile applies with respect to any other private passenger automobile while being operated or used by such insured.

Paragraph V of Part III requires that an unmarried insured must during the policy period own a private passenger automobile covered by the policy in order for the collision or upset coverage to apply to another private passenger automobile while being driven or used by such insured. Mrs. Prather alleged in her amendment to the declaration that the Toyota described in the policy was owned by Mrs. Merlene S. Ervin. Ronnie Lamar Ervin was an insured but since he did not own the private passenger automobile insured under the policy, the collision or upset coverage does not apply with respect to the Prather automobile.

The case is reversed and judgment is entered here for the appellant. REVERSED AND RENDERED.

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


source: Caselaw Access Project

license: Public Domain

text:
    V. C. HAMMETT, Jr. and William Michael McCrory v. John H. COX and Bonnie G. Cox et al.
    No. 49180.
    Supreme Court of Mississippi.
    Feb. 23, 1977.
    Rehearing Denied March 30, 1977.
    Lake, Tindall, Hunger & Thackston, C. S. Tindall, Jr., Walter B. Swain, Jr., Green-ville, for appellants.
    Campbell & DeLong, Roy D. Campbell, Jr., L. Carl Hagwood, Greenville, for appel-lees.
   Appeal from Chancery Court, Washington County; Ernest Kellner, Chancellor.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    CAPITAL TRANSPORT COMPANY v. FIRST NATIONAL BANK OF JACKSON and Amerada Corporation.
    No. 49172.
    Supreme Court of Mississippi.
    March 2, 1977.
   Appeal from Chancery Court, Hinds County; Betty B. Tucker, Chancellor.

Young, Scanlon & Sessums, E. Stephen Williams, Jackson, for appellant.

Creekmore & Beacham, Rufus Creek-more, James W. Newman, III, Jackson, for appellees.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


author: WALKER, Justice, for the Court.

text:
    H. W. EDMISTON, Receiver for Missouri General Insurance Company v. Harold T. SCHELLENGER.
    No. 49166.
    Supreme Court of Mississippi.
    March 2, 1977.
    Rehearing Denied March 30, 1977.
    Darden & Sumners, Lester F. Sumners, New Albany, for appellant.
    Boone & Ford, Will R. Ford, New Albany, for appellee.
    Before SMITH, ROBERTSON and WALKER, JJ.
   WALKER, Justice, for the Court.

On January 6, 1972, the home of Harold T. Schellenger in New Albany was destroyed by fire. The home was covered under a fire insurance policy issued by Missouri General Insurance Company. On January 19, 1972, Schellenger was interviewed by John Wade, an adjuster for the company, and signed a statement concerning the circumstances of the fire. On April 4,1972, he submitted to a full examination under oath as required by the policy. Schellenger did not sign the deposition at that time, but in July of that year he received a letter from his attorney, Lester McDonough, who informed him that the insurance company wished him to sign the original and a copy of the deposition. He refused to do so because the deposition contained certain factual inaccuracies; but, it was two and one-half years later, on January 15, 1975, when Schellenger finally submitted a corrected deposition to the company.

Schellenger brought suit on the policy on April 9, 1973, in the Circuit Court of Union County. On July 13, 1973, the insurance company raised the affirmative defense that Schellenger had voided the policy by willful concealments, misrepresentations of material facts, and false swearing. On January 24,1975, the insurance company filed a plea in bar, maintaining that Schellenger’s failure for almost three years to sign the deposition barred his suit. Along with its affirmative defense, the insurance company filed a bill of particulars, listing specific instances of misrepresentations. In his original statement on January 19, 1972, Schellenger had stated that he entered the hospital in Tupelo on January 3 and remained there until January 7. He also stated that he had never before had any sort of a fire loss. Later, in his original deposition, taken April 4, 1972, Schellenger reiterated that he had not returned to his home until January 7, but admitted that he had left the hospital on either January 4 or 5 to go to the drug store and to get some Kentucky Fried Chicken. He stated that he did not leave the hospital at all on January 6, the day of the fire. He further stated that he could not remember having had any visitors from out-of-state during the two weeks preceding the fire. Correcting his earlier statement, he admitted that his home in Illinois had burned in 1971. In his corrected deposition, submitted on January 15, 1975, Schellenger, for the first time, admitted that he had left the hospital on January 6 and had gone to his home to prepare it for the visit, of his daughter and ex-wife. He also admitted that his son-in-law had been staying with him at the hospital before the fire. The evidence introduced at trial clearly established that Schellenger had made these statements at the times alleged. Furthermore, Schellenger admitted at trial, for the first time, that his son-in-law had gone to his home with him on January 6.

After hearing all the evidence, the court took the case from the jury, overruled the plea in bar, and ruled that the discrepancies in Schellenger’s statement and depositions did not concern any material fact. The court rendered judgment for the plaintiff in the amount of $20,000, the full value of the policy, but allowed interest only from January 21, 1975, the date when Schellenger finally signed the deposition. The insurance company appeals from this adverse judgment, and Schellenger cross-appeals contending that interest should have been allowed from February 6, 1972.

We need not consider the insurance company’s plea in bar, since we are satisfied that, on the evidence presented at trial, the company was entitled to a peremptory instruction in its favor on the ground of false swearing. The general rule is that “to constitute fraud or false swearing there must be false statements wilfully made with respect to a material matter and with the intention of thereby deceiving the insurer.” 44 Am.Jur.2d Insurance § 1501 (1969). See Claxton v. Fidelity & Guar. Fire Corp., 179 Miss. 556, 564-66, 175 So. 210, 211-12 (1937). It is undisputed that several of the answers in Schellenger’s first statement and his original deposition were, in fact, false. We must determine whether those falsehoods were material and were willfully made.

With regard to insurance investigations, this Court takes a broad view of materiality. In Standard Ins. Co. v. Anderson, 227 Miss. 397, 407, 86 So.2d 298, 301-02 (1956), we quoted Claflin v. Commonwealth Insurance Co., 110 U.S. 81, 94-95, 3 S.Ct. 507, 515, 28 L.Ed. 76, 82 (1883), to the effect that the purpose of requiring answers to such questions “was to enable the Company to possess itself of all knowledge, and all information as to other sources and means of knowledge, in regard to the facts, material to their rights, to enable them to decide upon their obligations, and to protect them against false claims.” From this perspective, we believe that the questions concerning Schellenger’s activities on the day of the fire were most material, because of the company’s need to determine the actual cause of the fire. We held similar questions to be material in Taylor v. Fireman’s Fund Ins. Co., 306 So.2d 688, 643-44 (Miss.1975). The question about out-of-town visitors was also material, since the company had a right to try to interview any persons who might have had knowledge of the fire.

Schellenger argues that these questions are now immaterial since the insurance company did not raise the defense of arson. We disagree. We believe that materiality should be judged at the time of the misrep-. resentation, not at the time of the trial. As we have stated, the purpose of requiring answers to questions is so that the insurance company may properly protect itself against false claims. To be effective, the investigation must be carried out at the time of the claimant’s deposition, not at the time of the trial. It would be unjust to allow a claimant to misrepresent facts which might lead to a valid defense and then to allow him to escape the consequences of his falsehood simply because he had succeeded so well that the company was unable to establish the defense. We refuse to establish such a rule.

Furthermore, the evidence clearly demonstrates, as a matter of law, that these facts and statements were knowingly and willfully made since Schellenger admitted on the stand that as early as July of 1972 he knew that his original deposition contained mistakes and falsehoods. The insurance company had a right to obtain truthful answers from its insured as to material matters, and Schellenger therefore had the duty to correct his false answers at the earliest possible date. This Court has consistently held that a refusal to answer material questions will defeat recovery on the policy. See, e.g., Taylor, supra at 644-45. The effect of these decisions would be nullified if an insured could, even innocently, provide false information, and then willfully refuse to correct his mistakes for over two and one-half years. In insurance investigations, a false answer may often be worse than no answer at all. We hold that Schellenger’s persistent refusal to correct his deposition constitutes a willful and knowing provision of false information to the insurance company.

The company needed to introduce no evidence to prove Schellenger’s intent to deceive. Where false and material statements are knowingly and willfully made, “the intent to deceive will be implied.” Claxton, supra, 179 Miss, at 566, 175 So. at 212.

Since the evidence established the insurance company’s defense as a matter of law, the cause must be reversed and judgment rendered here for the appellant. Because of the reversal of the judgment, there is no need to reach the question of allowable interest presented by the cross-appeal.

REVERSED AND RENDERED.

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


text:
    Doris GILLESPIE and Joe B. Whitten v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY.
    No. 49082.
    Supreme Court of Mississippi.
    March 9, 1977.

      Parker, Áverill & Winston, Roy O. Parker, Tupelo, for appellants.
    Threadgill & Smith, Taylor B. Smith, Columbus, for appellee.
    Before INZER, P. J., ROBERTSON and WALKER, JJ., and DARWIN MAPLES, Commissioner.
   DARWIN MAPLES, Commissioner, for the Court:

The separate suit? of Mrs. Doris Gillespie and Joe B. Whitten against Southern Farm Bureau Casualty Insurance Company were consolidated by order of the Circuit Court of Lee County, Mississippi. Thereafter that court sustained a demurrer and plea in bar to each declaration and plaintiffs, Doris Gillespie and Joe B. Whitten, appeal.

Jessie Mae Whitten, the appellants’ 80-year-old mother, was a passenger in an automobile owned and driven by her adult daughter, Florence Whitten (the appellants’ sister), when the Whitten car was involved in an intersectional accident with an automobile driven by James E. Moran, Jr. and owned by his father, James E. Moran. A collision occurred when Florence Whitten attempted to make a left turn in front of James E. Moran, Jr. at the intersection of Monument and West Main streets in Tupe-lo, Mississippi. The Moran car struck the right front side of the Whitten car, and Jessie Mae Whitten was badly injured. The accident took place on July 6, 1973. Jessie Mae Whitten died on September 21, 1973.

Suit was first brought in the United States District Court for the Northern District of Mississippi under Mississippi’s wrongful death statute on behalf of all of the statutory heirs of Jessie Mae Whitten. Linda W. Vinson, Administratrix of the Estate of Jessie Mae Whitten, deceased, brought suit against the city of Tupelo, Mississippi, James E. Moran, James E. Moran, Jr., and Florence Whitten.

The case was fully tried and the jury brought in a verdict against Florence Whit-ten only for $13,639.45 (the exact amount of the hospital, medical and nursing expenses). In a Memorandum Order, United States District Court Judge William C. Ready found:

“A serious factual dispute existed in the evidence as to whether the decedent’s death was proximately caused by the accidental injuries. The death certificate executed by Dr. Murphy who attended the decedent from July 6, 1973, until September 17, 1973, listed the primary cause of her death as congestive heart failure; and that the decedent had arteriosclerosis as well as multiple chest injuries. On the whole evidence it was a question for the jury to decide whether the accidental injuries proximately caused the decedent’s death. Necessarily, the jury answered this question in the negative, when it refused to award plaintiff the funeral expenses or any sum to the heirs for loss of society and companionship. We are unable to conclude that this finding by the jury was unsupported by substantial evidence.”

Thereafter, Mrs. Doris Gillespie, daughter of decedent, and Joe B. Whitten, son of decedent, brought separate suits in the Circuit Court of Lee County against Southern Farm Bureau Casualty Insurance Company. Plaintiffs contended that their sister, Florence Whitten, had liability insurance on her car but that said policy had an exclusion in ■said policy denying coverage because of the fact that the decedent, Jessie Mae Whitten, was living in the same household with the said Florence Whitten. As a result thereof, Appellants urge that under the law Florence Whitten became an uninsured motorist. Mrs. Gillespie then alleged that defendant insurance company was liable under the uninsured motorist endorsement to six different policies of insurance issued to Ralph H. Gillespie, her husband, on six different cars, the named insured in each policy being either Ralph Gillespie, Mrs. Ralph Gillespie, or Jeffery, Nancy or Margaret Gillespie, their children. Joe B. Whitten alleged that defendant was liable under the uninsured motorist endorsement to six different insurance policies issued to Joe B. Whitten on six different cars, the named insured in each policy being either Whitten, his wife or one of their three children.

Jessie Mae Whitten and her husband lived with their unmarried daughter, Florence Whitten. Jessie Mae’s sole income was from social security.

The appellants adopt the position that the language of the statute [Miss.Code Ann. § 83-11-101 (1976)] does not require bodily injury to the insured, but they concede that the policy provision does so require.

The sole issue, therefore, is whether there is any conflict between the provision of the statute and the provision of the insurance policy or contract in this regard.

Mississippi Code Annotated section 83-11-101 (1976 Supp.), provides in part:

“No automobile liability insurance policy or contract shall be issued or delivered after January 1, 1967, unless it contains an endorsement or. provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages for bodily injury or death from the owner or operator of an uninsured motor vehicle, . .

Mississippi Code Annotated section 83-11-103 (1972) defines the term “insured” as meaning:

“[T]he named insured and, while resident of the same household, the spouse of any such named insured and relatives of either, while in a motor vehicle or otherwise, and any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies, and a guest in such motor vehicle to which the policy applies, or the personal representative of any of the above; . . ..”

The uninsured motorist endorsement to each policy contains this provision:

“I. DAMAGES FOR BODILY INJURY CAUSED BY UNINSURED MOTORISTS.

To pay all sums . . which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, sustained by the insured

The uninsured motorist endorsement to each policy provides that the word “insured” means:

“(1) the First Named Insured as stated in the policy and while residents of the same household, his spouse and relatives of either;
“(2) any other person while occupying an insured automobile with permission of the named insured or spouse.”

Both of the appellants, Mrs. Doris Gillespie and Joe B. Whitten, admit that their mother, Jessie Mae Whitten, was not a resident of their household,. but that their mother lived separate and apart from them in the household of Florence Whitten. We find no conflict between the definition of the term “insured” in Section 83-11-103 and the definition contained in each policy of insurance.

This Court said in Talbot v. State Farm Mutual Automobile Insurance Company, 291 So.2d 699 (Miss.1974):

“The named policyholder and members of his household are protected if injured by an uninsured motor vehicle regardless of where the injury took place. The other coverage provided is for all persons occupying one of the insured vehicles with Insured’s permission when so injured by an uninsured motorist.” 291 So.2d at 702 (Emphasis added).

In the case at bar, two facts are undisputed: (1) No “insured” was involved in the accident or received any injury; and (2) No “insured vehicle” under the Ralph Gillespie or Joe B. Whitten policies was involved in the accident.

We are of the opinion that our holding in Talbot is dispositive of the question involved in the case at bar. The injuries or death, because of an uninsured motorist, must be to the named policyholder, his or her spouse or a relative of either, while a member of the household of the named policyholder.

The second class of coverage provided by the uninsured motorist endorsement is for those who use, with the consent of the named insured, “the motor vehicle to which the policy applies” and those who are “guest[s] in such motor vehicle to which the policy applies”. Miss.Code Ann. § 83-11-103 (1972); Talbot v. State Farm, supra.

The appellants cite the following cases to support their claim that they are entitled to maintain this action under the wrongful death statute of our state: Brummett v. Grange Insurance Association, 4 Wash.App. 979, 485 P.2d 88 (1971); Davis v. United States Fidelity & Guaranty Co., 172 So.2d 485 (Fla.App.1965); and Sterns v. M.F.A. Mutual Insurance Co., 401.S.W.2d 510 (Mo. App.1966). We have carefully reviewed these cases and find that the decedent in each case falls within the definition of “insured” contained in the insurance policy.

In the case at bar, we find that the decedent was not an insured, either under the statute or under the policy. The trial court, therefore, properly sustained a demurrer to each declaration and dismissed the action in each case.

AFFIRMED.

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

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


author: LEE, Justice,

text:
    CITY OF WATER VALLEY, Mississippi v. Markley TRUSTY et al.
    No. 49209.
    Supreme Court of Mississippi.
    March 9, 1977.
    Murray L. Williams, Water Valley, for appellant.
    Blair & Mackey, Oscar P. Mackey, Oxford, for appellee.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice,

for the Court:

Markley H. Trusty, John Dexter Brown and Clinton R. Mooney filed a bill of complaint in the Chancery Court of the Second Judicial District of Yalobusha County, seeking to enjoin enforcement of a dog leash ordinance enacted by the City of Water Valley. The chancellor overruled a demurrer of the City and granted it an interlocutory appeal.

I.

Did the bill of complaint charge sufficient material facts upon which injunctive relief could be granted?

The bill set forth that (1) the dog ordinance, which was made exhibit to it, was unconstitutional and violated the rights of complainants, (2) the City had attempted to prosecute the complainants for violation of the ordinance, and (3) unless the Mayor and Board were enjoined from enforcing the ordinance, irreparable harm and injury would result to the complainants. Appel-lees did not charge which part of the ordinance was being violated, or facts which constituted irreparable harm and injury.

Crocker v. Farmers & Merchants Bank of Bruce, 293 So.2d 438 (Miss.1974), restated the requirements for pleading in a bill for injunctive relief as follows:

“The injunction was also erroneously issued because the bill of complaint did not charge sufficient material facts to justify issuance of the injunction. In essence the bill simply charged that the complainants had no adequate remedy at law, and that they would suffer irreparable damages unless the injunction was issued. The averment in this regard amounted to what is more clearly a legal conclusion that an averment of facts. Such averments were insufficient for failure to allege all the material facts from which the chancellor could obviously discern upon what precise grounds or bases irreparable harm would result. V. Griffith, Mississippi Chancery Practice section 446 (2d ed. 1950).” 293 So.2d at 442.

The bill of complaint did not sufficiently charge material facts upon which injunctive relief could be granted, and the demurrer should have been sustained.

II.

Did the ordinance violate appel-lees’ constitutional rights, thus rendering it invalid?

Appellees- principally contend that the ordinance is unconstitutional because of Sections 6, 7, 8 and 9, which deal with dogs running at large, the registration and vaccination of dogs, notice of impounding and reclaiming dogs, and disposition of unclaimed dogs. They argue that Mississippi Code Annotated § 21-19-9 [See Appendix] does not authorize a municipality to impound dogs which have been vaccinated and registered, and that destruction of a dog after five days’ posted notice [Sections 8 and 9 of ordinance] is equivalent to taking private property without due process of law.

This Court held in Julienne v. City of Jackson, 69 Miss. 34, 10 So. 43 (1891):

“It is held with great unanimity by the courts that regulations of the most stringent character, and the most summary proceedings for the destruction of these animals kept contrary to such regulations, are entirely within legislative power, and free from constitutional objection, though the property of the owner is destroyed without notice or hearing, in the execution of the law.” 69 Miss, at 37-38, 10 So. at 43.

Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.C.A.1965), involved an ordinance similar to the one here. In holding that the ordinance was constitutional, the Texas Court said:

“Moreover, the overwhelming majority of courts view statutes and ordinances providing for summary disposal or destruction of dogs as valid exercises of the police power; and though dogs are property, such ordinances or statutes are not a denial of due process, even though they do not provide for notice and hearing. 56 A.L.R.2d 1026.” 392 S.W.2d at 484.

See also Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786 (1957) and cases cited at Annot. 56 A.L.R.2d 1026 (1957).

Mississippi Code Annotated § 21-19-9 (1972) authorizes municipalities to regulate the running at large of animals of all kinds. The ordinance here was enacted pursuant to that authority, it meets the constitutional requirements, and the demurrer should have been sustained on that question. Therefore, the case is reversed and remanded.

REVERSED AND REMANDED.

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

Appendix to follow.

APPENDIX

“The governing authorities of municipalities shall have the power to prevent or regulate the running at large of animals of all kinds, and to cause such as may be running at large to be impounded and sold to discharge the costs and penalties provided for the violation of such regulations and the expense of impounding and keeping and selling the same; to regulate and provide for the taxing of owners and harborers of dogs, and to destroy dogs running at large, unless such dogs have proper identification indicating that said dogs have been vaccinated for rabies; and to provide for the erection of all needful pens, pounds, and buildings for the use of the municipality, within or without the municipal limits, and to appoint and confirm keepers thereof, and to establish and enforce rules governing the same.” Miss.Code Ann. § 21-19-9 (1972).


author: LEE, Justice, for the Court:

text:
    CITY OF JACKSON, Mississippi v. Mrs. Lois E. SLY et al.
    No. 49223.
    Supreme Court of Mississippi.
    March 9, 1977.

      John E. Stone, Robert D. Findley, Jackson, for appellant.
    Binder, Lucas & Lohrmann, Jerome L. Lohrmann, Thomas J. Richardson, Caldwell, Richardson & Caldwell, Taylor, Covington, Smith, Matrick & Gibson, Charles E. Gibson, Jackson, for appellees.
    Before INZER, SUGG and LEE, JJ.
   LEE, Justice, for the Court:

The County Court of Hinds County held that Machine Concepts, Inc. [Machine] was entitled to an ad valorem tax exemption on certain lands in the City of Jackson [City] for the years 1972 and 1973, the Circuit Court of Hinds County affirmed the County Court decision, and City appeals.

Mrs. Lois E. Sly owned the property and she leased same to Mississippi Chipping Company, Inc., which, in turn, subleased it to Machine. Mrs. Odessa Lee bought the land April 3,1973, at a tax sale for the 1972 ad valorem taxes. She also paid the 1973 taxes to protect her April 3 purchase. By stipulation, the tax sale was not permitted to mature.

The sole question is whether or not Machine had a valid tax exemption for the years 1972 and 1973 under the statutes relating to new factories and enterprises.

If Machine is correct in its contention that the exemption is valid, City will be required to refund nine thousand seven hundred seventy dollars fifty-seven cents ($9,770.57) to Mrs. Lee. If there is no exemption, Mrs. Lee will have a valid tax lien in said amount against the property.

On January 19, 1973, Machine filed an application for exemption from ad valorem taxes of City for a ten-year period beginning October 29, 1971, the date Machine commenced operations. The application related only to machinery and personal property and did not include real property.

On July 17,1973, City passed a resolution approving the application of Machine, the application and resolution were then approved by the Agricultural & Industrial Board as provided by statute, and on September 11, 1973, City entered a final order granting the exemption for a period of ten (10) years from and after October 29, 1971, on land, buildings, equipment and inventory. On May 7, 1974, City entered an order without notice to Machine, reciting that its previous order was erroneous and amended same to limit the exemption to personal property, thereby excluding the real property-

The trial court held that the real property was exempted from 1972 and 1973 ad valo-rem taxes, that the tax sale was void and that Mrs. Lee should recover from City the amount she had expended for said taxes.

Does a municipality have the authority to grant a tax exemption on property which was not listed in the application?

Supervisors and municipal authorities are authorized to grant exemptions, in their discretion, to commence from the date of completion of the new enterprise for which the exemption is granted. Mississippi Code Annotated § 27-31-101 (Supp.1976) [Appendix I].

The procedure to obtain the exemption is set forth in Mississippi Code Annotated § 27-31-107 (1972) [Appendix II] and requires that an application be filed with the municipality setting out full information as to the property proposed to be exempted, the kind of articles to be manufactured, and each application to show the true value of all property sought to be exempted.

Exemption statutes are strictly construed against those claiming the exemption and they have the burden to establish their right to same. Myers v. Mississippi-Alabama State Fair, 257 So.2d 233 (Miss. 1972); Snapp v. State, 250 Miss. 597, 164 So.2d 752 (1964); Mutual Credit Union v. Mississippi Employment Security Commission, 241 Miss. 432, 131 So.2d 444 (1961).

In Hollandale Ice Co. v. Board of Supervisors, 171 Miss. 515, 157 So. 689 (1934), an application was filed and exemption was obtained from state and county taxes. The Board of Levee Commissioners assessed the property for levee taxes because the application failed to request a levee tax exemption. The levee tax was allowed, since the exemption could be obtained only by strict compliance with the exemption law.

The City could not grant an exemption on real property or personal property without an application being filed. It follows that where no exemption has been sought in an application such as here, the City had no authority to grant an exemption on real property. Thus, the order granting the exemption was a nullity insofar as it pertained to real property, and no notice was required to appellee when the City amended its order deleting the exemption on real property.

The statute provides that the time of such exemptions shall commence from the date of completion of the new enterprise and the question arises as to when and from what point the exemption begins. Obviously, it was the intent of the Legislature that counties and municipalities have the authority, in their discretion, to exempt new enterprises from ad valorem taxes for a period not exceeding ten (10) years. Since the new enterprise here commenced business on October 29,1971, a date after which the tax lien had attached and the levy probably had been made, in order to fulfill the intent of the Legislature, when should the tax exemption begin, if Machine had filed its application timely?

The tax lien attaches on real property January 1 of each year [Mississippi Code Annotated § 27-35-1 (1972)] and the taxing authority is required to make the levy at its September meeting. The taxes are payable on or before February 1 in the next succeeding year.

In Gully v. Wilmut Gas & Oil Co., 174 Miss. 794, 165 So. 620 (1936), the Court held that failure to claim an exemption did not waive the remainder of the period after the application was filed, and said:

“This contention is without merit. Section 3111, providing for the method of claiming the exemption, fixes no time for the making of the application, except by implication it must be made during the five-year period of exemption. We see no good reason why a delay in claiming the exemption should be treated as a waiver of the right to it for any part of the five-year period. To illustrate: The exemption may be claimed for the last year of the period alone. Payment of the taxes for the previous four years would not be a waiver of the right for the remaining year.” 174 Miss, at 807, 165 So. at 622-623.

In Meador v. Mac-Smith Garment Co., 188 Miss. 98, 191 So. 129 (1939), the Court stated:

“Finally, it is insisted that the appellee was not entitled to the exemption because the real estate assessments for the year 1936 and 1937 had been approved and had become final prior to the purchase of the property by the appellee on December 15, 1936. We think that this contention is also without merit, under the facts and circumstances of this case, since the levy of the taxes for the year 1937 and for the remainder of the period of exemption claimed, had not been made by the taxing authorities at the time the exemption was granted, and the obligation to pay the taxes for said years had not accrued on the part of the owner of the property at that time.” 188 Miss, at 115, 191 So. at 134.

We hold that, if an application for exemption from ad valorem taxes is finally approved by the taxing authorities prior to making the levy for said taxes, the property owner is exempted from ad valorem taxes for that year, and, in the event the final order approving the exemption is entered after making the levy, the exemption begins for the tax year next succeeding entry of the final order even though the enterprise commenced doing business prior to the date of the levy. Otherwise, a new enterprise might be unable to obtain a tax exemption for the full ten (10) years, losing the first year applied for.

If an enterprise could wait three (3), five (5), or even nine (9) years to apply for tax exemption and obtain a retroactive exemption for those years in which it failed to seek same, the taxing authority, if required to refund taxes, could be placed in an untenable position on its revenues (refund of taxes). Also, tax collections and tax sales could become frustrated and disrupted. We hold that failure to apply timely for the exemption waives it for those years previous to the entry of the final order granting the exemption.

For the reasons stated, the case is reversed and judgment entered here for appellant, and the case is remanded to the trial court for entry of such further orders which may not conflict with this opinion.

REVERSED AND REMANDED.

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

APPENDIX I

“County boards of supervisors and municipal authorities are hereby authorized and empowered, in their discretion, to grant exemptions from ad valorem taxation, except state ad valorem taxation. Said governing authorities in granting the exemptions herein provided, may, in their discretion, except from such exemption ad valorem taxes for school district purposes on all tangible property used in, or necessary to, the operation of the manufacturers and other new enterprises of public utility hereinafter enumerated by' classes, but not upon the products thereof and not including automobiles and trucks belonging to the said manufacturers or other new enterprises or public utilities operating on and over the highways of the State of Mississippi, for a period not to exceed ten (10) years. The time of such exemptions shall commence from the date of completion of the new enterprise for which the exemption is granted. The new enterprises which may be exempt are enumerated as and limited to the following: * * * ” Miss.Code Ann. § 27-31-101 (Supp.1976).

APPENDIX II

“Any person, firm or corporation claiming exemptions from municipal or county ad valorem taxation as provided in sections 27-31-101 to 27-31-117 shall first file an application therefor, in triplicate, with the governing authorities of the municipality or the county board of supervisors, as the case may be. Each copy shall be subscribed and sworn to by the individual making the application or, if a firm or corporation, by an officer or person duly authorized to do so. In the application, full information shall be given as to the property proposed to be exempted, the kind of articles to be manufactured, and the date from which exemption is claimed. Each application shall also show the true value of all such property sought to be exempted. The governing authorities of the municipality or county board of supervisors may, by resolution spread on its minutes, approve such application for all or any part of the property sought to be exempted, and for all or any part of the authorized period of exemption. In such case, the original of the application and a certified transcript of such approval shall be forwarded to the Mississippi Agricultural and Industrial Board, which shall proceed to investigate the matter and determine whether the property is eligible and should be exempted as heretofore defined. If the Mississippi Agricultural and Industrial Board determines, after investigation as to financial ability, business experience and technical qualifications of the person, firm, or corporation claiming the exemption, that the property sought to be exempted is eligible, and the creation and establishment of such industry will promote the industrialization of this state and will supply employment to citizens of this state, and will otherwise promote the development of the community in which same is located, then it may, in its discretion, so certify to the governing authorities of the municipality or the county board of supervisors, as the case may be, by issuing its certificate of public convenience and necessity. If such property sought to be exempted is not eligible for such exemption, as above set forth, the Mississippi Agricultural and Industrial Board shall so certify. If the Mississippi Agricultural and Industrial Board certifies that the applicant is eligible for an exemption, it shall be discretionary with the board of supervisors or municipal authorities as to whether they grant the exemption, but in no event shall an exemption be granted if the Mississippi Agricultural and Industrial Board certifies that the applicant is not eligible for an exemption. The original copy of the application or exemption shall be returned to the governing authorities of the municipality or the county board of supervisors, as the case may be.” Miss.Code Ann. § 27-31-107 (1972).


author: BROOM, Justice, for the Court:

text:
    HIGHWAY DEVELOPMENT COMPANY, INC., et al. v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 49197.
    Supreme Court of Mississippi.
    March 9, 1977.

      Butler, Snow, O’Mara, Stevens & Canna-da, C. Eugene McRoberts, Jr., James L. Martin, Jackson, for appellants.
    Virgil G. Gillespie, Gulfport, for appellee.
    Before PATTERSON, ROBERTSON and BROOM, JJ.
   BROOM, Justice, for the Court:

By eminent domain in a Special (County) Court of Harrison County, Mississippi State Highway Commission (hereinafter commission) condemned 2.95 acres of land out of 8.56 acres owned by Highway Development Company, Inc. (hereinafter HDC). HDC appealed to Circuit Court (First Judicial District) which affirmed the Special Court judgment awarding HDC $35,000 for its 2.95 acres. The case is here on HDC’s direct appeal, and the Commission’s cross appeal. We affirm.

FACTS: After HDC’s president (May) learned from news media and discussions with commission officials that the proposed interstate system (I-10/Lorraine Road interchange) would involve the subject land, HDC purchased the 8.56 acres. The land consisted of two parcels: the northwest (CD-I) and northeast (CD-2) quadrants of the intersection of 1-10 and Lorraine Road. CD-I and CD-2 are on opposite sides of Lorraine Road which runs north and south intersecting I — 10 which runs east and west. Both CD-I and CD-2 are situated immediately north of 1-10. HDC optioned and then sold to Continental Oil Company for $80,000 .75 acres (Part of CD-2) for a first-off service station site in the northeast quadrant of the intersection as then planned. HDC similarly optioned to Gulf Oil Corporation part of CD-I in the northwest quadrant of the planned intersection. Gulf declined to exercise the option because the commission revised the project plans thereby requiring acquisition of greater acreage for rights-of-way so as to embrace parts of CD-2 (the northeast quadrant, part of which HDC sold to Continental) and CD-I (including that optioned to Gulf in the northwest quadrant). Realizing the land (including parts of CD-I and CD-2) would be condemned, May set out to acquire and did acquire for HDC additional lands designated CD-3 on the east side and CD-4 on the west side of Lorraine Road situated directly north of CD-I and CD-2 so as to have first and second-off service station sites as per the revised plans. HDC says the commission paid Continental approximately $80,000 (a negotiated settlement) for the site HDC sold Continental. After acquiring the parcel from Continental by negotiation, the commission condemned the subject 2.95 acres (Parcels CD-I and CD-2 less the part bought from Continental). HDC contends it should be compensated by the commission in terms of the value or square footage price ($2.45 per square foot) Continental paid HDC for .75 acres in CD-2. The commission contends HDC is entitled to compensation based upon the before and after rule applied as of the filing date (April 2, 1970) of the eminent domain suit.

First trial (county court) in August 1970 resulted in a $30,000 verdict, but the trial court sustained HDC’s motion for a new trial. Retrial in August 1971 resulted in a $35,000 verdict whereupon HDC appealed to circuit court and the commission cross appealed. Affirmance was ordered by the circuit court as to all issues.

The threshold issue is: Did the change in the right-of-way plans of the highway commission constitute a second or supplemental taking?

HDC argues that the trial court erred in refusing to instruct the jury peremptorily that as a matter of law the eminent domain taking constituted a second or supplemental taking. HDC requested and was granted instructions (without objection) allowing the jury to decide if the condemnation constituted a second taking, which issue the jury resolved against HDC. HDC’s position is that it acquired subject land (CD-I and CD-2) after assurances were given its president, May, by commission officials that the project plans were final (Steinwinder denied this). HDC alleges it caused to be deeded to the commission a .14 acre strip (by Bensons, third parties, who had optioned the strip to HDC) in return for the commission issuing HDC a permit for curb cuts at the Continental site. HDC also alleges it quitclaimed the strip to the commission but the record is not clear in this regard. The alleged deeding of this .14 acre strip, according to HDC, was an original taking and therefore any taking necessitated by the change and enlargement of the preliminary plans constituted a second or supplemental taking.

Pearl River Valley Water Supply Dist. v. Wood, 252 Miss. 580, 172 So.2d 196 (1965), held that publication of preliminary plans was not a taking of land, and that “institution of the suit” is the date to which before and after values relate. See also, Jackson Municipal Airport Authority v. Wright, 232 So.2d 709 (Miss.1970). In the present case neither the newspaper publication of plans seen by May, nor plans viewed by him in the commission office, nor stakes placed in the field, nor the alleged conveyance by the Bensons (at HDC’s instance) of the .14 acre strip to the Mississippi State Highway Commission in exchange for HDC’s curb-cut permit, is binding upon the condemnor as a taking. Institution of the condemnation suit on April 2, 1970, is the date of the taking, and is the date as to which the land derives its before and after value (as used by the commission in its land appraisals). HDC accurately states that during the trial witness Steinwinder, Roadway Design Engineer for the Commission, testified that enlargement of the plans amounted to a second taking. Nevertheless, Steinwinder’s utterances in this regard were no more than his thoughts about the matter because the determination of what constitutes a second or supplemental taking is a question of law for the court (not a project engineer) to resolve.

Pearl River Valley Water Dist. v. Brown, 254 Miss. 685, 182 So.2d 384, 184 So.2d 407 (1966), recognized the principle of general enhancement in value that normally flows when a new public project is announced with reference to a locality. General enhancement in value is not what HDC seeks here. It seeks specific enhancement in value to a small parcel of land which it holds for alleged first-off and second-off service station locations at CD-I and CD-2 when in fact first-off and second-off locations were still owned by Watkins Land Company, Inc. at CD-3 and CD-4. Watkins is owned by the wives of May and Mounger (HDC owners). HDC, in purchasing the condemned land, assumed the risk that the construction plans might be changed as to this Federal-State Highway Project. The record before us does not establish a second taking and, therefore, the trial judge did not err in his refusal to peremptorily instruct the jury to that effect.

Next, HDC argues that the trial court erred in allowing the commission to show: HDC’s transfer of parcels CD-3 and CD^4 to Watkins Land Company, Inc. (hereinafter Watkins); the relationship between the stockholders of the corporations, HDC and Watkins; and to develop testimony that when May (HDC’s president) learned of the change in plans of the highway interchange project, HDC purchased additional land (CD-3 and CD-4) to the north of the land involved in this eminent domain suit. This testimony was also to the effect that CD-3 and CD-4 were then deeded, at the suggestion of the Chief of the Commission’s Right-of-Way Department, to Watkins, the corporation (owned by the wives of HDC’s owners, May and Mounger) which May caused to be organized. While May refused to admit that the commission’s right-of-way chief specifically told him to form a corporation and transfer to it parcels CD-3 and CD-4, scrutiny of the record reveals May’s testimony that the official told him, “we could more properly assess your damages if these properties were in separate ownership.” Obviously, Watkins was created to constitute an entity to which HDC could convey the last acquired land (CD-3 and CD-4).

Apparent is the fact that had HDC continued to own the land transferred to Watkins (CD-3 and CD-4), HDC’s posture would not have been such as to permit its advancement of the theory of supplemental or second taking. On each of CD-I, CD-2, CD-3 and CD-4 there was a first-off and second-off access location suitable for a service station. Thus without the transfer to Watkins, HDC would have been in the untenable position of alleging ownership (and compensation for) eight service station locations rather than four. Nevertheless, HDC contends that it was entitled to any enhancement or appreciation in value of subject property as evidenced by the purchase of .75 acres by Continental from HDC for $80,000. HDC says this is especially so because the commission paid Continental approximately $80,000 (as shown above, this is not clearly established by the record), the same amount • paid HDC by Continental. HDC objected to introduction of the testimony about the transfer to Watkins, pointing out: lack of relevancy, Watkins was not a party defendant, and just compensation for HDC’s property (CD-I and CD-2) was the singular issue. The commission argues that it was necessary to pierce the corporate veil in order to serve the ends of justice because the corporation (Watkins) was formed for the purpose of inflating property valuations and was no more than a fiction-like vehicle to that end.

The trial court held that the testimony was competent. Excerpted from the record is the following:

BY THE COURT: The court was of the opinion in the last trial that this type of testimony was competent, the court felt that the jury had the right to take into consideration any and all testimony that came from the Highway Commission officials and Mr. May and to make the second or supplemental taking in this case the theory of it it has been necessary that the testimony be given as to what highway authorities and commissions (sic) advised Mr. May .

Then in the presence of the jury, over HDC’s objection, the facts and circumstances of the relationship between Watkins and HDC were developed.

While holding to the principle that piercing the veil of a corporation is not to be undertaken lightly, we will not rigidly maintain the distinct corporate identity where, as would be the case here, to do so would subvert the ends of justice. Johnson & Higgins of Mississippi, Inc. v. Commissioner of Insurance, 321 So.2d 281 (Miss. 1975); 1 W. Fletcher, Cyclopedia of the Law of Private Corporations, § 43 at 209 (Perm.Ed.1974). In ruling upon HDC’s objection, the trial judge indicated it was his opinion that the testimony offered went directly to the issue raised by the defendant landowner as to second or supplemental taking. After hearing all of the testimony, the jury was instructed at HDC’s request not to diminish the award of compensation “because of any dealings or transactions between” HDC and Watkins, “or because of the fact that the stockholders of Watkins . are the wives of . May and . . . Mounger.” We hold upon the particular facts and circumstances of this case that the judge did not commit reversible error in ruling that the probative worth of the testimony (as to Watkins) justified its admission. Rayner v. Lindsey, 243 Miss. 824, 138 So.2d 902 (1962), 31A C.J.S. Evidence § 159 (1964).

Argument of the Commission on cross appeal is that the $30,000 jury verdict of the first trial should be reinstated. The commission also argues that the trial court erred in admitting certain testimony by HDC’s witnesses of comparable sales, but neither of these contentions warrants reversal. Our rule is that whether a comparable sale is sufficiently similar to circumstances existing in a pending case rests largely within the discretion of the trial court. It has not been shown here on the particular facts of this unique case that there was any abuse of discretion on the part of the trial judge in admitting evidence of comparable sales.

We note that the verdict and judgment which we now affirm (after two jury trials) awards HDC an amount based upon the testimony of appraisers who gave consideration to the general enhancement (accruing after announcement of the project) in value of the condemned property. The award returns to HDC a sum much greater than the average amount per acre it paid for the land after the project had been announced. What HDC actually sought from the jury were the profits it would have made had it been allowed to further speculate in alleged service station sites on the condemned property. To uphold HDC’s contentions would result in the commission paying speculative land values for so-called service station sites which in reality are not such sites as per the revised plans. Prior to trial, HDC had acquired similar service station sites (CD-3 and CD-4) just north of the property condemned. The fact that CD-3 and CD-4 were conveyed by HDC to another corporation (Watkins) owned entirely by wives of HDC’s owners, will not justify reversal or awarding HDC compensation comparable to the speculative price HDC received from Continental based on the theory of a second or supplemental taking.

AFFIRMED ON DIRECT AND CROSS APPEALS.

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

GILLESPIE, C. J., took no part.

      . The record is ambiguous as to whether in fact $80,000 was paid Continental by the commission. At trial the commission objected to testimony concerning Continental’s sale to the commission. The trial judge overruled and stated: “He is not attempting to give value.”

      . Whether the commission ever recorded or accepted a conveyance of the .14 acre strip is not discernible from the record.


author: SMITH, Justice, for the Court:

text:
    James B. SUMRALL v. STATE of Mississippi.
    No. 49513.
    Supreme Court of Mississippi.
    March 9, 1977.
    Roy Pitts, Meridian, for appellant.
    A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.

      Before GILLESPIE, SMITH and WALKER, JJ.
   SMITH, Justice, for the Court:

James B. Sumrall was convicted of manslaughter in the Circuit Court of Lauder-dale County and sentenced to serve 15 years in the penitentiary. The conviction must be reversed and the case remanded for a new trial for one reason only.

Sumrall was accused of having shot and killed his paramour and his defense was self-defense. He exercised his right to testify as a witness in his own behalf under the provisions of Mississippi Code Annotated section 13-1-9 (1972). In this situation, the State requested, and the trial court granted, an instruction which authorized the jury to consider “in determining whether witnesses will be believed or not,” (among other things) “the motives and the interest of any witness.” This notwithstanding the fact that this Court has repeatedly condemned the giving of such an instruction where the accused has testified as a witness. See Bryson v. State, 291 So.2d 693 (Miss.1974), Pendergraft v. State, 191 So.2d 830 (Miss.1966), Yelverton v. State, 191 So.2d 393 (Miss.1966), Jones v. State, 154 Miss. 640, 122 So. 760 (1929), Pigott v. State, 107 Miss. 552, 65 So. 583 (1914), Chatman v. State, 102 Miss. 179, 59 So. 8 (1912), Smith v. State, 90 Miss. 111, 43 So. 465 (1907), Townsend v. State, 12 So. 209 (Miss.1892).

The right accorded an accused to testify in his own defense would be of little value if the trial court itself might blight his testimony by instructing the jury that in deciding upon the credibility of the witness, it should consider the interest the witness has in the outcome of the case, since only the accused has such an interest and such interest is obvious and vital to him and to him alone. If the trial court may so instruct the jury, the exercise by an accused of his statutory right to take the -stand would be hopelessly chilled and of little value "if he did take the stand. Moreover, such an instruction is a direct comment by the trial judge upon the weight of the evidence and the credibility of the witnesses, particularly singling out the defendant, since he is, in fact, the one witness who has an interest in the outcome of the trial. This violates Mississippi Code Annotated section 99-17-35 (1972).

Although this Court has repeatedly condemned the giving of instructions of this type, the State has cited a case decided by this Court in 1898 as justification for the granting of the instruction. That case, Brown v. State, 75 Miss. 842, 23 So. 422 (1898) involved a charge of the sale of intoxicating liquor. The case was tried in the mayor’s court on an affidavit charging the offense and the defendant, following conviction, appealed .to the Circuit Court. He was again convicted, following a trial de novo, of having sold the whiskey. On appeal to this Court the giving of an instruction such as the one in this case was assigned as error. This Court, however, declined to reverse, saying:

Surely a defendant who offers himself as a witness on his own behalf does not occupy a position superior to that of other witnesses uncharged with crime. He must be content if placed upon the footing of all other witnesses. (Emphasis added).

(75 Miss, at 846, 23 So. at 423).

That, of course, is exactly what is wrong with the instruction. The defendant is not “placed on the footing of all other witnesses” by the instruction. Quite the contrary. He is singled out because he is the one person interested in the outcome of the case, and the jury is told by the trial judge in the instruction to take this into consideration in deciding whether to believe him or not.

The decisions of this Court both before and since Brown have consistently condemned the instruction. Moreover, Brown ignored and failed to follow the clear mandate of this Court in the earlier (1892) case of Townsend v. State, supra (and cases therein cited). But although Brown has never been followed and must be considered as having been overruled long since by implication, it has never been expressly overruled. In order to clear the record and put the matter at rest finally the decision in Brown v. State, cited above, is expressly overruled.

The case before us is reversed and remanded for another trial.

REVERSED AND REMANDED.

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


author: SMITH, Justice, for the Court. SUGG, Justice,

text:
    George Nedon FAIRLEY, Jr. v. STATE of Mississippi.
    No. 49962.
    Supreme Court of Mississippi.
    March 9, 1977.
    Roger Dean Harris, Biloxi, for appellant.
    A. F. Summer, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
   SMITH, Justice, for the Court.

ON MOTION TO STRIKE TRANSCRIPT OF STENOGRAPHIC NOTES

The State has moved to strike the transcript of the stenographic notes upon the ground that notice to the reporter to transcribe was not given within the time limited. Unquestionably, notice to the reporter was not given and the motion to strike was filed within the ten day period prescribed by Supreme Court Rule 16(d).

However, this case involves the conviction of appellant of murder, the notes have already been transcribed and the record is now on file in the office of the Clerk of this Court. We think the circumstances are such that the Court should consider the whole record, including the transcript, notwithstanding the failure to give timely notice. Supreme Court Rule 33.

The motion to strike will, therefore, be overruled.

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

SUGG and WALKER, JJ., dissent.

SUGG, Justice,

dissenting.

ON MOTION TO STRIKE COURT REPORTER’S NOTES

I dissent because no reason is shown by the record for waiving Miss.Sup.Ct. Rule 16(d) except defendant was sentenced to a life term. I am in sympathy with the decision because Mississippi Code Annotated section 9-13-33 (Supp.1976), which requires a party to notify the court reporter within ten days after perfecting an appeal that the notes of the court reporter are desired for use on appeal, is a harsh rule that may prevent justice being done on appeal. However, the same result could be reached without doing violence to the principle of equal justice under the law by repealing Miss.Sup.Ct. Rule 16(d) and amending Miss. Sup.Ct. Rule 2.

I suggest that Rule 2 be amended by striking the last sentence and designating the remaining portion of the present rule as paragraph (a). I suggest further that paragraph (b) be added as follows:

When an appeal has been perfected to the Mississippi Supreme Court the clerk of the trial court shall notify the court reporter within ten days after the appeal is perfected to transcribe and file his notes unless both the appellant and appel-lee give notice that the notes are not desired on appeal. Section (b) shall be retroactive to all cases which have not been decided by the court.

We laid the foundation for the suggested amendment in Haralson v. State, 308 So.2d 222 (Miss.1975) where we held that Mississippi Code Annotated section 9-13-33 (1972) is a procedural statute that invades the rule making power of this Court. We also held in Haralson that the requirement of giving notice to the court reporter was not jurisdictional and could be waived.

Adoption of the amendment would supersede paragraphs 1, 2 and 3 of Mississippi Code Annotated section 9-13-33 (Supp. 1976) in cases appealed to this Court, but would leave intact paragraphs 4, 5, 6, and 7 of the section. It would insure a review of the evidence before the trial court so that we could determine if substantial justice was reached in each case.

WALKER, J., joins in this dissent.


text:
    CITY OF JACKSON v. Ellis J. SAIK et al.
    No. 49227.
    Supreme Court of Mississippi.
    March 16, 1977.
    John E. Stone, Lloyd M. Montgomery, Jr., Jackson, for appellant.
    Stennett, Wilkinson &• Ward, James A. Peden, Jr., Gene A. Wilkinson, Jackson, for appellees.
   Appeal from Circuit Court, Hinds County; Francis S. Bowling, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

AFFIRMED.


text:
    Ruth Allen CONN v. Robert Lee CONN.
    No. 49275.
    Supreme Court of Mississippi.
    March 16, 1977.
    Roland C. Lewis, Jackson, for appellant.
    E. R. Arrington, Hazlehurst, for appellee.
   Appeal from Chancery Court, Copiah County; Mike Carr, Chancellor.

Before INZER, P. J., and SUGG and LEE, JJ.

AFFIRMED.


text:
    William Stanley WARD v. Perry GILL.
    No. 49240.
    Supreme Court of Mississippi.
    March 16, 1977.
    Laurel G. Weir, Philadelphia, W. H. Johnson, Jr., Decatur, for appellant.
    Snow, Covington, Temple & Watts, T. Kenneth Watts, Meridian, for appellee.
   Appeal from Circuit Court, Newton County; Roy Noble Lee, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

LEE, J., took no part.


text:
    R. C. COLEMAN, father and next friend of David Lee Coleman v. Joseph S. CORRERO and A. J. Correro.
    No. 49255.
    Supreme Court of Mississippi.
    March 16, 1977.
    Abraham, Gleason & Powell, Don 0. Gleason, Greenville, for appellant.
    Robertshaw & Merideth, Philip B. Ter-ney, Greenville, for appellees.
   Appeal from Circuit Court, Washington County; B. B. Wilkes, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    Golie McPherson v. STATE of Mississippi.
    No. 49675.
    Supreme Court of Mississippi.
    March 16, 1977.
    Bullard, Campbell & Gee, Robert W. Gee, Ellis J. Farris, Vicksburg, for appellant.
    A. F. Summer, Atty. Gen., by John C. Ellis, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
   Appeal from Circuit Court, Hinds County; Leon F. Hendrick, Judge.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.


text:
    NORTH MISSISSIPPI RETIREMENT HOME, INC. v. Miss Dorothy BAILEY and Miss Lucille Latta, Co-Executrices, Estate of W. K. Huffington, Deceased.
    No. 48963.
    Supreme Court of Mississippi.
    March 16, 1977.
   Appeal from Chancery Court, Grenada County; Kermit R. Cofer, Chancellor.

. Arthur D. Currie, Jackson, for appellant.

William 0. Semmes, .Lucille T. Latta, Grenada, for appellee.

Before PATTERSON, P. J., SMITH and LEE, JJ., and KENNETH B. ROBERTSON, Commissioner.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART.

GILLESPIE, C. J., INZER, P. J., and ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    Hattie H. THRASH et al. v. Ervin H. GATLIN.
    No. 49245.
    Supreme Court of Mississippi.
    March 16, 1977.
    Guy M. Walker, Laurel, for appellant.
    Leonard B. Melvin, Jr., Melvin & Melvin, Sarah L. Entrekin, Laurel, for appellee.
   Appeal from .Chancery Court, Jones County; J. Shannon Clark, Chancellor.

Before PATTERSON, P. J., and ROBERTSON and BROOM, JJ.

AFFIRMED.

GILLESPIE, C. J., INZER, P. J., and SMITH, SUGG, WALKER and LEE, JJ.; concurring.


text:
    FLACO CORPORATION and Douglas F. Gilmore v. Lettie Mae White FAIRLEY, Individually and as mother and next friend of Malcolm Andrew Fairley, a minor.
    No. 49291.
    Supreme Court of Mississippi.
    March 16, 1977.
    Bryant & Stennis, Rae Bryant, Gulfport, for appellant.
    Cumbest & Cumbest, John L. Hunter, Pascagoula, for appellee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before GILLESPIE, C. J., and SMITH and WALKER, JJ.

REVERSED AND REMANDED.

PATTERSON and INZER, P. JJ., and ROBERTSON, SUGG, BROOM and LEE, JJ., concurring.


text:
    Clyde McGEE and Evelyn McGee v. Raymond CLARK and Mary Clark.
    No. 49217.
    Supreme Court of Mississippi.
    March 16, 1977.

      Felts, Russell & Adams, Nathan P. Adams, Jr., Abraham, Gleason & Powell, Claude H. Powell, Greenville, Wells, Gerald, Brand, Watters & Cox, Martha W. Gerald, Jackson, for appellants.
    Campbell & DeLong, Roy D. Campbell, Jr., Claude L. Stuart, III, Greenville, for appellees.
    Before INZER, SUGG and LEE, JJ. '
   LEE, Justice, for the Court:

Raymond Clark and Mary Clark, his wife, filed suit in the Chancery Court of Washington County against Clyde McGee and Evelyn McGee, husband and wife, for specific performance of an option contract covering six hundred seventy-four (674) acres of land. The chancellor ordered specific performance and the McGees appeal here.

On August 30, 1965, appellants leased unto appellees the land involved for a period of ten (10) years beginning January 1, 1966, and ending December 31, 1975, at a yearly rental of eighteen thousand five hundred dollars ($18,500). At the same time, two (2) options were executed, one being a swap option for lands in Missouri, which has no bearing on this case, and the other granting appellees the right to purchase the land for the sum of three hundred thousand dollars ($300,000), at any time within the ten-year lease period, with the provision that rent for the year in which the option might be exercised would be applied to the purchase price. [Appendix I]. The term of the lease was made subject to the options and the lease and option were interdependent.

Prior to execution of these instruments,, appellants applied for a loan from the Federal Land Bank of New Orleans in the amount of one hundred forty-seven thousand dollars ($147,000), and, on August 19, they received a commitment for same. Ap-pellees agreed to the loan and agreed that they would cooperate with appellants in the consummation of the loan. Attorney Waits from Leland handled the proceedings. It was his opinion that the option agreement and the lease agreement were separate and distinct instruments and that, in the event of default and termination of the lease, the option would still remain in effect. He suggested to appellants that they contact Attorney Burrell McGee, a relative of appellants, and that he prepare a supplemental agreement for execution by the parties. Waits also indicated to Attorney McGee, or at least Attorney McGee received the impression, that the Federal Land Bank required the supplemental agreement and a subordination of the lease and option before it would close the loan.

Attorney McGee wrote Attorney Young in Missouri, who represented appellees, advising him that the supplemental agreement, which he transmitted with a letter dated September 9, 1965, [Appendix II] was required to be executed before the loan could be closed. This was a misrepresentation of the facts, because all the Federal Land Bank required was a subordination of the lease and option to its deed of trust. Attorney McGee did not know that the representation was false nor did Attorney Young. Since appellees had agreed to cooperate with appellants in obtaining the loan, they signed the supplemental agreement [Appendix III] and for that reason only. At the same time, they also executed the subordination agreement.

The lease provided that the rental payments be made on November 1 in each year, and that

“(8) In the event of default by Lessees in the payment of any fixed annual rent and a continuance in such default for a period of thirty (30) days, or in case of breach by Lessees of any of the other covenants or conditions herein contained and their failure to cure such breach within a reasonable time after being so notified in writing by Lessors, Lessors shall have the right to re-enter and take possession of the premises, remove therefrom the goods and chattels of the Lessees and re-let said property to a third party. In such cases, the obligations of Lessees hereunder shall remain unaffected, except that Lessees shall be entitled to have credited against the unpaid rent due and to become due or other liability any amount of rent thus'received from such third party on re-letting for the remainder of the term of this Lease.”

Appellees made the payments from 1966 through 1972 on the following dates:

December 2, 1966.
November 2, 1967
November 22, 1968
November 7, 1969
December 1, 1970
December 14, 1971
October 30, 1972

Appellees testified that McGee told them it was all right to pay the installments later than November 1. However, in December, 1971, McGee told his realtor, Heard, that appellees had defaulted in the rental payment and that he wanted him to collect same and terminate the option. When ap-pellees were contacted by Heard, they immediately paid the 1971 rental, no written notice was given them to quit the premises, and no re-entry of the premises was attempted by appellants. Appellees made the 1972 payment on October SO, 1972, and on August 21,1973, notified appellants in writing that they desired to exercise the option. Roy D. Campbell, attorney for appellees, testified that McGee telephoned him, acknowledged receipt of the written notice to exercise the option and asked him to get in touch with his attorney, Burnell Waits, and to work out a contract with him for the purchase and sale of the lands.

I.

Was the supplemental agreement void for misrepresentation, mutual mistake and want of consideration?

It is undisputed that appellees executed the supplemental agreement and subordination of the lease and option for the purpose of enabling appellants to obtain a Federal Land Bank loan. The representation was material, it induced the appellees to execute the supplemental agreement, and it was false. The result here is the same regardless of whether the misrepresentation was wilfully and knowingly made or whether it was innocently made. Appellants, appellees, Attorney McGee and Attorney Young all thought it was necessary for appellees to execute the supplemental agreement in order for appellants to obtain the Federal Land Bank Loan.

In Rimer v. Dugan, 39 Miss. 477 (1860), the Court stated:

“The record further shows that Defendant had no title to the land he thus claimed to own, and for which complainant exchanged his land.
It is clear from the record that the complainant acted on the faith of defendant’s representation, and that such representation was false. Whether the false representation was made with a knowledge that it was false, or without a knowledge that it was true, is wholly immaterial. If, knowingly, he represented what was not true, there can be no doubt he should be bound to make reparation. If, without knowing whether his representation was true or not, he took upon himself to make it to complainant, and upon the faith of it complainant acted, he is not less bound, although he may have been only mistaken, and therefore comparatively innocent.” 39 Miss, at 482-483.

Also, in Penn Mutual Insurance Co. v. Nunnery, 176 Miss. 197, 167 So. 416 (1936); it was held:

“His good faith is not the test. If the representation was false, and the appellee was justified in relying upon it, then she agreed to the release under a mistake into which she was led by the affirmative act of the appellant’s special agent, and she therefore is not bound thereby. [Citations omitted].” 176 Miss, at 210, 167 So. at 418.

The supplemental agreement does not indicate, nor does the proof reflect, that the agreement was supported by new consideration. A new consideration is essential to the validity of the agreement. Producers Gin Association v. Beck, 215 Miss. 263, 60 So.2d 642 (1952). The chancellor found that the supplemental agreement was void because of the misrepresentation of a material fact and for lack of consideration, and we agree that the chancellor was correct in so holding.

II.

Was the option sufficiently complete and capable of being specifically performed?

Appellants contend that the option cannot be specifically enforced because material elements of the instrument are missing, rendering it indefinite, uncertain and ambiguous. The instrument provides (1) that appellants sell to grantees the lands for $300,000, (2) the time and method for exercising the option, (3) upon exercise of the option a binding contract of sale and purchase be executed, (4) that appellants pay cost of Internal Revenue stamps, recording fees, attorneys fees and commission fees, (5) the method of payment of the purchase price together with the interest rate, number and amount of installments, (6) that the note contain a prepayment clause and for payment of attorneys’ fees, and (7) that grantors deliver unto appellees a good and sufficient warranty deed conveying the lands free and clear from liens.

In Jones v. McGahey, 187 So.2d 579 (Miss.1966), this Court said:

“A contract is sufficiently definite if it contains matter which will enable the court under proper rules of construction to ascertain its terms, including consideration of the general circumstances of the parties and if necessary relevant extrinsic evidence. Having found a contract to have been made, an agreement should not be frustrated where it is possible to reach a reasonable and fair result. Corbin, Contracts, § 95 (1963); 17 Am.Jur.2d Contracts, §§ 75-77 (1964); cf. Russell v. Douglas, 243 Miss. 497, 504, 138 So.2d 730 (1962).” 187 So.2d at 584.

In Burrow v. Timmsen, 223 Cal.App.2d 283, 35 Cal.Rptr. 668, 100 A.L.R.2d 544 (1963), the District Court of Appeals for the Second District reversed a judgment of the Superior Court of Los Angeles County denying specific performance of a land sale contract. There was written acceptance of a written offer to sell real estate for fifty thousand dollars ($50,000) with fifteen thousand dollars ($15,000) to be paid down and with a deferred balance of thirty-five thousand dollars ($35,000) evidenced by a note bearing interest at seven percent (7%) per annum, principal and interest payable at two hundred sixty dollars ($260) per month. The note was to be secured by a second deed of trust subordinate to a construction loan not to exceed three hundred thousand dollars ($300,000), with maximum interest rate of nine percent (9%) and maximum maturity date of thirty (30) years. The California court said the essentials of the agreement are the amount of the debt and the terms of payment, including the interest agreed upon, and then stated:

“We have concluded that the agreement is not so uncertain as to be incapable of enforcement. The modern trend of the law is to favor the enforcement of contracts, to lean against their unenforce-ability because of uncertainty, and to carry out the intentions of the parties if this can feasibly be done. Neither law nor equity requires that every term and condition of an agreement be set forth in the contract. [Citations omitted]. The usual and reasonable terms found in similar contracts can be looked to, unexpressed provisions of the contract may be inferred from the writing, external facts may be relied upon, and custom and usage may be resorted to in an effort to supply a deficiency if it does not alter or vary the terms of the agreement. [Citations omitted].” 35 Cal.Rptr. at 671, 100 A.L.R.2d at 549.

We are of the opinion that the option is sufficiently clear, definite and certain in its terms, that it is capable of, and requires, specific performance, and that the chancellor committed no error in ordering specific performance.

III.

Did the trial court err in admitting testimony of Attorney McGee in violation of the privileged communication statute?

Attorney McGee testified that he had no knowledge of Federal Land Bank requirements and that he wrote the letter of September 9 based on information received from Attorney Waits. Appellants took, the deposition of Attorney Waits prior to the trial and inquired about the lease, options, what Waits and Attorney McGee thought they meant, the supplemental agreement and how it originated. Further, Attorney McGee contacted appellee’s counsel on two occasions about the matter before trial. We are of the opinion that there was no violation of the attorney-client relationship and that there is no merit in this assignment.

We have carefully considered the other assignments of error and are of the opinión that they are without merit and do not warrant discussion.

The case, therefore, is affirmed. AFFIRMED.

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

APPENDIX I

OPTION

THIS OPTION AND AGREEMENT, entered into this 30th day of August. 1965, by and between CLYDE McGEE, JR. and EVELYN McGEE, husband and wife, of Leland, Mississippi, hereinafter referred to as “Grantors” and RAYMOND CLARK and MARY CLARK, husband and wife, of Por-tageville, Missouri, hereinafter referred to as “Grantees”; WITNESSETH:

FOR AND IN CONSIDERATION of the sum of ONE DOLLAR ($1.00) and other valuable considerations, the receipt of which is hereby acknowledged, Grantors do hereby grant unto Grantees, an Option as hereinafter set forth, to-wit:

Grantors agree to sell to Grantees, for the sum of THREE HUNDRED THOUSAND no/100 ($300,000.00) DOLLARS, to be paid as hereinafter provided, the following described real estate, to-wit:

All of Section Fifteen (15), Township Eighteen (18) North, Range Six (6) West, lying West of Deep Slough and Six Mile Bayou, all of Section Fourteen (14), Township Eighteen (18) North, Range Six (6) West, lying South and West of Deep Slough, and the North Half (N 1/2) of Section Twenty-Two (22), Township Eighteen (18) North, Range Six (6) West, all of said lands being located in Washington County, Mississippi, and containing 674 acres, more or less,

said lands being now under Lease to Grantees.

This Option shall continue for a period of ten (10) years from the date hereof, terminating on November 1, 1975, at 12 o’clock midnight; provided, however, that Grantees shall notify Grantors in writing of their desire to exercise said option and said notice is received by Grantors prior to midnight, November 1, 1975.

In the event Grantees desire to exercise said option as provided herein, Grantees shall notify Grantors in writing of the same and in the event said notice is received by Grantors prior to midnight, November 1, of any given year during the period of said option, Grantors agree to refund to Grantees the annual rental payment theretofore paid under the said Lease for said year.

It is further agreed by and between the parties hereto that this Option is granted on the following additional conditions:

(a) At the time of exercise of this Option, the Parties hereto shall execute a binding Contract of sale and purchase.
(b) All costs and expenses incurred in said sale shall be borne by Grantors, the same not to exceed the cost of internal revenue stamps, recording fees, attorneys’ fees and brokerage or commission fees, if any.
(c) Grantees shall, upon consummation of the Contract, pay to Grantors, in cash, the sum of TWO HUNDRED THOUSAND no/100 ($200,000.00) DOLLARS, and shall execute a Promissory Note in the amount of ONE HUNDRED THOUSAND no/100 ($100,000.00) DOLLARS, secured by Second Deed of Trust on subject lands, to Grantors. Said Promissory Note shall bear interest at the rate of five and one-half percent (5%) per an-num, and shall be payable TEN THOUSAND no/100 ($10,000.00) DOLLARS, plus accrued interest, one year from the date of the consummation of said Contract, and TEN THOUSAND no/100 ($10,000.00) DOLLARS, plus accrued interest, on the same day of each year thereafter, until said Note and interest be fully paid. Said Note shall contain a clause providing for prepayment without penalty, and shall also contain a clause providing for payment of Attorney fees for collection.
(d)Grantees shall be permitted by Grantors to borrow the sum of ONE HUNDRED, FIFTY, THOUSAND no/100 ($150,000.00) DOLLARS, on said lands, and to secure said loan by First Deed of Trust on subject lands.

It is further agreed by and between the Parties hereto that in the event said Option is exercised in accordance with the terms and conditions herein set out, Grantors agree to deliver to Grantees a good and sufficient General Warranty Deed conveying good and merchantable title to said lands, free and clear of all liens and encumbrances.

WITNESS OUR SIGNATURES, this, the 30th day of August. 1965.

/s/ Clyde McGee. Jr. Clyde McGee, Jr.

/s/ Mrs. Evelyn M. McGee Evelyn McGee — GRANTORS /s/ Raymond Clark

Raymond Clark /s/ Mary Clark Mary Clark — GRANTEES

(Acknowledgments hereto annexed.)

STATE OF MISSISSIPPI \ ss COUNTY OF WASHINGTON J

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said County and State, CLYDE McGEE, JR. and EVELYN McGEE, who acknowledged that they signed and delivered the foregoing instrument on the day and year therein mentioned as their own act and deed.

GIVEN UNDER MY HAND AND OFFICIAL SEAL, the 31st day of August, 1965.

/s/ Anne E. Smith

Notary Public

My commission expires: February 5, 1967.

STATE OF MISSISSIPPI \ gg COUNTY OF WASHINGTON J S '

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said County and State, RAYMOND CLARK, who acknowledged that he signed and delivered the foregoing instrument on the day and year therein mentioned as his own free act and deed.

GIVEN UNDER MY HAND AND OFFICIAL SEAL, this, the 31st day of August, 1965.

/s/ Anne E. Smith Notary Public

My Commission Expires: February 5, 1967.

STATE OF MISSOURI 1 ss> COUNTY OF NEW MADRID J

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said County and State, MARY CLARK, who acknowledged that she signed and delivered the foregoing instrument on the day and year therein mentioned as her own free act and deed.

GIVEN UNDER MY HAND AND OFFICIAL SEAL, this, the 31st day of August, 1965.

/s/ Bettv McAlister Notary Public

My Commission Expires: 6-10-69.

APPENDIX II

September 9, 1965

Mr. Linus E. Young

Attorney at Law

Portageville, Missouri

Re: McGee-Clark transaction

Dear Mr. Young:

In accordance with our telephone conversation today, I enclose a supplemental agreement, subordination, and a letter from The Federal Land Bank of New Orleans to Mr. McGee.

The attorney for The- Federal Land Bank has requested that we obtain a supplemental agreement to the lease and two options executed on August 30, 1965, with the provision as contained in the attachment to this letter. The supplemental agreement will be necessary in order for the Federal Land Bank to issue their check. The subordination agreement attached will be completed at the time the deed of trust to the Federal Land Bank has been recorded.

I would appreciate your reviewing the supplemental agreement and subordination together with the letter from The Federal Land Bank and advising me as soon as possible of any changes that you feel should be made.

After talking with you this morning, Mr. Martin Heard advised that he had discussed this matter with Mr. Clark and Mr. Clark hád stated that he had no objection to the execution of the subordination.

As you can see from the letter addressed to Mr. McGee from the Federal Land Bank, dated August 26, 1965, this loan may be paid at any time regardless of source and without penalty. It may also be transferred in the event Mr. Clark should desire to assume the loan. Nevertheless, should Mr. Clark exercise one of the options this loan could be paid in full simultaneously with the loan proceeds from a lending institution of Mr. Clark’s choice.

I do not believe that either of these instruments will materially affect any of the pri- or agreements executed by the Clarks and the McGees.

Very truly yours,

/s/ Burrell 0. McGee

Burrell 0. McGee

BOM/lmm

Ends.

cc: Mr. L. Martin Heard 209 Broad Street Leland, Mississippi

cc: Mr. Clyde McGee, Jr. 204 Cypress Leland, Mississippi

Appendix III to follow.

SUPPLEMENTAL AGREEMENT

This Supplemental Agreement entered into on this, the 20th day of September, 1965, by and between CLYDE McGEE, JR. and EVELYN McGEE, husband and wife, of Leland, Mississippi, hereinafter referred to as “Grantors,” and RAYMOND CLARK and MARY CLARK, husband and wife, of Portageville, Missouri, hereinafter referred to as “Grantees,”

WITNESSETH:

WHEREAS, the parties hereto have heretofore on August 30, 1965, entered into a lease agreement and two options; and

WHEREAS, grantors have obtained a limited loan commitment from the Federal Land Bank of New Orleans in the principal amount of $150,000.00 and in order to in-, duce the said Federal Land Bank of New Orleans to make said loan, the parties hereto agree to supplement said lease and options by the following additional stipulations;

NOW, THEREFORE, for and in consideration of the mutual promises herein contained and other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto do covenant and agree as follows, to-wit:

1.

In the event of default by grantees in any of the covenants, conditions or agreements contained in the aforesaid lease agreement dated August 30, 1965, then all rights and privileges granted to grantees by grantors in the aforesaid two options, both dated August 30, 1965, shall terminate and said options shall thereupon be null and void and of no effect.

2.

Grantors have obtained a commitment from the Federal Land Bank of New Orleans for a loan not to exceed the principal sum of $150,000.00, grantors to have the right and option of pre-paying the same at any time during the term thereof, and grantees for the same consideration do hereby agree that the aforesaid lease agreement and options will be subordinated to any such loan upon written request to grantees.

3.

Grantors agree that in the event of the exercise of either of the aforesaid options by grantees as provided therein, grantors will on written request of grantees satisfy and cancel the aforesaid loan within a reasonable time from receipt of request therefor.

WITNESS OUR SIGNATURES, this the 20 day of September, 1965.

/s/ Clyde McGee. Jr. Clyde McGee, Jr.

/s/ Evelvn McGee Evelyn McGee

GRANTORS

/s/ Raymond Clark Raymond Clark

/s/ Mary Clark Mary Clark

GRANTEES

STATE OF MISSISSIPPI

COUNTY OF WASHINGTON

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said County and state, the within named Clyde McGee, Jr. and Evelyn McGee, husband and wife, who severally acknowledged that they signed and delivered the foregoing instrument on the day and year therein mentioned as their own act and deed.

GIVEN UNDER MY HAND AND OFFICIAL SEAL, this, the 21 day of September, 1965.

/s/ F. J. Wiston Notary Public

(SEAL)

My commission expires: July 13, 1966.

STATE OF MISSOURI

COUNTY OF NEW MADRID

PERSONALLY APPEARED BEFORE ME, the undersigned authority in and for said county and state, the within named Raymond Clark and Mary Clark, husband and wife, who severally acknowledged that they signed and delivered the foregoing instrument on the day and year therein mentioned as their own act and deed.

GIVEN UNDER MY HAND AND OFFICIAL SEAL, this the 20 day of September, 1965.

/s/ Linus E. Young Notary Public

(SEAL)

My commission expires: 1-26-69