author: PATTERSON, Chief Justice,

text:
    The WESTERN CASUALTY & SURETY COMPANY v. The MISSISSIPPI BANK.
    No. 53386.
    Supreme Court of Mississippi.
    Dec. 8, 1982.

      Ott & Purdy, William R. Purdy, Jackson, for appellant.
    Heidelberg, Woodliff & Franks, Sam E. Scott, George F. Woodliff, III, Jackson, for appellee.
    Before PATTERSON, C.J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

This appeal arises from the Chancery Court of the First Judicial District of Hinds County, wherein The Mississippi Bank (Bank) brought suit against The Western Casualty & Surety Company (Western) and C.E. Frazier Construction Company, Inc. (Frazier), alleging that it was entitled to receive several progress payments assigned to the Bank by Gallagher Mechanical, Inc. (Gallagher), as security for loans made to Gallagher by the Bank.

Frazier was the general contractor for additions and alterations to the Navy Reserve Training Building as well as the North Jackson Elementary School in the City of Jackson. Gallagher was a sub-contractor to Frazier for certain phases of the work on both of these projects. A condition of the contract between Frazier and Gallagher was that the sub-contractor assure its performance to Frazier by furnishing a performance bond. Western entered into such bond with Gallagher as principal, Western as surety, and Frazier as obligee. The bond assured Frazier, in the event Gallagher defaulted, that Western would complete the contract and make available as the contract progressed, sufficient funds for its completion. The bonds for both the Reserve and School contracts are identical except for the dates and amounts.

Due to cash flow problems precipitated by an extended strike Gallagher obtained loans from the Bank assigning as collateral progress payments from the two Frazier projects. The Bank understood the assignments of the progress payments were subject to architectural approval as well as back charges, if any, of Frazier. The contracts between Frazier and Gallagher provided that Gallagher would “not assign this subcontract or any amounts due or to become due thereunder without the written consent of the contractor.” And further, “does hereby agree that if the sub-contractor should neglect to prosecute the work diligently and properly or fail to perform any provision of the contract, the contractor, ... make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the sub-contractor,

In February of 1980 Gallagher defaulted on both contracts leaving substantial amounts due its materialmen, workmen and to the Bank, thereby creating potential losses in substantial amounts to Frazier and Western. Thereafter the Bank filed this suit against Frazier and Western. It prayed for a monetary judgment of $82,-986.30 against Frazier for the alleged wrongful withholding of progress payments from the Bank. The Bank further alleged that, “the defendant, The Western Casualty & Surety Company, Inc., is entitled to receive nothing from the above described assigned progress payments”, and prayed an adjudication that Western “be entitled to nothing.” There was also a prayer for a discovery and accounting as well as for general relief. Following an extensive hearing Frazier was dismissed, a judgment of $38,729.00 was awarded the Bank against Western and Western was awarded a judgment of $7,726.15 against the Bank. Aggrieved, Western appeals and the Bank cross-appeals.

After serious effort to analyze the facts and relate them to legal principles to reach a just result we are forced to the conclusion the record before us will not permit such accomplishment. We therefore reverse and remand for a new trial.

The first barrier we encounter is that the complainant did not seek a monetary judgment against Western but rather a judgment, in the nature of a declaration, that Western be adjudicated to have no interest in the progress payments. We are unable to discern in the record any request for the bill of complaint to be amended nor do we think the scope of the general prayer could be enlarged to include an award upon a different theory of the case. Indeed, the first reference to any change in the thesis of the bill of complaint appears in the court’s opinion, after the close of trial, where the court stated the briefs reveal that the suit was really between the Bank and Western. It need be repeated, after the above revelation, the cause continued to judgment without remand for notice through conformed pleadings.

Moreover, the problem was compounded, when the trial court excluded evidence concerning two assignments totaling $27,498 upon objection by the defendants but nevertheless included this amount in his opinion and decree against Western. Upon motion being made to correct the decree to exclude this amount the trial court declined to do so, reasoning that he would leave that task to this court.

In sustaining the defendant’s objection to the introduction of the mentioned assignments, the trial court relied upon Frazier v. Nat. Elec. Supply Co., Inc., 362 So.2d 609 (Miss.1978), which affirmed the former rule of law that an assignment by a sub-contractor, if agreed to by the parties, was subject to the approval or disapproval of the general contractor. While this case was on appeal Frazier v. Nat. Elec, was overruled by The Mississippi Bank v. Nickles & Wells Construction Company, Inc., and The Western Casualty & Surety Company, 421 So.2d 1056, 1060 (Miss.1982), “insofar as it held that section 75-9-104(f) excluded construction contracts from chapter 9 of the code, and for this reason that a construction contract could effectively prohibit an assignment of money due thereunder without the written consent .of the obli-gor. We leave intact our law on assignments absent statutory restrictions imposed by the code.” The decision in Nickles & Wells further complicates this case because the testimony concerning the progress payments (previously excluded) might now be properly admitted into evidence. This in turn will probably give rise to other defenses that Western might impose.

Another factor influencing our conclusion for a new trial is the lack of proof as to whether the loan proceeds secured by the assignments in issue were used for the payment of materialmen and laborers on these two Frazier projects. As best we can determine the proceeds of the loans went into some eight projects, including those in litigation here, that Gallagher then had in progress. Hopefully, on retrial, more detailed evidence will be presented concerning the utilization of the loan proceeds on the two Frazier projects. This evidence should be helpful to the trial court in adjudicating the priorities to the funds, as between Western and the Bank.

We are reluctant to reverse and remand for a new trial but due to the state of the pleadings and the evidence, we are of the opinion a new trial is necessary so that a just decision might be reached.

REVERSED AND REMANDED ON BOTH DIRECT AND CROSS-APPEALS.

SUGG and WALKER, P.JJ., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


source: Caselaw Access Project

author: SUGG, Presiding Justice,

license: Public Domain

text:
    Mrs. Jane PORTER v. Dr. Shanti PANDEY, et al.
    No. 53499.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    Banks & Nichols, Coolidge C. Anderson, Jackson, for appellant.
    Adams, Forman, Truly, Ward, Smith, & Bramlette, R. Kent Hudson, Natchez, for appellee.
    Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.
   SUGG, Presiding Justice,

for the Court:

This appeal is from an order of the Jefferson County Circuit Court sustaining a demurrer filed by Jefferson County Hospital to appellant’s amended declaration.

In June, 1980, appellant filed her amended declaration against the Jefferson County Hospital, appellee here, Dr. Pandey, three other doctors, and an assistant to an anesthesiologist, charging that her son’s death was the result of the negligence of the defendants. Before trial, according to the brief of appellant, appellant settled the case against all the individual defendants leaving appellee as the only remaining defendant.

Appellant alleged in her amended bill of complaint that her son, Michael Shay Porter, was admitted to the Jefferson County Hospital on March 4, 1974, and that she engaged the services of Dr. Shanti Pandey to diagnose and treat her son’s illness. At the time of admission her son was nauseated, vomiting and suffered from shortness of breath. Dr. Pandey was selected and employed by appellant and undertook to treat her son while he was a patient in the Jefferson County Hospital. Dr. Pandey’s treatment consisted of the administration of antibiotics, X-ray and other drugs. Appellant’s son remained in the Jefferson County Hospital for three days, and at the insistence of appellant, Dr. Pandey transferred him to the Jefferson Davis Memorial Hospital in Natchez and placed him under the care of another physician. The physician diagnosed the patient’s problem as a ruptured appendix requiring immediate surgery. A surgeon was engaged to perform the operation and an anesthesiologist and his assistant were engaged to administer the anesthetic necessary for the operation. Appellant’s son suffered a cardiac arrest while in surgery and died. Appellant alleged in her declaration that Dr. Pandey was guilty of negligence as follows:

Dr. Pandey failed to properly diagnose and treat Michael Shay Porter’s condition; failed to have control of and exercise the requisite knowledge and skill for the treatment and diagnosis of Michael Shay Porter’s condition; failed to consult with any experts and seek their assistance if Michael Shay Porter’s illness was outside of her knowledge and skill for diagnosis and treatment; failed to properly attend Michael Shay Porter during the time of this care and failed to prevent deterioration of his condition by not giving proper orders for his care.

Appellant alleged the negligence of ap-pellee in the following language:

Jefferson County Hospital failed to properly select, train and supervise Dr. Pandey or any other of its employees rendering care to Michael Shay Porter.

There is no allegation that any of the nursing staff of the Jefferson County Hospital committed any negligent act or omission or failed to properly attend appellant’s son. Neither are there any allegations that any of the hospital’s employees failed to carry out any order given them by Dr. Pandey who was the treating physician.

Appellant’s principal argument for liability on the part of the Hospital is that it failed to supervise Dr. Pandey in the diagnosis and treatment of her son.

By statute the right to practice medicine in this state may be granted only to qualified persons after examination by the State Board of Medical Licensure. Sections 73-25-1, et seq., Mississippi Code Annotated (1972 as amended). Hospitals are not authorized to engage in the practice of medicine.

Appellant relies on cases cited in 12 A.L.R. 4th 57 (1982) where liability has been imposed on a hospital on the theory of the hospital’s negligence in failing to review, supervise, or require consultation about the treatment given by an attending physician where the situation indicates that the hospital had opportunity for such review but failed to exercise it, or that its servants were negligent in failing to call the attention of the proper hospital authorities to the inadequacy of the treatment being given.

Appellant states in her brief that the doctrine of respondeat superior is not at issue but seeks to hold the hospital liable for the death of her son on the theory advanced in the cases heretofore referred to.

The hospital’s only contact with appellant’s son was that he was admitted as a patient by Dr. Pandey, the attending physician. Of course, the hospital was under a duty to carry out the orders of the attending physician but the amended declaration does not charge the hospital with failure to carry out the orders of the attending physician. Succinctly stated, appellant charged Dr. Pandey with negligence for failing to properly diagnose and treat her son and based the hospital’s negligence on its failure to supervise Dr. Pandey in her diagnosis and treatment.

As previously noted, our statutes provide that a license to practice medicine may be issued only to a duly qualified person and there is no statutory authority which permits a hospital to diagnose and order treatment for a patient. Appellant is urging this Court to impose a duty on a hospital to supervise the attending physician of a patient, and in effect, to second guess the attending physician’s diagnosis and treatment. If we were to impose that duty on hospitals, hospitals would then be required to engage in the practice of medicine contrary to our statute. This we decline to do.

We therefore hold that the demurrer was properly sustained because the amended declaration failed to state a cause of action against the hospital.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: WALKER, Presiding Justice,

text:
    Rodney CRAWLEY v. STATE of Mississippi.
    No. 53877.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    Robert B. Prather, Columbus, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and HAWKINS, JJ.
   WALKER, Presiding Justice,

for the Court:

The appellant, Rodney Crawley, was indicted in the Circuit Court of Lowndes County, Mississippi, for the crime of burglary and as a habitual criminal. Upon conclusion of trial, the jury entered its verdict of “Guilty as Charged.” A presentencing hearing was held in accordance with Rule 6:04 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. Certified copies of prior convictions of appellant in Lowndes County, Mississippi, both on charges of burglary, were introduced. In Cause No. 6750 he was sentenced to three years in the Mississippi Department of Corrections and in Cause No. 7055 he was sentenced to a five-year term. Appellant, introducing no evidence to contradict the pri- or convictions, was sentenced as a habitual criminal pursuant to Mississippi Code Annotated section 99-19-81 (Supp.1982) to a term of seven years with the Mississippi Department of Corrections.

Having perfected his appeal to this Court, appellant asserts the lower court erred in sentencing him as a habitual criminal. He does not assign error in the guilt phase of the trial.

Appellant contends that section 99-19-81 cannot be applied to enhance one’s punishment on account of a former conviction unless the offense for which he is on trial was committed after the conviction of the prior offense. The offense for which he was charged in Cause No. 7055 was committed on the same day as the offense in the present trial which was Cause No. 7221. In support of his argument he has cited several cases from our sister state of Florida, which are inapplicable for obvious conflicts between the Florida statute dealing with sentencing of habitual criminals and section 99-19-81. The case of Gonzalez v. United States, 224 F.2d 431 (5th Cir.1955) cited by appellant is also clearly distinguishable.

The statute under which appellant was sentenced as a habitual criminal clearly states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. (Emphasis added).

If, indeed, our legislature intended that the third offense take place after conviction of two previous offenses the language would have been explicit as it is under Mississippi Code Annotated section 97-31-27 (1972) dealing with intoxicating beverage offenses and conviction.

We are of the opinion that appellant was properly indicted as a habitual criminal pursuant to Mississippi Code Annotated section 99-19-81 (Supp.1982). At the time he was sentenced in the case sub judice, he had been twice previously convicted of burglary and sentenced to terms of more than one year for each conviction. Although one of the previous offenses occurred on the same day as the one included in the present case, it was separately brought and arose out of a separate incident which occurred at a different time of day which brings it clearly within the statute.

Therefore, the judgment and conviction are affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG, P.J., and BROOM, ROY NOBLE LEE, BOWLING, HAWKINS and DAN M. LEE, JJ., concur.

PRATHER, J., took no part.

      . Mississippi Uniform Criminal Rules of Circuit Court Practice, Rule 6:04, 370-374 So.2d at LXXVIII (Miss.1979).

      . The pertinent part of the statute states: “(c) By imprisonment in the state penitentiary not less than one year nor more than five years for conviction the third time under this section for the violation thereof after having been twice convicted of its violation.” (Emphasis added).

      . See also Yates v. State, 396 So.2d 629 (Miss. 1981); Jordan v. State, 383 So.2d 495 (Miss. 1980).


author: ROY NOBLE LEE, Justice,

text:
    Robert JACKSON v. STATE of Mississippi.
    No. 53993.
    Supreme Court of Mississippi.
    Dec. 8, 1982.

      Henry L. Lackey, Calhoun City, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Robert Jackson was convicted in the Circuit Court of Calhoun County, Honorable William R. Lamb, presiding, for aggravated assault and sentenced to twelve (12) years in the custody of the Mississippi Department of Corrections. He has appealed and assigns the following errors in the trial below:

(1) The circuit court erred in allowing the district attorney to read the statement of the victim/prosecuting witness over appellant’s objection.

(2) The circuit court erred in failing to grant a new trial after learning that a juror was related by marriage to the prosecuting witness.

The appellant shot Jessie William Glaspie with a small-caliber pistol, after an argument between them. Appellant’s defense was self-defense and since there is no assignment of error relating to the weight of the evidence, it is not necessary to detail the facts further.

I.

The appellant contends that the lower court erred in permitting the district attorney to read before the jury a statement given by Glaspie to the sheriff during the sheriff’s investigation of the crime. Objection was made to the statement which was sustained as to introduction of the written instrument itself, but the lower court permitted the district attorney to read it to the jury.

When the attorney for appellant cross-examined Glaspie, he interrogated him about the statement. The attorney was attempting to impeach Glaspie’s credibility and opened up the matter of what the statement out of court contained. An objection was made to the district attorney reading the statement, and the court asked the attorney:

BY THE COURT: Just a minute and your grounds, Mr. Lackey.
MR. LACKEY: We stand upon our objection, Your Honor.

The objection was general without specifying the ground upon which it was based.

In criminal and civil cases, parties may not show statements made out of court for the purpose of bolstering the testimony of a witness in court. In Anderson v. State, 171 Miss. 41, 48, 156 So. 645, 647 (1934), the Court said:

This court has consistently condemned the practice of undertaking to bolster up the testimony of a witness on the stand, and to strengthen his credibility to proof of his declarations to the same effect as sworn to by him out of court.

Also, in Harrison v. Gatewood, 211 Miss. 121, 127, 51 So.2d 59, 61 (1951), the question was presented during a civil trial, and the Court held that permitting such testimony was erroneous, stating:

In a long line of cases this Court has held that a witness cannot be bolstered and corroborated by proving that on other occasions he has made statements out of court conforming to his testimony given in court and that the admission of such testimony in a close case is always reversible error. Byrd v. State, 154 Miss. 742, 123 So. 867; Jeff coat v. State, 108 Miss. 585, 67 So. 56; Johnson v. State, 80 Miss. 798, 32 So. 49; Williams v. State, 79 Miss. 555, 31 So. 197.

We are of the opinion that in the case sub judice, the appellant’s attorney opened the matter of the former statement in an effort to discredit the witness Glaspie, and that, even though the court sustained objection to introduction of the instrument itself, permitting the district attorney to read the instrument (which was substantially identical to the testimony of Glaspie), did not constitute reversible error. Also, the point was not properly preserved by appellant since no specific objection was made to such statement. Lay v. State, 310 So.2d 908 (Miss.1975); Norman v. State, 302 So.2d 254 (Miss.1974).

We notice that the State’s brief states: “This Court has held many times that if an assignment of error is not listed in the defendant’s motion for a new trial in the lower court, it is not preserved on appeal. Jefferson v. State, 386 So.2d 200 (Miss. 1980).”

Many attorneys in both criminal and civil cases are unfamiliar with the requirement as to what matters assigned as error must be included in a motion for new trial. In order to clarify Jefferson v. State, supra, and to bring the correct procedure to the attention of the Bench and Bar, we cite them to Colson v. Sims, 220 So.2d 345, 346, fn. 1 (Miss.1969), which states the proper procedure and rule:

1. Motion for a new trial. Since there seems to be some confusion as to what is required to be set out in a motion for a new trial in order to take advantage of the alleged error on appeal to this Court, it may be helpful for us to point out that it is not necessary to make a motion for a new trial grounded upon errors shown in the official transcript of the record, including the pleadings, transcribed evidence, instructions, verdict and judgment of the court. Miss. Code 1942 Ann. §§ 1639, 1644 (1956).
For many years Rule 6 of the Rules of the Supreme Court of Mississippi expressly permitted an appeal on matters of record without the necessity of a motion for a new trial. The 1964 Rules of the Supreme Court left out our old Rule 6, because as we pointed out in the “Foreword”: “Former Rule 6(3), stating that the right to review is not dependent upon the filing of a motion for a new trial in the trial court, has been deleted, because this aspect of the scope of appellate review is established by case law.” See Graham v. Swinney, 174 Miss. 579, 165 So. 438 (1936).
On the other hand there are certain errors that must be brought to the attention of the trial judge in a motion for a new trial, so that the trial judge may have an opportunity to pass upon their validity before this Court is called upon to review them. Although it is impossible to envision every situation which may arise, the following list will serve to activate our memories:
(1) All new matters, now shown of record and not merely cumulative irregularities, mistakes, surprises, misconduct and newly discovered evidence (Redmond v. Marshall, 162 Miss. 359, 137 So. 733 (1931); Miss.Code 1942 Ann. §§ 1536, 1537 (1956)), may be set out in a motion for a new trial.
(2) Motion made upon the ground of inadequate or excessive damages must be made in a motion for a new trial. Watson v. Holeman, 169 Miss. 585, 153 So. 669 (1934); Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798 (1933); Coccora v. Vicksburg Light and Traction Co., 126 Miss. 713, 89 So. 257 (1921).
(3) Motion for new trial must be made where it is contended that the verdict of the jury is against the overwhelming weight of the evidence. Gil-mer v. Gunter, 46 So.2d 447 (Miss.1950).
(4) The denial of a continuance in the trial court is not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground, making the necessary proof to substantiate the motion. King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962); Lamar v. State, 63 Miss. 265 (1885).

II.

The appellant next contends that the lower court erred in failing to grant a new trial after the court was informed that a juror was related by marriage to Glaspie, the victim and prosecuting witness.

After conviction, the lower court had a hearing to determine whether or not juror Ed Hayes West was related to Glaspie, and whether or not the court should grant a new trial for that reason.

The juror West testified that his wife was far-off related to Glaspie, that he did not know just what the relationship was, that it was probably not less than third cousin, and that he had not considered himself related to Glaspie. West further testified that such connection had no influence on his verdict. The lower court found that appellant was not prejudiced by West’s serving as a juror, and that appellant received a fair trial.

We are unable to say that the trial judge was wrong in such finding, after the said hearing, and we are of the opinion that, under the testimony and circumstances surrounding the juror, he did not willfully mislead the court or the attorney and that no prejudice resulted to the appellant by reason of West serving as a juror.

There being no reversible error in the record, the judgment of the lower court is affirmed.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ„ concur.


text:
    In the Matter of the ADOPTION OF CHILD X and Child Y, Minors.
    No. 53,921.
    Supreme Court of Mississippi.
    Dec. 8, 1982.
    Rehearing Denied Jan. 5, 1983.
    Hugh W. Tedder, Jr., William Sebastian Moore, Jackson, for appellant.
    Hobbs, Hobbs & Peeples, Ralph L. Pee-ples, Charles S. Wright, Brookhaven, for appellee.
   Appeal from Chancery Court, Lincoln County; Mike Carr, Chancellor.

Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

AFFIRMED.


text:
    Curtis ODOM v. STATE of Mississippi.
    No. 53983.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
   Appeal from Circuit Court, Jackson County; Robert T. Mills, Judge.

Bernard Gautier, Pascagoula, for appellant.

Bill Allain, Atty. Gen., by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before WALKER, P.J., and BROOM and HAWKINS, JJ.

AFFIRMED.


text:
    Joe BARBER, et al. (In Their Capacity as Board of Education of Marion County, Mississippi) v. Steven D. TURNEY (of the Relation of the Attorney General of the State of Mississippi).
    No. 53903.
    Supreme Court of Mississippi.
    Dec. 15, 1982.
    Fred L. Cooper, Columbia, for appellants.
    Roberts & Easterling, S. Wayne Easter-ling, Hattiesburg, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE, and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Steven D. Turney filed suit in the Circuit Court of Marion County against the Board of Education [Board] seeking a writ of mandamus and an order requiring the Board to fix a monthly rental of sixteenth section land, leased by Turney, based upon the fair market rental value of the property and to establish a uniform and proper percentage of fair market rental value on all sixteenth section lands in Marion County. The circuit court, Honorable R.I. Prichard, III, presiding, entered an order granting the writ of mandamus and ordered the Board to appoint a competent appraiser to appraise all sixteenth section lands in Marion County, classified as “Farm Residential,” based upon the fair market rental value, that the Board then determine whether the figures in the new appraisal constitute a reasonable amount and offer appellee and other prior leaseholders first option to renew their leases for such amounts. The Board, being aggrieved at the judgment of the lower court, has appealed here.

The question presented is whether or not the lower court erred in fixing the method for determining the fair rental value of sixteenth section lands of Marion County.

The facts of the case are contained in a stipulation and are not in dispute. Appellant is the holder of a thirty-acre lease of sixteenth section lands in Marion County, classified as “Farm-Residential” and, as holder of such lease, has a prior right, exclusive of all other persons, to release or extend the existing lease under Mississippi Code Annotate § 29-3-63 (Supp.1981). Ap-pellee made a timely application for renewal of the lease, and appellants secured an appraiser for the land, pursuant to Mississippi Code Annotated § 29-3-65 (Supp. 1981).

The appraiser, Frank A. Fortenberry, used the market value and income approaches in his appraisal and concluded that the fair market value of the land was two hundred twenty-five dollars ($225.00) per acre. He reported to the Board his recommendation that the land be rented for five percent (5%) of said sum, which amounted to a rental of eleven dollars twenty-five cents ($11.25) per acre per year. Appellee contends that the appraisal was made on the wrong basis and instituted this suit seeking a new appraisal based on the fair market rental value of the land instead of the fair market sale value. In order to protect his lease, appellee paid under protest the rental amount fixed by the Board.

Two statutes dealing with the appraisal of sixteenth section leases must be considered and construed in deciding the question here. The pertinent parts of each follow:

§ 29-3-65. Appraisal of lands — adjustment of rental amounts.
One year (1) prior to the date, when any such lands, not subject to competitive bid procedures, shall become available for lease, the board of education shall appoint a competent appraiser to appraise the land and report to the board his recommendation for the fair market rental amount. The board shall then determine whether the same be a reasonable amount, and shall grant the lease pursuant to section 29-3-63. Provided that in the event any such land becomes available for lease prior to July 1, 1979, an appraisal shall be required prior to the granting of said lease....
§ 29-3-63. Release or extension of existing lease — minimum annual rental.
(1) The holder of a lease of sixteenth section or lieu land, at the expiration thereof, shall have a prior right, exclusive of all other persons, to re-lease or to extend an existing lease as may be agreed upon between the holder of the lease and board of education subject to the classification of said land. Provided, however, no holder of a lease of sixteenth section land classified as agricultural land shall have any priority rights in extending his lease contract, except as otherwise provided in section 29-3-81. Provided, however, the compensation on an annual basis shall be the fair market rental of the land excluding buildings and improvements made on such land by the lessee, the title to which is not held in trust for the public schools, but in no event shall the compensation be less than the minimum amounts prescribed in subsection (2).
(2) The board of education shall not lease or extend a lease on any such land at an annual rental less than the percentage of appraised rental value, exclusive of buildings or improvements not owned by the school district, hereinafter established for the category in which said land is classified. For land classified as industrial or commercial land, the minimum acceptable percentage shall be no less than five percent (5%). (Emphasis added)

The language of the first statute is plain and simple. It provides that a competent appraiser appraise the land and report to the Board his recommendation for the fair market rental value. The statute does not set out the method of appraisal to be used. After receiving the appraisal and recommendation of the appraiser, the school board then is required to determine whether the fair market rental amount recommended is reasonable and then shall grant the lease, pursuant to the second section, on a reasonable rental basis.

The second statute is less clear and is confusing in some respects. However, it provides that the compensation (rental) on an annual basis for sixteenth section lands shall be the fair market rental value of the land, excluding buildings and improvements, but the rental shall not be less than the minimum amounts prescribed in Subsection (2) of the statute.

Subsection (2) provides that land classified as industrial or commercial land shall not be leased for less than five percent (5%) of the appraised rental value, exclusive of buildings and improvements. Farm-Residential land is not included in that category-

We note that neither of the two statutes contain, or refer to, the phrase “fair market (sale) value” of the land. Apparently, the school board uses the method of determining fair rental value on the basis of two opinions of the Attorney General of Mississippi. In an October, 1978, opinion, the Attorney General advised that the 5%-mini-mum figure as contained in the second statute was applicable to Farm-Residential properties and said:

It is the opinion of this office that the wording of subsection (1) of Section 29-3-63, when read with subsection (2), would require that residential and farm residential land be leased at no less than five percent of the fair market value.

In a July 1979, opinion, the Attorney General further stated:

It is the opinion of this office that these two sections, when read together, mean that the appraiser would make his recommendation to the board of the fair market rental amount of any land coming up for re-leasing. The board then determines if it is a reasonable amount, taking into consideration the fair market rental amount as compared to the fair market value of the land. This comparison should in no way result in an amount less than 5% of the fair market value. If the fair market rental amount recommended by the appraiser is less than 5% of the fair market value, then at least 5% must be charged in order to comply with Section 29-3-63. If the appraiser’s amount is more than 5% of the fair market value, then the board must make a decision as to whether it should charge the appraiser’s fair market rental amount or an amount higher or an amount lower down to the limit of 5% of the fair market value.
This interpretation should in no way lead to the conclusion that the amount of the lease should be 5% of the fair market rental value regardless of other provisions. The Board is under an obligation to obtain the highest return possible from Sixteenth Section land as a trustee for the school children for that district. It would therefore be inconceivable that the legislature intended the Board to agree to leases calling for 5% of the rental value of the land.

The Board takes the position that, if the rental fixed by the Board is five percent of the fair market rental value, the amount of rental received would be so small that it would be unreasonable to use such figure. The appellee contends that assessment of five percent of the fair market sale value of the land would result in an exorbitant and unjust rental he would be required to pay.

We are of the opinion that the Board has the final authority, duty and responsibility to determine the reasonable annual rental amount to be assessed on sixteenth section lands, and it is not bound by a percentage of fair market sale value or fair market rental value of the land. The Board is simply required to lease the sixteenth section land for the fair rental value thereof. Such is required in order for the Board to absolve itself of liability for inadequate rentals. Holmes v. Jones, 318 So.2d 865 (Miss.1975); Keys v. Carter, 318 So.2d 862 (Miss.1975).

It is very probable that there is no uniformity of appraisals or methods in arriving at fair market value and fair market rental value of sixteenth section lands in this state. We suspect the different counties use different approaches for determining the fair rental value.

We think that the reasoning of the lower court was sound in many respects, but we are of the opinion that the court erred in ordering the school board to appoint an appraiser to appraise all sixteenth section land in Marion County classified as “Farm-Residential” based upon fair market rental value. [See Appendix] The Board is not required to appraise sixteenth section lands until the time stated in the statutes. There is no need to re-appraise sixteenth section land which has already been leased and which has a period of years remaining in the lease term. If such were required, there would be needless expense incurred by the Board, and it is conceivable that when sixteenth section land became available for extension of the lease after one or more years, the fair rental value may have fluctuated either upward or downward, which would require another appraisal. It is also conceivable that the appraisal of the sixteenth section land involved here is a fair appraisal but that the wrong approach is determining fair market rental value was used.

Therefore, the judgment of the lower court is affirmed in part and reversed in part and rendered.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

APPENDIX

6

That Section 29-3-65 of the Mississippi Code of 1982 requires Defendants to appoint a competent appraiser to appraise the land and report to the Board his recommendation for a fair market rental amount. It is undisputed that the prior appraisal is based upon fair market “sale” value rather than fair market rental value and the prayer seeking reappraisal should be and is hereby granted.

It is therefore ordered and adjudged that Defendants herein shall appoint a competent appraiser to appraise all 16th Section land in Marion County, Mississippi classified as “farm residential” based upon fair market rental value, that the Board then determines whether the figures given in the new appraisal are a reasonable amount, and after this determination is made, they shall offer Plaintiff and other prior leaseholders a first option to renew for this amount. It is further ordered that in the event the land cannot be leased as farm residential for this amount, subsequent efforts must be made to determine fair market rental value with prior leaseholders being given first option to renew at each figure determined. It is further ordered that a certified copy of this judgment be delivered to each Defendant.

SO ORDERED AND ADJUDGED on this 5 day of March, A.D., 1982.

      . The reference is to farm-residential land, which we are considering in this case.


text:
    Robert CUNNINGHAM, Jr. v. Jo Ann CUNNINGHAM.
    No. 53541.
    Supreme Court of Mississippi.
    Dec. 15, 1982.

      Vance & Perrier, Travis T. Vance, Jr., Eugene A. Perrier, Vicksburg, for appellant.
    Loyacono & Price, Paul Kelly Loyacono, Vicksburg, for appellee.
    Before SUGG, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Robert Cunningham, Jr. attempted an appeal to the Circuit Court of Warren County from a forty-five hundred dollar ($4,500) judgment against him in the County Court. The Circuit Judge, Honorable John W. Prewitt, Sr., sustained a motion by Jo Ann Cunningham, in whose favor the judgment was rendered, to dismiss the appeal, and Robert Cunningham, Jr. has appealed from that order to this Court.

The first question presented is whether or not the appellant perfected his appeal to the circuit court within the ten-day requirement stated in Mississippi Code Annotated § 11-51-79 (1972).

An attorney representing appellant testified that he prepared a supersedeas bond and wrote a check for court costs and that another attorney in his office was given those instruments for delivery to the circuit clerk. The latter attorney testified that he took the instruments to the Circuit Clerk’s office, asked the Chief Deputy Clerk to approve and file the bond; that she declined to mark the bond “Filed and Approved” because the Circuit Clerk always handled that type matter; and that he left the instruments with the Chief Deputy Clerk on her desk.

A third attorney, who formerly was associated in the office of appellant’s attorney, testified that he was with the second attorney when that attorney carried the bond and check into the Circuit Clerk’s office; that after the time limit had expired for perfecting the appeal, he (the third attorney) learned that the bond and check were missing, and went to the Circuit Clerk’s office, made an individual search through the bond files of the Circuit Clerk, and found the instruments. He further testified that he did not remove the instruments from the file, nor did he bring the discovery to the attention of deputy clerks who were in the Circuit Clerk’s office, but went to the county judge and informed him that he had found the appeal instruments.

Ms. Alyce Crist, Chief Deputy Circuit Clerk, testified that she had never seen the bond and appeal instruments, that she had gone through the bond files looking for them, and that she was unable to find them.

The circuit judge did not render an opinion in the case, but entered the following order:

CAME the parties on the days and times set for hearing on the Appellee’s Motion to Dismiss the appeal of Appellant and the Court having heard the evidence presented by the parties together with the arguments of counsel is of the opinion that the Motion to Dismiss the appeal of the Appellant is well taken and should be granted.
IT IS THEREFORE ORDERED AND ADJUDGED that the appeal is and hereby dismissed and that the judgment of the County Court of Warren County, Mississippi is sustained as of the day of its rendition.
SO ORDERED this the 12th day of October, 1981.

It is obvious that the circuit judge sustained the motion and dismissed the appeal on the evidence hereinabove summarized. We are unable to say that the circuit judge was in error on such finding, and we affirm the order of dismissal. It is not necessary for us to address the question as to whether or not the appeal would have been timely perfected, if those facts had been resolved in favor of the appellant.

The second question presented is whether or not the appellee is entitled to statutory damages on appeal to the circuit court in the sum of fifteen percent (15%) of the judgment and the same statutory penalty on appeal to this Court.

Mississippi Code Annotated § 11-3-23 (Supp.1981) provides in part:

In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the supreme court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%), ....

Since the circuit judge dismissed the appeal to the circuit court on the ground that it was never perfected, the judgment of the county court has not been appealed from, or affirmed, and the statutory penalties may not be assessed here. The statute applies where a judgment has been appealed and affirmed or where the appeal was perfected but abandoned before the case was decided by an appellate court.

Therefore, the statutory penalties are denied in the circuit court and this Court.

AFFIRMED.

PATTERSON, C.J., SUGG and WALKER, P.JJ., and BROOM, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: ALMON, Justice.

text:
    Dock REED and Highland Racquet Club, Inc. v. Wade HERREN.
    80-337.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Nov. 19, 1982.
    William M. Acker, Jr. and Susan D. Doughton of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellants.
    Joseph B. Mays, Jr. and Jere F. White, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellee.
   ALMON, Justice.

This is a contract case which involves a covenant not to compete and a cross claim alleging breach of warranty.

On July 1, 1974, Wade Herren entered into an agreement with the City of Birmingham whereby Herren was awarded the exclusive license to operate a tennis facility known as the Highland Racquet Club. The agreement was to terminate on June 30, 1979. It was amended May 28, 1976, but the termination date was not changed. In 1977, Dock Reed approached Herren about the possibility of Reed’s taking over the tennis shop at Highland. Herren and Reed reached an agreement (hereafter Her-ren/Reed agreement) which was formalized on July 1, 1977. Under this agreement, Herren sold to Reed and his corporation, Highland Racquet Club, Incorporated (hereafter HRC), the exclusive right to occupy and operate the tennis shop at Highland and also certain arsets located at the tennis shop. The total sales price was $36,773.07, which included $25,000 for assets such as counters (show cases), mannequins, racquet repair and stringing equipment and other tennis shop supplies. Herren warranted that he had good and marketable title to the business and assets sold, but included a provision in the agreement that should the City claim any of the wooden show cases sold to Reed, then Herren would pay to Reed the depreciated value of such cases.

It was expressly provided in the agreement that neither Reed nor HRC would “obtain or attempt to obtain any agreement from the City covering any of the rights, privileges and licenses granted to Herren” by the City, “it being understood that as between the parties hereto, Herren shall have the first right to obtain such rights, licenses and privileges from the City.” This provision was to remain in effect until June 30, 1987, or thereafter until the expiration of any license agreement Herren had with the City.

Herren was to receive three-fourths of the rental fees received from the rental of courts, lockers, etc., while Reed was to receive the remaining one-fourth.

In November 1978, Reed wrote to Herren and suggested that they become partners and split the fees earned at Highland. Her-ren responded by letter to Reed that he realized that things had not worked out “profit-wise” as perhaps Reed had expected, but he did not need or want a partner. Reed wrote Herren again on December 27, 1978, and stated that he had to have a better financial arrangement to continue the agreement. Reed again suggested splitting the fees with Herren, and offered to shoulder all of the responsibility for running the facility. If that was not agreeable then he felt Herren should repurchase the inventory, fixtures and goodwill.

Reed wrote a third letter to Herren on April 23, 1979. The letter stated that Her-ren’s failure to perform his responsibilities under the contract made it impossible to continue with the agreement, and therefore he considered the agreement breached. Herren wrote back to Reed on May 25, 1979, saying their contract was still valid and not due to expire for several years. Herren also included two proposals to Reed that were essentially the same as the ones Reed had mentioned in his December 27, 1978, letter.

On June 4, 1979, Herren wrote Reed withdrawing the proposals. The next day he wrote Reed stating Reed had breached their agreement by dealing with the City and competing for the license to run Highland. On May 31, 1979, both Herren and Reed appeared at a public meeting held by the Birmingham Park and Recreation Board regarding the award of the Highland license. Both Reed and Herren submitted proposals to the Board. These were the only proposals submitted. The Board awarded the new license to Reed and HRC.

Herren initiated the present suit claiming breach of contract and sought damages and injunctive relief. Reed moved for a summary judgment, alleging that the agreement was void under Code 1975, § 8-1 — 1. The trial court denied the motion. HRC also asserted a counterclaim based on Her-ren’s breach of warranty in the sale of certain tennis shop assets. The trial court, sitting without a jury, and after hearing evidence, entered a judgment finding Reed and HRC had breached the agreement by seeking and obtaining the license from the City; that Herren was not guilty of any prior breach of the agreement; that the noncompetition provisions did not violate § 8-1-1; that HRC’s counterclaim was due to be denied; that injunctive relief was due to be denied; and that Herren was due damages in the amount of $24,514 due to loss of profits resulting from the breach of the agreement.

Before we get to the primary errors asserted we must dispose of a motion to dismiss the appeal as untimely filed.

The final judgment was entered by the trial court on November 16, 1980. Rule 59(b) of the Alabama Rules of Civil Procedure required that a motion for a new trial be served not later than 30 days after the entry of a judgment. The thirtieth day or last day to file a motion for a new trial fell on December 26, 1980, which was the day after Christmas. By order of the Governor, state offices and agencies were closed on December 26, 1980. The motion for a new trial was not filed until the following Monday. The trial court denied Herren’s motion to strike the motion for a new trial as untimely. Herren asserts that if the trial court was wrong in its ruling and the motion for a new trial was in fact untimely, then Reed’s notice of appeal was also untimely and the appeal is due to be dismissed.

The gist of Herren’s motion is that December 26, 1980, even though the circuit clerk’s office was closed, was not a holiday within the meaning of Rule 6 of the Alabama Rules of Civil Procedure, and, hence, should be included in computing the time within which a motion for a new trial could be filed and served.

Rule 6 provides that in computing any time period under the rules of civil procedure, the last day of the period shall be included in the period unless the last day is “a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday.” Listed as “legal holidays” by Rule 6 are New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans Day, Thanksgiving Day, Christmas Day, and “any other day appointed as a holiday by the President or the Congress of the United States, or as prescribed in § 1-3-8, Code of Alabama, as amended.” Code 1975, § 1-3-8, also enumerates days to be observed as holidays and also provides for some holidays to be designated by the governor.

Herren asserts that because December 26, 1980, was not declared a holiday by the President or Congress of the United States, it was not a holiday for purposes of Rule 6. We disagree.

The Committee Comments to Rule 6 state that the net effect of the rule is to include any holidays, whether state or federal, within the definition of “legal holiday.” The Comments specifically state that § 1— 3-8 “provides for holidays by gubernatorial declaration.” While the Committee Comments do not carry the force of the rules themselves, they do provide insight and in this instance encompass the spirit of the rule. To say that holidays declared by the Governor are not to be considered “legal holidays” within Rule 6 would be very unfair. The motion to dismiss the appeal is denied.

The first error asserted is that the trial court misapplied Code 1975, § 8-1-1. This section provides that:

“(a) Every contract by which anyone is restrained from exercising a lawful profession, trade or business of any kind otherwise than is provided by this section is to that extent void.
“(b) One who sells the good will of a business may agree with the buyer and one who is employed as an agent, servant or employee may agree with his employer to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a specified county, city or part thereof so long as the buyer, or any person deriving title to the good will from him, or employer carries on a like business therein. “(c) Upon or in anticipation of a dissolution of the partnership, partners may agree that none of them will carry on a similar business within the same county, city or town, or within a specified part thereof, where the partnership business has been transacted.”

It is insisted by Reed that the restraint in question is not embraced by any exception to § 8-1-1. In essence, he argues that it is a contract in general restraint of trade and is therefore void as contrary to the policy of the law. This issue was addressed many years ago in the case of Terre Haute Brewing Co. v. McGeever, 198 Ala. 474, 73 So. 889 (1916) to the effect that:

“... Contracts in general restraint of trade violate the policy of the law, and are therefore void. Every contract, however, which at all restrains or restricts trade, is not void; it must injuriously affect the public weal; that it may affect a few or several individuals engaged in a like business does not render it void. Every contract of purchase and sale to some extent injures other parties; that is, it necessarily prevents others from making the sale or sales consummated by such contract. This is clearly true of every contract to purchase in the future, or to sell goods to be made in the future, or to purchase the entire output of a mine or all the grain or cotton produced by one or several parties during a season or seasons; but no one ever contended that such were void, unless affecting persons or territory sufficient to constitute it a monopoly, pool, or trust of the article in question.
“Contracts in partial restraint of trade are always upheld, when properly restricted as to territory, time, and persons, where they are supported by sufficient consideration. — Moore & Handley Co. v. Towers Co., 87 Ala. 206, 6 South. 41, 13 Am.St.Rep. 23, and note; Tuscaloosa Co. v. Williams, 127 Ala. 110, 28 South. 669, 50 L.R.A. 175, 85 Am.St.Rep. 125, and note; Linn v. Sigsbee, 67 Ill. 75; Hursen v. Gavin, 162 Ill. 377, 44 N.E. 735.”

This Court has continued to adhere to the Terre Haute rationale. Alabama-Tennessee Nat. Gas Co. v. City of Huntsville, 275 Ala. 184, 153 So.2d 619 (1963); Hibbett Sporting Goods, Inc. v. Biernbaum, 391 So.2d 1027 (Ala.1980).

We consider the sale of part of Herren’s business, including good will, to Reed to be a contract within the perimeter of § 8-1-1. Because we deem the restraint in question to be one in partial restraint of trade, our inquiry is whether it is reasonably limited as to time, territory, persons, and whether it is supported by sufficient consideration.

Having examined the entire agreement and particularly the non-competition provision, we conclude that the agreement is supported by sufficient consideration and is properly restricted as to territory, and persons. The other requirement, that it be properly restricted as to time, is not so easily decided.

In examining these restrictions, our only guideline is one of reasonableness. There are several factors that should be considered, which include “the motive of the parties, the extent and effect of the contract, the circumstances under which it is made, and its effect upon the public interest.” Denton v. Alabama Cotton Co-op Association, 30 Ala.App. 429, 7 So.2d 504 (1942). The effect upon the public is of primary importance. The Highland facility is owned by the City of Birmingham and open to the public. The City was to provide maintenance for the facility and was entitled to a percentage of the revenues. Contracts restraining business with governmental agencies should be viewed with a scruti-nous eye.

Although not controlling, as it turned out only Reed and Herren applied for the new license. Had Reed complied with the restriction, Herren would have been the only applicant for the license. Not only was Reed prohibited from competing for the license in 1979, but was prohibited from applying for the license until 1987, or if there was a license in effect in 1987, then until that license expired. At the very least the restriction covered a period of 10 years. The reasonableness of such restrictions must necessarily depend upon the facts of each case. Our research reveals that the longest period of time which has been approved by the courts of this state is five years. Mason Corporation v. Kennedy, 286 Ala. 639, 244 So.2d 585 (1977). Considering the circumstances of this case we are of the opinion that the ten-year-plus restriction on competition, particularly where a governmental agency is involved, is inordinate and therefore unreasonable, thus rendering the non-competition provision of the contract void and unenforceable. It follows, therefore, that Herren is not entitled to damages for the breach of the void contractual provision.

The remaining issue has to do with HRC’s counterclaim against Herren for breach of warranty in the sale of certain assets located in the tennis shop.

Herren warranted title to the counters to HRC with a provision that should the City claim the counters under its contract with Herren, then Herren would refund the depreciated value to HRC. While this arrangement is somewhat unorthodox, we cannot conclude from the record that the trial court has abused its discretion. Our view of this issue is strengthened by our holding on the non-competition agreement and the fact that Reed and HRC will have the use of the counters for some time to come.

The judgment is therefore affirmed in part and reversed in part.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

TORBERT, C.J., and FAULKNER, EM-BRY and ADAMS, JJ., concur.

      . After the appeal in this case was taken, Rule 59(b) was amended to read: “A motion for a new trial shall be filed not later than 30 days after the entry of the judgment.” (Emphasis added.)

      . See City of Talladega v. McRae, 375 So.2d 429 (Ala. 1979).


author: PER CURIAM.

text:
    John W. CHISM and Lillian Frances Chism v. Leon HICKS, Lunis Hicks and Ida Hicks.
    80-929.
    Supreme Court of Alabama.
    Sept. 24, 1982.
    Rehearing Denied Nov. 19, 1982.
    Carol J. Millican, Birmingham, for appellants.
    William P. Boggs, Clanton and Michael Murphy, Centreville, for appellees.
   PER CURIAM.

This case involves a boundary line dispute between two coterminous landowners. We affirm.

In 1949, Mr. Palmer Hicks built a fence between his land and the land owned by John and Frances Chism. The evidence is unclear as to whether the fence was intended by the parties be a “boundary line” fence. The boundary line between the two properties, as described in their respective deeds, is the “quarter-section” line.

Mr. Chism testified that since he had purchased the property in 1948, he had claimed all the land up to the fence built in 1949, and had therefore, by prescription, gained ownership of the property.

The majority of the evidence was in conflict. The plaintiffs (the Chisms) claimed the fence was built to mark the boundary between the two properties, while the defendants claim the fence was built merely to enclose a pasture.

After hearing the case without a jury, the trial judge made, in part, the following findings of fact:

“1. The Plaintiffs, John W. Chism and Lillian Frances Chism, are the record owners of the following described real estate situated in Bibb County, Alabama.
SW Vi of SW Vi, Section 31, Township 22 North Range 11-East, and E Vi of SE Vi of SE Vi of Section 36, Township 22, Range 10 E, Bibb County, Alabama. “2. The Defendants, Leon Hicks, Lun-
is Hicks, and Ida Hicks, are the record owners of the following described real estate situated in Bibb County, Alabama.
NW Vi of the SW Vi, Section 31, Township 22, Range 11, East; and NE Vi of SE Vi; Section 36, Township 22; Range 10 East, Bibb County, Alabama.
“3. The Plaintiffs contended that they owned up to a fence constructed in 1949 by Palmer Hicks the deceased husband of Ida Hicks. The Plaintiffs claimed that the fence was recognized by the Plaintiffs and Defendants as being the boundary line which divided the property of the Plaintiffs and Defendants.
“4. The testimony that came before the court was that the fence was built in 1949 by Mr. Palmer Hicks (deceased) for the purpose of enclosing a pasture. It was not placed on the true boundary line due to the rugged nature of the terrain along the quarter section line. That the area in contention is wild land and that Plaintiffs failed to show sufficiency of possession to establish the prescription.
“5. The Court found no testimony as to any agreement between the parties that the fence would be the boundary line between the Plaintiffs and Defendants.
“6. The Court finds that the quarter section line as established by Bill Ogle-tree registered surveyor in November 1979, is the true boundary line between the Plaintiffs and Defendants.”

The essence of the plaintiffs’ (appellants) argument in this appeal is that the ore tenus scope of review does not apply. As the appellants admit, the purpose behind this argument is to remove the very strong presumption of correctness in favor of the trial judge which exists under that standard of review. The appellants assert that the trial judge either (1) failed to exercise judicial discretion, (2) misapplied the law to the facts, or (3) made findings unsupported by the evidence.

We hold that the ore tenus rule does apply in this case and that none of the above assertions requires a reversal. Under that rule, a presumption of correctness attends a trial judge’s conclusions on issues of fact. This Court will not disturb those conclusions unless plainly erroneous or manifestly unjust, and will affirm the trial judge’s decision if, under any reasonable aspect, it is supported by any credible evidence. See Dicon, Inc. v. Great Atlantic and Pacific Tea Co., 381 So.2d 18 (1980).

Considering the record in light of this rule of review, we cannot say that the trial judge’s decision was plainly erroneous, manifestly unjust, or unsupported by credible evidence. Therefore, we affirm.

AFFIRMED.

TORBERT, C.J., and FAULKNER, AL-MON, EMBRY and ADAMS, JJ., concur.


author: TORBERT, Chief Justice.

text:
    L.C. WALDROP v. PEABODY GALION CORP., et al.
    81-68.
    Supreme Court of Alabama.
    Nov. 12, 1982.
    Charlie D. Waldrep of Waldrep, Stewart & Kendrick and James H. Starnes of Starnes & Atchison, Birmingham, for appellant.
    Thomas B. Huie of Huie, Fernambucq, Stewart & Smith, Birmingham, for appel-lees Truck Equipment, Inc.
    Brittin T. Coleman and Eldridge D. Lacy of Bradley, Arant, Rose & White, Birmingham, for appellee General Motors Corp.
    Mark W. Lee of McDaniel, Hall, Parsons, Conerly, Scott & Lusk, Birmingham, for appellee Pierson Chevrolet, Inc.
   TORBERT, Chief Justice.

On April 20, 1979, suit was brought against Peabody Galion Corporation, Truck Equipment, Inc., General Motors Corporation, and Pierson Chevrolet, Inc. by Wal-drop for breach of express and implied warranties in the manufacture and sale of a garbage truck. The trial court granted a summary judgment in favor of all defendants on the ground that the claim was barred by the statute of limitations. We affirm.

In the summer of 1974, the City of Gadsden, Alabama, issued specifications and invited bids for the purchase of six garbage trucks and issued separate specifications for six garbage compactors. The City requested that the six trucks be delivered to Peabody Galion Corporation in Durant, Oklahoma, for installation of the compactors. The City purchased the garbage compactors from Truck Equipment, Inc., the manufacturer, who delivered them to Peabody Gal-ion. The City purchased the trucks from Pierson Chevrolet, which had purchased them from General Motors Corporation, the manufacturer, and delivered them to Peabody Galion.

The purchase order for the garbage compactors was issued on July 2, 1974; the purchase order for the six trucks was issued on August 12, 1974; and Pierson Chevrolet purchased the trucks from General Motors on or about December 14, 1974.

The City issued a check on February 19, 1975, to Pierson Chevrolet, and on March 27, 1975, the City issued a check to Truck Equipment for the garbage compactors. Martha Elrod, City Clerk of the City of Gadsden, as well as E.M. Pledger, Director of Public Works for the City of Gadsden, testified in deposition that the City never paid for equipment before it was received. This is not inconsistent with the issuance of two checks, because the City had specified that Pierson Chevrolet was to deliver the trucks to Peabody Gabon and, therefore, according to Code of Ala. § 7-2-503(1), tender of delivery to the City had occurred on December 10, 1974, when Pierson delivered the trucks to Peabody Gabon. The completed trucks, equipped with compactors, were then, according to Mrs. Elrod and Mr. Pledger, delivered to the City sometime on or before March 27,1975, the date of the second check.

On October 29, 1976, the appellant, Wal-drop, employed by the Gadsden Sanitation Department as a garbage collector, was injured in an accident. While the truck was making a turn, it hit a dirt embankment, resulting in a severe leg injury to Waldrop, who was riding on the back of the truck and whose leg was caught between the truck and the embankment. Plaintiff maintains that his injuries resulted from defects in the garbage truck and the compactor.

Waldrop brought suit against Pierson Chevrolet, Truck Equipment, Inc., Peabody Gabon Corporation and General Motors Corporation. Each of the defendants moved for a summary judgment on the ground that the time allowed under the applicable statute of limitations had expired. General Motors moved for a summary judgment on the additional ground that it did not manufacture, install, sell, or distribute the allegedly defective garbage compactor. The trial court granted a summary judgment, finding that the delivery of the trucks occurred on or before March 27, 1975, and thus, that the time allowed by the statute of limitations had expired.

Section 7-2-725 of the Alabama Code provides that a cause of action for breach of warranty must be brought within four years of “tender of delivery” of the goods. “Tender of delivery requires that the seller put and hold conforming goods at the buyer’s disposition.” Ala.Code § 7-2-503(1) (1975). “The manner, time and place for tender are determined by the agreement.” Id. Unless the agreement provides otherwise, the place for delivery is the seller’s place of business. Ala.Code § 7-2-308(a) (1975). Since this action was filed on April 20,1979, the claim is barred under the statute of limitations if the trucks were delivered to the City of Gadsden prior to April 20, 1975.

In the present case, the terms of the agreement required the supplier of the trucks to deliver the goods to Peabody Gal-ion Corporation in Oklahoma. General Motors and Pierson Chevrolet, the sellers of the trucks, complied with the terms of the agreement by delivery to Peabody Gabon in December, 1974. Therefore, the statute of limitations bars any action against General Motors and Pierson Chevrolet. See, City of New York v. Pullman, Inc., 662 F.2d 910 (2d Cir.1981); Standard Alliance Industries, Inc. v. Black Clawson Co., 587 F.2d 813 (6th Cir.1978); Binkley Co. v. Teledyne Mid-America Corp., 460 F.2d 276 (8th Cir.1972).

By the terms of the City’s agreement with Truck Equipment and Peabody Gabon, those parties were responsible for delivering the truck chassis and garbage compactors to the City shop in Gadsden. The issue concerning the liability of these two parties is when tender of delivery at Gadsden occurred. The trial judge held that delivery occurred on or before March 27, 1975, and, thus, granted summary judgment.

A summary judgment should be granted only if there is no genuine issue as to a material fact. Appellant contends that the evidence does not conclusively establish that the date of delivery of the truck was more than four years prior to the filing of the suit because there is no evidence that anyone had personal knowledge of the actual date of delivery. This contention is based on the deposition of Mr. Pledger, in which he stated that it was customary to put trucks into service within four or five days after they had been delivered, and his records showed the truck was not put into permanent service until April 28,1975. Appellant, therefore, contends that by implication one must find the truck was delivered after April 20,1975. When asked about the discrepancy concerning the delivery date of the trucks, Mr. Pledger explained that the truck was probably received around March 17, 1975, and his records did not show it in service until April 28 because the truck had probably been in and out of service for a few weeks while repairs were done to it.

We disagree with appellant’s contention that there was insufficient evidence of the actual date of delivery, because there is clear evidence as to the last possible date of delivery. The following is an excerpt from the deposition of Mr. Pledger:

“Q. Mr. Pledger, you can state categorically that the truck is received before it’s paid for?
“A. Yes, sir.
“Q. All right, sir. And that date it’s put into service has to be later than the date it was received at your yard or plant—
“A. Yes, sir.”

On the one hand, there is uncontroverted testimony from both Mrs. Elrod and Mr. Pledger that City policy requires receipt of equipment before payment, which would place delivery on or before March 27, 1975. On the other hand, there is a statement that it is customary to put trucks into service within four or five days after .they have been delivered, which would place delivery sometime after April 20,1975. Since the only possible contradictory evidence came from a witness who both testified as to City policy and clearly stated in his deposition that the service records might not be reflective of date of delivery, we cannot hold that the trial court erred in refusing to rely on this quality of conflicting evidence to find a genuine issue as to a material fact.

Therefore, the summary judgment in favor of Truck Equipment Corporation, Peabody Gabon, General Motors, and Pierson Chevrolet is affirmed.

AFFIRMED.

ALMON, SHORES, EMBRY and BEAT-TY, JJ., concur.

FAULKNER and ADAMS, JJ., dissent.

JONES, J., not sitting.


text:
    David A. HUGGINS and Evelyn R. Huggins v. The HANOVER INSURANCE COMPANY.
    81-90.
    Supreme Court of Alabama.
    Nov. 12, 1982.

      M.U. Griffin of Griffin & Griffin, Huntsville, for appellants.
    W. Stanley Rodgers and John O. Cates of Ford, Caldwell, Ford & Payne, Huntsville, for appellee.
   ON APPLICATION FOR REHEARING

PER CURIAM.

The original opinion in this case is withdrawn and the following opinion is substituted in its place.

This is an action to recover damages for a loss covered by homeowner’s insurance. The trial judge granted a motion for a directed verdict in favor of the insurance company after the presentation of the insureds’ evidence. We affirm.

The appellants, David and Evelyn Huggins, owned real estate in Madison County. The appellants built a house on the property, acting as their own contractors. On February 25, 1980, before the house was completed, a fire totally destroyed the building.

Hanover Insurance Company had issued its policy of insurance to the Hugginses, insuring the property against fire loss and other perils. The limit of liability was $120,000.00.

The insurance policy includes the following provisions:

“c. Buildings under Coverage A or B at replacement cost without deduction for depreciation, subject to the following:
“(1) If at the time of loss the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately prior to the loss, we will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts:
“(a) the limit of liability under this policy applying to the building;
(b) the replacement cost of that part of the building damaged for equivalent construction and use on the same premises; or
(c) the amount actually and necessarily spent to repair or replace the damaged building.”

Part c. also provided:

“(4) When the cost to repair or replace the damage is more than $1000 or more than 5% of the amount of insurance in this policy on the building, whichever is less, we will pay no more than the actual cash value of the damage until actual repair or replacement is completed.
“(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis.”

On March 21, 1980, the plaintiffs entered into a contract to purchase a new home for $79,900.00. On May 13, 1980, the plaintiffs met with an adjuster for Hanover for the purpose of settling the fire loss. The plaintiffs were presented with a breakdown of the recovery available under the policy. The full replacement cost of the building was $106,366.21. This figure was derived from an estimate made by a building contractor, Mr. Caneer, after reviewing the blueprints for the house. The applicable depreciation was $21,266.21, and the actual cash value was $85,100.00. The deductible was $100.00, resulting in an actual-cash-value claim of $85,000.00. The breakdown also specified that a supplemental claim could be made for $21,266.21 if the plaintiffs complied with the terms of the “Replacement Cost Coverage.” The breakdown is as follows:

Full replacement cost $106,366.21
Less applicable depreciation 21,266.21
Actual-cash-value loss 85,100.00
Less deductible 100.00
Actual cash value claim 85,000.00
Supplemental claim 21,266.21

At the May 13 meeting, Hanover offered an actual-cash-value settlement of $85,000 and documents were presented to plaintiffs for this purpose. Plaintiffs refused to accept the settlement and took copies of the documents to their attorney. On June 3, 1980, plaintiffs accepted a draft for $85,000 and executed a proof of loss, a statement of the full cost of repair or replacement, and a loan receipt. Plaintiffs did not sign a release and the draft contained no words of release of liability.

On July 28, 1980, the Hugginses brought an action to recover an additional $34,900 under the policy. They claimed the difference between the full limit of liability on the policy ($120,000.00) and the amount paid by Hanover ($85,000.00) less the deductible ($100.00). The action was tried before a jury. The trial judge granted the insurance company’s motion for a directed verdict at the close of the Hugginses’ presentation of evidence.

The issue raised on appeal is whether the trial court erred in granting a directed verdict in favor of the insurer. Plaintiffs contend that the trial court erred, because, they say, there was evidence to support their contention that they were due a greater amount under the insurance policy.

A trial judge may properly grant a directed verdict only if, without weighing the credibility of the evidence, the non-moving party does not present a prima facie case. Feaster v. American Liberty Insurance Co., 410 So.2d 399 (Ala.1982); Casey v. Jones, 410 So.2d 5 (Ala.1981). A directed verdict may not properly be granted if there is any evidence to support a verdict in favor of the non-moving party. Id.

As we read this policy under part c., the plaintiffs would be entitled to the smallest of three amounts. Under c.(l)(a) recovery would be $120,000; under c.(l)(b) recovery would be $106,366.21, if the building were rebuilt on the same premises; under c.(l)(c) recovery would be $79,900.00 if we consider the new home purchased by the plaintiffs to be a replacement for the home destroyed.

Subparagraph c.(4) limits all replacement cost recovery under c.(l) to actual cash value until repair or replacement is complete. Subparagraph c.(5) allows for an actual-cash-value recovery prior to replacement and a supplemental claim when replacement is completed.

Hanover asserts that the $85,000 represents the actual cash value of the destroyed home, that this is the amount due under the provisions of the policy, and that the plaintiffs accepted it. Hanover concedes that had the plaintiffs elected to repair or replace the home, then they would be entitled to an additional sum in the amount of the difference between the actual cash value and the replacement cost under subpara-graph c.(5). The policy provided that the insurer would pay the cost of replacement without deduction for depreciation, but not exceeding the smallest of the policy limits ($120,000.00), the replacement cost for equivalent construction and use on the same premises, or the amount actually and necessarily spent to replace the damaged house. Even if the purchase of the new home by the plaintiffs is considered a “replacement,” its cost was only $79,900, which is less than the amount paid by Hanover.

Provisions like those contained in subparagraph c.(4) have been interpreted as providing a condition precedent to an insurer’s duty to pay repair or replacement costs of an insured building. A party who has not repaired or replaced his insured building has not complied with the condition precedent to recovery under the policy and so cannot recover. See Rolls v. Aetna Casualty & Surety Co., 503 F.2d 569 (8th Cir.1974); Bourazak v. North River Insurance Company, 379 F.2d 530 (7th Cir.1967).

Clearly the house was not “repaired”; our next consideration, then, is whether the new house was a “replacement.” In the absence of a definition within the insurance policy and in the further absence of Alabama case law defining “replacement,” the term must be given its common interpretation. Green v. Merrill, 293 Ala. 628, 308 So.2d 702 (1975).

Replace means “to take the place of esp. as a substitute or successor” or “to put something new in the place of.” Webster’s New Collegiate Dictionary, G. & C. Merriam Co. (1974). (Emphasis added.) Since a new home has not been built on the site of the fire-damaged home, the Hugginses failed to meet the second definition of replace. While the new house did not take the place of the fire-damaged house in the same physical location, it did serve the same function as the previous home and might be considered a substitute therefor. The $79,900.00 paid for the new home, then, is the amount actually and necessarily spent to replace the damaged building as provided in subparagraph c.(l)(c).

Since the Hugginses received actual cash of $85,000.00 and actually spent only $79,900.00 to replace the damaged building, they actually received $5,100.00 more than required under the policy. In any event, we find that Hanover fulfilled its obligations under the policy under subparagraphs c.(l)(b) and c.(4), as well as under c.(l)(c), when it paid the insureds the $85,000.00, which they accepted.

Apparently denying that the new house was a replacement, appellants contend that subparagraph (5) qualifies, limits, and controls (4) by its language. Subpara-graph (5) reads:

“(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis.”

Appellants place emphasis on the meaning of the word “basis” and claim that one “basis” of claiming replacement loss is to procure a competent estimate from a contractor and then use it to claim loss. Appellants argue that if the company intended for “basis” as used in subparagraph (5) to mean “when actual repair or replacement is completed,” then it should have said so in that subparagraph. We dismiss this argument as placing emphasis on one word arbitrarily as opposed to interpreting the provision as a whole. This provision was not intended to allow for recovery of replacement cost without repair or replacement but, rather, was to allow an insured to make a claim for and to collect his actual-cash-value loss immediately and to make an additional claim within 180 days for costs incurred in repairing the building.

Assuming that the new house is not a replacement, if this Court holds that the Hugginses are entitled to replacement cost despite the fact that they did not meet the condition precedent of replacement, the ap-pellee is correct when it says:

“[T]he result . .. would mean that in many cases the actual cash value language in an insurance policy is meaningless. In a total loss, depreciation is deducted from replacement cost to determine actual cash value. Thus, actual cash value will nearly always be less than replacement costs. If the insured can recover either replacement cost or actual cash value without first having to repair or replace the damaged premises, then the actual cash value language in the policy has no scope of operation.”

Thus, if we are to give effect to the “actual cash value” language of the policy, regardless of the replacement issue, we must find that Hanover has met its obligation under the policy by paying the actual cash value to the plaintiffs.

It is unnecessary for us to consider the issue of whether the signing of a proof of loss and cashing of a check for less than the amount claimed by an insured preclude recovery by the insured of the additional amount claimed, since we have held that under the policy Hanover does not owe the Hugginses any additional amount.

Finally, this Court reaffirms the trial court’s power to interpret the meaning of a contract.

“[T]he court, not the jury, will interpret the meaning of a contract, whether oral or written, unless the court determines the contract to be ambiguous and one of the parties makes an offer of proof as to surrounding facts and circumstances which would clarify the contract’s meaning, in which case it is within the province of the jury to ascertain those facts and draw such inferences from them as are necessary to the interpretation of the contract upon proper instructions by the court.”

Alpine Const. Co. v. Water Works Bd., 377 So.2d 954, 956 (Ala.1979).

REHEARING GRANTED; OPINION WITHDRAWN; OPINION SUBSTITUTED.

AFFIRMED.

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

FAULKNER, EMBRY and ADAMS, JJ., dissent.