text:
    GLANTZ CONTRACTING COMPANY and Security Insurance Company v. GENERAL ELECTRIC COMPANY.
    No. 51617.
    Supreme Court of Mississippi.
    Feb. 6, 1980.

      White & Morse, D. Knox White, Gulfport, A. Morgan Brian, Jr., New Orleans, La., for appellants.
    Eaton, Cottrell, Galloway & Lang, Charles R. Galloway, Gulfport, Lucien M. Gex, Jr., Waveland, for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   BROOM, Justice,

for the Court:

Overpayments made by prime contractor General Electric Company (GE), appellee, to sub-contractor Glantz Contracting Company (Glantz), appellant, during the progress of the sub-contract work on a large United States Government project (NASA) are in controversy here. Trial was in the Chancery Court of Hancock County wherein GE, complainant below, sued Glantz and its surety, Security Insurance Company. A $263,904.37 money decree plus six percent pre-judgment interest was awarded GE, and Glantz appeals. We affirm as to liability, but reverse in part as to pre-judgment interest.

Work done by sub-contractor Glantz was at the National Aeronautics and Space Administration (NASA) Mississippi Test Facility (MTF) in connection with the Apollo “moon landing mission.” Speed in completion of the work was demanded by our government in order to “beat the Russians to the moon.” The controversy evolved from the acceleration of the construction work aimed at immediate preparation for operations of the MTF near Bay St. Louis, Mississippi. Careful testing of Saturn rocket engines had to be accomplished at the MTF prior to their being attached to manned spacecraft at Cape Kennedy. NASA suggested to its MTF prime contractor GE that GE sub-contract certain chemical cleaning work of the cryogenic piping system with Glantz because NASA felt that only Glantz had the expertise and capability necessary to accomplish the work within the short time table allowed. NASA seemingly caused GE, without the time consuming public notice and bidding, to contract quickly with Glantz on a “cost plus fixed fee” (CPFF) basis. Intense negotiations between GE and Glantz were compacted within a short time frame, Memorial Day weekend of May, 1965. The contract between Glantz and GE followed an unsuccessful attempt by NASA to contract directly with Glantz — when NASA could not agree with Glantz, Glantz was referred to GE for negotiations of the sub-contract. Glantz contends it was entitled to receive and retain payments made to Glantz by GE in the form of pro-rata home-office general administrative and overhead (GA&O) expenses regardless of whether such expenses were allocable to the NASA sub-contract work at MTF.

The instant suit was filed by GE against Glantz in order to recoup its over-payment mistakenly made to Glantz for which NASA would not reimburse GE, the net sum of $263,904.37. Glantz agrees it owes GE $52,-895.20 and (along with Security) says the decree appealed from, to that extent, should be affirmed. Other facts will be stated as appropriate herein.

First issue is whether the chancellor correctly held that the General Electric-Glantz sub-contract required allocable costs to be determined as provided by NASA Procurement Regulations.

NASA would not contract directly with Glantz because Glantz insisted that NASA approve Glantz’s “pool” concept of having NASA pay certain indirect overhead costs not related or allocable to the NASA project. NASA refused to approve the “pool” concept. As stated in its brief, Glantz insisted it simply would not undertake the job or enter into any contract unless it was paid an aggregate of (a) the fixed fee, (b) all site-related, i. e., “alloca-ble,” costs (direct and indirect), and (c) the pro-rata of all pertinent home-office GA&O pools, even if that included some of the very same types of indirect costs which are charged and reimbursed as “direct site” costs under item (b). Glantz takes the position that it and NASA orally agreed upon CPFF terms which would charge the full amount of all site-related (“allocable”) costs, both direct and indirect, as “direct” and reimbursable, and also pay a pro-rata part of all home-office GA&O expenses, whether allocable or not. The non-alloeable costs are the crux of the controversy. Glantz says that NASA specifically “understood and acquiesced in this,” and on this basis Glantz argues it is entitled to payment for GA&O incurred at its home office in New York, and accounted for in its home office’s GA&O.

GE argues that, based upon the black-letter language of the written contract between GE and Glantz, allocability to MTF project was not written out of their contract. Accordingly, GE contends that Glantz’s GA&O costs not related to MTF are not chargeable to GE and therefore such charges mistakenly paid by GE to Glantz were properly included in the money decree in favor of GE.

GE’s sub-contract with Glantz provides that only indirect costs “allocable” to the MTF work are to be paid Glantz by GE. Art. V of the sub-contract binds GE to pay the cost, as determined to be allowable pursuant to Part 15, Sub-parts 2 and 4 of the NASA Procurement Regulations. Article XIV, par. 1(d) provides that indirect costs to be paid shall include all items of indirect allowable cost found in Part 15 of the NASA Procurement Regulations. In the General Terms and Conditions, clause 27, par. (c) is the provision that allowability of costs and acceptability of cost allocation methods shall be determined in accordance with Part 15, Sub-parts 2 and 4 of the NASA Procurement Regulations. NASA Procurement Regulations, Part 15 (NASPR-15) provides in Sub-part 2, section 15.201-2 that factors to be considered in determining the allowability of individual items of cost include allocability. Section 15.201-4 reads:

15.201-4. Definition of Allocability. A cost is allocable if it is assignable or chargeable to a particular cost objective, such as a contract, product, product line, process, or class of customer or activity, in accordance with the relative benefits received or other equitable relationship. Subject to the foregoing, a cost is alloca-ble to a Government contract if it:
(i) is incurred specifically for the contract;
(ii) benefits both the contract and other work, or both Government work and other work, and can be distributed to them in reasonable proportion to the benefits received; or
(iii) is necessary to the overall operation of the business, although a direct relationship to any particular cost objective cannot be shown.

NASPR-15 provides in section 15.202 that:

When items ordinarily chargeable as indirect costs are charged to Government work as direct costs, the cost of like items applicable to other work of the contractor must be eliminated from indirect cost allocated to Government work.

While the work was being done, GE paid Glantz as Glantz requisitioned GE including the MTF’s pro-rata of all home-office GA&O pools, regardless of any MTF alloca-bility. GE neither held back nor retained any sum from those payments. GE paid Glantz for everything Glantz billed as the work progressed without GE disapproving any of the non-MTF allocable GA&O costs included in bills submitted by Glantz. When Glantz completed its work as contracted, GE had paid Glantz all costs billed, and all of the fixed fee except a relatively small (about $24,000) retainage withheld by GE.

Subsequently, NASA audited the costs which GE had paid to Glantz under the CPFF sub-contract. Purpose of the audit was to determine what cost reimbursements NASA should make to GE under their CPFF prime contract. Pursuant to its audit, NASA disallowed the non-site-allocable GA&O costs which GE had been paying all along to Glantz as items “non allocable” under NASPR-15, supra. In accomplishing the disallowance as to GE, NASA withheld from GE whatever amounts NASA otherwise owed GE on subsequent payments, thereby paying GE less until ■ such disallowed costs under the prime contract were completely recouped by NASA from GE. As a result GE was unable to make the same kind of set-offs under its sub-contract with Glantz because GE already had paid Glantz all but $24,000 of the total sub-contract funds.

Vital to the issue is whether or not language included in the sub-contract between GE and Glantz negated the “allocability” sections of NASPR-15 relating to general administrative and overhead (GA&O) expenses. Glantz’s contention is that the language which was inserted by Marvin L. Schechter, attorney for Glantz, in sub-part (d) of Section XIV of the sub-contract between GE and Glantz effectively limited the language of NASPR-15.

As a “hard money” or “lump sum” contractor, Glantz characteristically included a certain percentage of its estimated cost to cover its home office GA&O expenses not allocable to any particular job. In the subcontract with GE, the original language without a doubt included the language of NASPR-15. The position of the witnesses for Glantz was that they expressed to GE (and NASA at the prior meetings) that they could not accept this sub-contract unless they were assured that this job would carry a proportionate share of the unallocable home office expense. Schechter stated that he inserted the language of Section XIV, sub-section (d) specifically to eliminate the allocability language of NASPR-15, but left the other references in the contract to NASPR-15 to relate to the “allowability per se” aspects. He further stated that he felt that his position was made clear to GE. GE paid all the costs billed to them by Glantz in full in the amount of approximately $2,765,-480 plus all of the fixed fee of $111,940 except for $24,000 of the fixed fee which was withheld.

The significance and the ramifications of NASPR-15 are clearly established. Witnesses for Glantz, including its attorney, Schechter, testified that his sole purpose for inserting sub-section (d) of Section XIV was to limit the impact of NASPR-15 and especially those points relating to allocability. We note that in its brief, Glantz relates much more argument to the negotiations between Glantz and NASA than to negotiations between GE and Glantz. Glantz argues that inasmuch as the language of the sub-contract between GE and Glantz was virtually identical to the unexecuted contract proposal between NASA and Glantz, NASA did not intend for GE to renegotiate the contract, but rather to simply implement the already negotiated contract between NASA and Glantz. This argument is without persuasion because the language inserted by Schechter simply does not do what he claims it does. As Schechter himself stated, the reason he put sub-section (d) of Section XIV was to eliminate the alloca-bility requirements of NASPR-15 and that both NASA and GE understood this. Nevertheless, he inserted no specific words of limitation in the sub-contract to accomplish his stated purpose. It is obvious Schechter knew the effect of NASPR-15 and if it was plain to NASA and GE that he wanted the allocability requirements out, he could have simply supplied language that would unambiguously and unequivocally have removed the allocability language. If NASA and GE understood his position and agreed to it, then surely they would not have objected to such plain, definitive wording.

The record does not reflect negotiations between GE (or NASA) and some uninformed, inferior, or easily swayed person. Mr. Schechter was an attorney and by his own admission was not dealing with the technical side of the contract, only the legal aspect of it. Even though the contract dealt with a subject that would seem somewhat exotic to the average person, the legal aspect remained the same. Glantz emphasizes the “time pressure” atmosphere in which negotiations took place, but the facts show time pressure focused upon NASA and GE, not Glantz. Glantz could have simply left at any point in the negotiations and not signed any contract, as Schechter threatened to do.

Another weak aspect of Glantz’s argument is the fact that left in Section XIV (a) was the requirement that Glantz develop a “cost accounting” system. As Glantz pointed out, they already had an accounting system, though not a cost accounting system, therefore there would have been no need to develop a cost accounting system if alloca-bility was not still a criteria of allowability.

For us to construe the Glantz-GE subcontract so as to read out of it the allocability requirements would be more than a strained interpretation. As we said in Citizens National Bank of Meridian v. Glascock, Inc., 243 So.2d 67 (Miss.1971):

Courts do not have the power to make contracts where none exist, nor to modify, add to, or subtract from the terms of one in existence.
(243 So.2d at 70).

The contract before us was'amended and then approved by an experienced attorney (not experienced in CPFF contracts, but in general contract law at the very least) and this Court would not be justified in adding words to the contract. Every reference to NASPR-15 in the contract, even the ones inserted by Schechter, refer to the regulation in general. There are no specific words of limitation in any provision, and thus we cannot rule that all sections of NASPR-15 are not applicable to this contract. In our opinion, the language inserted by Schechter did not remove the allocability requirements of allowability, whether he wished it to or not. It cannot be said the chancellor was. manifestly in error in so holding, and therefore the first issue is resolved in favor of GE.

The second proposition argued by Glantz is that the chancellor erred in not holding that GE’s only contractual remedy for recouping subsequently disallowed payments was by set-off against any further payments due thereafter, not by an affirmative action for money recovery and that such set-off remedy has been waived by GE.

Glantz bases its contention on Article V, sub-section (b) of the contract between GE and Glantz, which states:

At any time . . . prior to final payment . . ., the Government may have the invoices ... of cost audited. Each payment theretofore made shall be subject to reduction for amounts included in the related invoice . which are found by the Government, on the basis of such audit, not to constitute allowable cost. Any payment may be reduced for overpayments . on preceding invoices . . . .” (Emphases added).

According to Glantz, GE’s remedies (as to Glantz) are exclusively limited to set-offs against future payments due Glantz under the contract with GE. Glantz asserts that Article V(b) being the only section dealing with recoupment of overpayment, no other remedies can be implied from the contract, and that since GE has made all payments required under the contract, GE has waived this remedy.

Cases cited by appellant on this point are distinguishable from the instant case, and are not controlling. The general rule is stated in 17 Am.Jur.2d, Contracts, § 522 (1964):

Where, however, there is no express or implied limitation in the contract making the stated remedy exclusive, the prevailing view seems to be that a party may at this election pursue either the prescribed remedy or any other remedy the law gives, although there is authority to the contrary.

Noteworthy is the fact that the remedy provided in the GE-Glantz contract is couched in permissive terms “may” rather than the mandatory language “shall.” Glantz states that it makes no difference but we do not agree. Had the contract mandated that GE “shall” do something, then if that was the only remedy allowed for in the contract it might be exclusive, but such is not the case presented. Courts must construe contracts so that they give effect to all provisions and do not produce an unfair and unreasonable result. Citizens Bank v. Frazier, 157 Miss. 298, 127 So. 716 (1930). To hold that the remedy allowed for in the contract would be exclusive in the present case, would be unfair, unreasonable and unjust and we find no merit to the second proposition argued.

Third argument made by Glantz is the assertion that GE has no equitable remedies for recoupment of the payment it made for subsequently disallowed costs, because such remedies are barred by the “volunteer” rule. The “volunteer” rule is stated in McDaniel Bros. Construction Co., Inc. v. Burk-Hallman Co., 253 Miss. 417, 175 So.2d 603 (1965):

[A] voluntary payment can not be recovered back, and a voluntary payment within the meaning of this rule is a payment made without compulsion, fraud, mistake of fact, or agreement to repay a demand which the payor does not owe, and which is not enforceable against him, instead of invoking the remedy or defense which the law affords against such demand.
(253 Miss. at 423, 175 So.2d at 605).

The problem, then, is to determine whether the overpayments made by GE under the contract which is the subject of the dispute in this case, were made under the “volunteer” rule. It is assumed arguendo that the overpayments by GE to Glantz are in fact due back to GE, and thus the entire issue would be whether the “volunteer” rule acts as a bar to the restitution.

At least two reasons preclude application of the “volunteer” rule in this case. First, the payor must have full knowledge of all the facts which would render the payment voluntary. See 66 Am.Jur.2d, Restitution and Implied Contracts, § 95 (1973). In the case at bar, it seems obvious that GE could not have full knowledge of the facts, i. e., whether or not payments made were in actuality valid payments, without an audit of the transactions between the parties. It is also obvious that such an audit was at the discretion of the government, and not GE. Both Glantz and GE appear to have fully understood that an audit of the contract would be made by the government at the end of the performance of the contract. At such time, there would be made any adjustments that needed to be made to the payments under the contract. Second, the determination of whether payments are made on a voluntary basis depends on the facts of the particular case and whether such facts indicate an intent on the part of the payor to waive his rights. As held in Cheshire Oil Co., Inc. v. Springfield Realty Corp., 385 A.2d 835 (N.H.1978):

[T]he payment of money or the making of a contract might be under such circumstances of business necessity or compulsion as will render the same involuntary and entitle the party so coerced to recover the money paid or excuse him from performing the contract.

Here, it can be seen that GE was under extreme compulsion and pressure from NASA to implement the contract for the cleaning of the cryogenic system and also to finish the cleaning of the cryogenic system. Obviously had GE attempted to audit each month’s billing and then determine whether the payments made under it were indeed allowable, a subsequent interruption of work would probably have occurred on Glantz’s part. Under the exigencies of the situation in which GE found itself, to attempt at the end of each monthly billing to accurately determine whether such payments were indeed valid was not feasible. Further, it has been held that time constraints under which payments are made can operate to keep the payments from being voluntary. Johnson v. City of Brockton, 391 N.E.2d 940 (Mass.App.1979).

Careful consideration of the facts of the case at bar and the situations which faced GE and Glantz in carrying out the contract between them leads us to conclude that it would have been unreasonable for GE to have to attempt to determine exactly whether payments were allowable under the contract at the time of each monthly billing. This would seem to be especially true in light of the fact that the accounting system which Glantz had might not have enabled GE at that time to accurately make a determination of whether such costs were allocable and allowable. Upon the testimony and evidence introduced at trial, our opinion is that it cannot be said the chancellor was in error in determining that GE had not waived its rights to recover these payments on the basis of the “volunteer” rule.

Fourthly, Glantz contends that the lower court erred in awarding GE pre-judgment interest pursuant to Mississippi Code Annotated § 75-17-1 (1972) on the sum it was allowed to recover. In a number of cases we have addressed the question as to whether pre-judgment interest should be allowed. O. J. Stanton v. Dennis, 360 So.2d 669 (Miss.1978); Home Ins. Co. v. M. T. Olmstead, 355 So.2d 310 (Miss.1978); State Farm Mutual Automobile Ins. Co. v. Bishop, 329 So.2d 670 (Miss.1976); Commercial Union Ins. Co. v. Byrne, 248 So.2d 777 (Miss.1971).

In making the determination of whether such interest is allowable under these cases, considerable discretion is vested in the trial courts, giving due attention to the peculiar facts and circumstances of the particular case. As held in Home Ins. Co., supra, pre-judgment interest should be allowed “where the denial of the claim is frivolous or in bad faith.” Our study of the record here leads us to the conclusion that there was a legitimate dispute between the parties and we cannot say on the facts of this case that Glantz’s delay in making repayment to GE was either an exercise in bad faith or frivolity. To the contrary, Glantz pursued an administrative appeal before the NASA Board of Contract Appeals and the United States Court of Claims and GE at least approved of the appeals and acquiesced in them. Glantz agrees the six percent pre-judgment interest should apply to the $52,895.20 admittedly owing by Glantz to GE.

The original bill of complaint in this cause was filed October 19, 1967 and the final decree was not entered until November 30, 1978. During this time frame, the Board of Contract Appeals decision was entered July 19, 1973 and the decision by the United States Court of Claims was entered April 27,1976. In pursuing the administrative appeals, Glantz appears to have been doing so completely in good faith regardless of the fact that it may have had a vested interest. In such a situation, equity will not condone the allowance of pre-judgment interest. Under Stanton, supra, we held that upon the peculiar facts of the case a legitimate dispute existed between the parties, and we cannot say that in denying GE’s claim Glantz was acting frivolously or in bad faith. Therefore, there is merit to Glantz’s contention that GE should not have been awarded prejudgment interest, except as to the sum admittedly due GE.

We affirm the decree appealed from except for the allowance of pre-judgment interest. To that extent the decree appealed from will be modified here so as to exclude all pre-judgment interest except as applies to $52,895.20 which Glantz agrees is due GE.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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

      . Sub-part (d) of Section XIV reads as follows: “(d) Payment of indirect costs covered in 1(a) above shall include all items of indirect allowable cost found in Part 15 of the NASA Procurement Regulations.”


source: Caselaw Access Project

author: LEE, Justice,

license: Public Domain

text:
    Edward E. MILLER v. MISSISSIPPI STONE COMPANY, INC., Real Estate Leasing Company, Inc., Magnolia Limestone Products, Inc., George Lambert and Thomas D. Keenum, Sr.
    No. 51621.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Price, Krohn & McLemore, James E. Price, Corinth, for appellant.
    Langston, Lott & Cadle, Joe Ray Lang-ston, Thomas D. Keenum, Sr., Booneville, for appellees.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Edward E. Miller [Miller] filed suit in the Chancery Court of Tishomingo County against George Lambert [Lambert], Thomas D. Keenum, Sr. [Keenum], Magnolia Limestone Products, Inc. [Magnolia], Real Estate Leasing Company, Inc. [Leasing Company], Mississippi Stone Co., Inc. [Stone Company] and other individuals, who were later dismissed from the suit, seeking an accounting and payment of royalty interests in limestone, sand, gravel and clay on certain tracts of land and seeking to impress a lien on the minerals in such tracts. At the conclusion of the trial, the chancellor sustained Miller’s claim to, and interest in, minerals on one of three (3) tracts involved, and disallowed his interest in the other two (2) tracts. Miller has appealed and the defendants have cross-appealed from that judgment.

The question before the Court is whether or not Miller was vested with a royalty interest which extended to any, or all, of three (3) properties involved.

In 1967, M. C. West, Inc. employed appellant, an individual who was knowledgeable and experienced in the limestone business, to explore for a deposit of limestone in the State of Mississippi which could be developed commercially. Appellant spent his full time in that employment, went upon various properties, drilled core samples, secured test results, and examined public documents, covering parts of the north half of Mississippi. After conducting those explorations, he concluded that there was a limestone deposit in Tishomingo County in sufficient quantity and of proper quality to be developed commercially. There was no other limestone quarry in Mississippi, and his discovery raised the possibility of tremendous returns for the developer.

Pursuant to the authority of West, appellant began to negotiate with landowners in the area of the limestone deposit and negotiated with owners of three properties which contained most of the limestone deposit, viz: the Sanders, Gant and Hiawasee properties. He obtained a mineral lease on the Sanders property, and was negotiating for the Gant and Hiawasee properties when West, after having spent approximately eighty thousand dollars ($80,000), on the project, decided not to proceed further. West agreed to transfer unto appellant all the rights which his corporation had obtained for the sum of ten thousand dollars ($10,000). An option was drawn to that effect to be exercised within sixty (60) days.

Appellant realized that, in order to develop the limestone quarry, he needed someone knowledgeable in the field and financially able to finance the operation. He became acquainted with Lambert, who possessed those qualifications, and who also operated a quarry in the State of Tennessee. Lambert investigated the possibilities of the limestone quarry, was convinced of its potential, and entered into an agreement with appellant whereby appellant’s option from West would be exercised by Lambert. He and appellant agreed that they would work together on the project and appellant would be paid a royalty of five cents (5$) per ton of the limestone produced, and seventy-five hundred dollars ($7,500) per year as an advance against the five-cent royalty. Pertinent parts of the Lambert agreement with appellant follow:

“Lambert agrees to pay Miller a royalty of five cents per ton on each ton of such product that leaves the said property, and, in addition, Lambert agrees to assume all the responsibilities imposed upon the Lessee in the said leases, including payment to the Lessors of a royalty of five cents per ton.
Lambert agrees to pay Miller a minimum of $7,500.00 per year, on a monthly basis, beginning April 1, 1969, whether or not they have produced any minerals. This royalty of $7,500.00 shall be applied against future production based on five cents per ton.
Regardless of the amount of minerals mined, the said minimum royalty of $7,500.00 per year shall be paid to Miller as long as it is economically feasible to mine said minerals.
In the event Lambert should purchase any of the said pieces of land, the royalty to Miller shall continue as hereinabove provided.
If Lambert should sell, assign or trade their rights under this agreement, it is understood that the obligations and responsibilities set forth herein shall be imposed upon the assignee or buyer.
Lambert acknowledges that Miller discovered this mineral deposit and has made it possible for Lambert to do business in this regard. If Lambert should open any other business related to this industry, Lambert agrees to pay a royalty of five cents per ton on minerals produced from such other source. In return for this, Miller agrees not to create any competition and to be completely loyal to Lambert as long as Lambert fulfills the obligations under this agreement.”

Difficulties arose in the development and operation of the business. Equipment was purchased which was not suitable for the mining operation and problems arose in the limestone deposit itself. Without detailing the complicated problems that arose in connection with the business, Magnolia Limestone Products, Inc. was organized and succeeded Lambert; Real Estate Leasing Company, Inc. succeeded Magnolia; and Mississippi Stone Co., Inc. succeeded Real Estate Leasing Co. Stone Company is now operating the quarry. Suffice to say, Magnolia’s geologist found that the deposit consisted of thirteen million nine hundred eighty thousand (13,980,000) tons of limestone on the Gant property, twenty-four million (24,000,-000) tons on the Hiawasee property, and twenty-one million eight hundred thousand (21,800,000) tons on the Sanders property, for a total limestone deposit of fifty-nine million seven hundred eighty thousand (59,-780,000) tons, with a gross value of [at one dollars sixty cents ($1.60) per ton] approximately forty million dollars ($40,000,000). Magnolia had purchased one million two hundred thousand dollars ($1,200,000) worth of equipment to be installed at the quarry site on the Gant property. Its successor, Stone Company, bought and installed a different type of crushing equipment at a total cost of more than four million dollars ($4,000,000), and the changes in the equipment and mode of operation were nearing completion at the time of the trial in the lower court. During the changeover period, Stone Company produced eight hundred forty-six thousand (846,000) tons of limestone from April, 1974. As the changeover was progressively completed, production increased to the extent that, at the time of trial, it amounted to an annual rate of over one million (1,000,000) tons. Stone Company was also in the process of organizing a Mississippi corporation for the purpose of building a railroad spur from the quarry to the ICG mainline at an estimated cost of three million dollars ($3,000,000).

There is little dispute in the record as to the facts. All of the appellees from Lambert through Stone Company had actual and constructive knowledge of the agreement between appellant and Lambert, and all transfers of rights from Lambert through Stone Company were made with the knowledge of appellant’s interest in the royalties. The appellees take the position that the operation was not feasible and that such interest was cancelled under the agreement. They also contend that appellant’s interest related only to the Sanders property, from which no limestone had been mined. The plant and quarry were on the Gant property and the limestone which had been produced came from that property.

The chancellor found that the operation was commercially feasible, and he rejected lack of feasibility as a defense. He further found that appellant is entitled to five cents (5<p) per ton for all limestone, sand, gravel and clay which has been mined from the Sanders property, but that appellant has no interest in such minerals, which have been, or would be, mined from the Gant and Hiawasee properties. The chancellor required appellees to provide appellant with a complete accounting of the limestone removed from the Sanders property since April 1, 1969, and, upon completion of the accounting, that the parties apply to the court for the fixing of a time and place for further hearing in the matter.

In Roberts v. Corum, 236 Miss. 809, 112 So.2d 550 (1959), the Court said:

“Contracts are solemn obligations and it is not the function of the courts to make contracts for parties, but rather to give effect to them as written.
$ sf: sf: sfc $ sf:
. We think, however, that it is the sounder policy to adhere to the principle so deeply embedded in our jurisprudence that the plain and unambiguous language of a contract should be construed as written.” 236 Miss. at 822, 823, 112 So.2d at 554, 555.

See also Employers Mutual Casualty Co. v. Nosser, 250 Miss. 542, 164 So.2d 426 (1964).

Appellant and Lambert acknowledged and agreed, on September 27, 1968, that appellant discovered the mineral deposit and made it possible for Lambert to mine and develop same. Lambert agreed that, should he open any other business related to the industry, appellant would be paid a royalty of five cents (5$) per ton on minerals produced from such other source. On March 11, 1970, Lambert transferred his rights to Magnolia, particularly on the Gant property, and expressly provided:

“Further that the party of the first part (Lambert) hereby agrees that if the party of the second part (Magnolia) takes over a contract between the party of the first part and Ed Miller dated September 27, 1968, (which it did by appropriate corporate action) in which Ed Miller is to receive Five ($.05) Cents per ton for all limestone mined and sold from the said twenty-five acres that the party of the second part shall deduct the said Five ($.05) Cents per ton paid to Ed Miller thereby leaving a net of Six ($.06) Cents per ton on all limestone mined and sold from the said twenty-five (25) acres to be paid to the party of the first part.” (Emphasis added)

In an identical royalty contract, executed at the same time between the parties and covering a 34-acre Hiawasee property, the same language was used with respect to Miller’s royalty interest in that property. Also, in an assignment prepared by Keenum and his law partner, but not executed by Miller, the following phrase was set forth: “. . . the Five ($.05) Cent per ton royalty to be paid to (Miller) by George Lambert on any limestone produced and sold in the State of Mississippi.” With reference to that phrase, Keenum testified:

“I am not sure where we got the information that Mr. Miller’s royalty pertained to any royalties from George Lambert in the State of Mississippi, but it probably was because if this quarry went in, it would be the only quarry in the State of Mississippi.”

We are of the opinion that the agreement between appellant and Lambert on September 26, 1968, covers the Sanders, Gant and Hiawasee properties, that the chancellor manifestly erred in limiting royalty to the Sanders property and in excluding royalty from the Gant and Hiawasee properties, that the judgment of the lower court should be affirmed as to the Sanders property, and reversed and judgment rendered here as to the Gant and Hiawasee properties. Lampley v. Pertuit, 199 So.2d 452 (Miss.1967) and Employers Mutual Casualty Co. v. Nosser, supra. Accordingly, the judgment of the lower court is affirmed in part, reversed and rendered in part and remanded to the trial court for an accounting and such further action which may be consistent with this opinion.

AFFIRMED IN PART, REVERSED AND RENDERED IN PART; AND REMANDED TO TRIAL COURT FOR FURTHER ACTION CONSISTENT WITH THIS OPINION.

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


author: COFER, Justice,

text:
    Ollie E. STAUFFER v. Ann H. STAUFFER.
    No. 51670.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Jim Waide, West Point, for appellant.
    Mauldin, Sneed & Mauldin, William M. Mauldin, Pontotoc, Ward A. Busey, Houston, Tex., for appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   COFER, Justice,

for the Court:

This case is here on appeal by Ollie E. Stauffer from a decree of the Chancery Court of Webster County adjudging him to be in contempt of court for noncompliance with a decree requiring him to make alimony, child support, and installment payments, and providing visitation rights with a child born to his union with Mrs. Ann H. Stauffer, the appellee. These requirements and rights were incorporated in the decree severing the marital ties between the parties.

The decree of divorce gave to appellee the paramount custody of the child here involved, with rights in appellant to have his care a month in the summer and a week at Christmas in addition to the right to the appellant to visit the child.

The divorce decree was entered June 13, 1977. Appellant married again on June 22, 1977. On August 12, 1977, he filed a petition to modify the decree as to its support and custody provisions.

In the summer of 1977 the month’s visitation of the child with appellant began on June 18, a visit that was ended August 22, 1977, after appellee had employed a Texas attorney and after she and he had associated a Tennessee attorney where appellant and the child were sojourning. The surrender of the child to appellee came, in Tennessee, after a habeas corpus suit was begun there.

About November 28, 1977, on the eve of the beginning of Chancery Court in Webster County, appellant went to Houston, Texas, where the child was living with ap-pellee, and, by devious procedures (using a motor van not his own, and his and his wife’s wearing of wigs included), he spirited the child away from its mother, the appel-lee, and took him away.

At the beginning of the term of court, appellee and her Texas attorney were in attendance, and filed a petition for writ of habeas corpus to regain custody of the child and also filed a petition for contempt citation. There was an agreement, never incorporated in a decree, that appellant’s petition for modification would be dismissed without prejudice, that appellee’s habeas corpus petition would be abandoned, and appellee’s contempt petition was set for the March 1978 term. On the same day, December 12, 1977, the child was returned to appellee, with whom, as far as reflected by the record, he has since been.

In her petition for contempt citation, she alleged that she had been put to attorney, travel, telephone, and lodging expense in the amount of $5,489.43, which she detailed in the petition, owing to the two occasions of appellant’s taking and keeping the child contrary to the decree of the court. She asked reimbursement for all of the same.

At the conclusion of the contempt hearing, the court rendered opinion that appellant was in civil contempt of court in his actions, as noticed hereinabove, and, by decree subsequently entered, she required repayment of $4,275 of the fees for attorneys which appellee had incurred due to appellant’s contemptuous actions, and that he be imprisoned until he had purged himself of the contempt by paying the $4,275. The decree also required that he post a cash deposit of $2,000 with the Court Clerk before his next visit with the child outside appellee’s home.

On August 14,1978, appellant filed a new petition for modification of the June 13, 1977, decree, praying that he be relieved of certain monetary amounts fixed in the earlier decree and in other respects.

The chancellor denied the relief he sought in that petition.

Appellant has accordingly taken this appeal, and assigns numerous errors:

1. The court erred in awarding $4,275 in attorney’s fees and expenses to Ann’s attorney for prosecuting the contempt action.
2. The chancellor denied Ollie liberty without due process of law, ordering him committed to jail until the $4,275 was paid.
3. The chancellor erred in trying Ollie for criminal contempt without affording him the protection of constitutional criminal procedure.
4. The chancellor erred in finding Ollie guilty of contempt.
5. The chancellor erred in refusing to relieve Ollie of the obligation to make the trailer payments, effective the date of the divorce.
6. The chancellor erred in refusing to . eliminate the alimony allowed.
7. The chancellor erred in refusing to reduce the child support obligation.

Noticing the first of these assignments we recognize the ever-recurring activity of contemnors to put themselves in compliance with decrees between the filing of the petition and the time of its hearing, leaving the petitioner with no violation of the decree about which longer to complain. Here, the chancellor made the award of $4,275 to appellee on the proof that she was forced to extensive legal steps in Texas, Tennessee, and Mississippi, requiring attorneys in all three states. (She allowed substantially less than the combined attorney fees alone). That all of this financial arrangement was occasioned by appellant’s activity to which were added his efforts to procure relief from the decree leaves no basis for division of mind.

Griffith, Mississippi Chancery Practice, Section 666, (2d ed. 1950), cited as authority in Masonite Corporation v. International Woodworkers, 206 So.2d 171, 178 (Miss.1967), says, in treating of criminal and civil contempt:

. In the first [criminal contempt] the punishment is for a past offense and must be suffered; in the second [civil contempt] the contemnor can discharge himself by paying the costs and expenses and doing what he had previously refused to do. . . (Emphasis added).

We find no reversible error in any of the matters assigned as error and affirm the decisions and decrees.

ON MOTION FOR FEE ON APPEAL

The appellee has moved for allowance of attorney fees on appeal, praying that she be allowed fee “either at the usual rate of one-half the amount allowed by the chancellor, or else, that this Court set the fee at whatever amount the Court deems to be reasonable.”

It is this Court’s usual procedure, as pointed out by appellee, to fix such appellate fee, when allowed, at one-half the fee ordered by the lower court. We have maturely considered the record here, and allow a fee, but reluctantly fix the amount at $1,500. We do this because there is in the lower court fee legal activity or diligent preparation therefor, in three states, and there were involved, by the very geographical nature of this activity, multiple attorneys. We are of the view that appellee is entitled to a fee to be paid by appellant. At the same time, equity must enter into our fixing of the amount therefor.

AFFIRMED, AND MOTION FOR APPELLATE FEE SUSTAINED AND $1,500 ALLOWED THEREFOR.

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


text:
    James Allen MORRIS v. STATE of Mississippi.
    No. 51689.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Joe C. Webster, Clarksdale, for appellant.
    A. F. Summer, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   LEE, Justice,

for the Court.

James Allen Morris was convicted in the Circuit Court of Coahoma County for armed robbery and was sentenced to serve a term of twenty (20) years in the Mississippi State Penitentiary. He appeals and assigns two errors in the trial below.

Appellant first contends that the trial court erred in overruling his motion for a directed verdict at the conclusion of the State’s case and that the jury verdict was contrary to the overwhelming weight of the evidence.

About 5:30 p. m. on October 13, 1978, an armed robbery occurred at a grocery store owned by Daniel Shing, 2312 Sixth Street, Clarksdale, Mississippi. Shing was stacking cigarettes in his self-service display when a man came up behind him and said he wanted to see Shing. He turned around, saw the person holding a pistol, became frightened, and started to struggle with him. The robber called to his accomplice who came to the scene and struck Shing on the neck, ending the struggle. The robber then went to the cash register and tried to open it, but was unable to do so because it was electronically operated. He demanded from Shing his money, took five hundred dollars ($500.00), which Shing had in his pocket, and two hundred fifty dollars ($250.00) in his wallet, after which both robbers fled from the store.

The Clarksdale Police Department was notified and Joe Logan, investigator, soon arrived at the scene. Shing had known the man for approximately ten (10) years, and he told Officer Logan that the man’s name was James Allen Morris. Mrs. Shing had also known Morris for the same length of time. Wayne Campbell and Maurice Washington, 14-year-old boys, were in the store and they knew and recognized Morris. Rickey Washington, age thirteen (13), was present and he positively identified Morris as the robber.

Appellant’s defense was an alibi. He testified that he went to the home of a Mrs. Lillian Gilkey at 6:30 on the morning of the robbery for the purpose of baby-sitting her three children. He said that she came home for lunch and he was there; she came home for supper between 5:00 and 6:00 p. m. and he was there; and he remained at her house until she finally got off work at 9:00 that night. Mrs. Gilkey corroborated appellant’s alibi. She also testified that her brother was a close friend of appellant and that she had been convicted of shoplifting and assault. Although she knew police officers in Clarksdale, she did not tell them before the trial that appellant was in her home at the time of the robbery.

The jury accepted the State’s evidence and rejected the alibi defense of appellant. The verdict is not contrary to the overwhelming weight of the evidence and is supported by the evidence. Johnson v. State, 359 So.2d 1371 (Miss.1978); Harris v. State, 206 So.2d 829 (Miss.1968); Vickers v. State, 323 So.2d 743 (Miss.1975).

The appellant next contends that there was no evidence of any intent to commit the robbery on the part of James Allen Morris, which assignment is wholly without merit.

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

AFFIRMED.

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


author: WALKER, Justice,

text:
    Nettie S. MALONE, Executrix of the Estate of Robert Crowe Malone, Deceased, v. Robert C. MALONE, Jr., et al.
    No. 51619.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Holcomb, Dunbar, Connell, Merkel, Tolli-son & Khayat, Charles M. Merkel, Clarks-dale, for appellant.
    Jacobs, Griffith, Pearson, Eddins & Po-vall, Charles C. Jacobs, Jr., Cleveland, for appellees.
    Before ROBERTSON, P. J., and WALKER and LEE, JJ.
   WALKER, Justice,

for the Court.

This appeal is taken from a decree of the Chancery Court of the Second Judicial District of Bolivar County, Mississippi, entered on December 26, 1978, construing the will of Robert Crowe Malone, a lifetime resident of Bolivar County, Mississippi, who died testate on August 30, 1978. The last will and testament of the testator, dated January 9, 1978, was duly admitted to probate on September 28, 1978, and letters testamentary were granted unto Nettie Singleton Malone as executrix of the estate of Robert Crowe Malone.

After the will was duly probated, the executrix, Nettie Singleton Malone, filed a petition seeking a construction of certain provisions of the will. Several questions were posed for construction and answered by the lower court, but the only question involved on this appeal is whether the chancellor was in error in holding that the vested interest of Nettie Singleton Malone in all of the property of decedent contained and allocated to Share No. 1 was less than a fee simple interest. The pertinent provisions of the will are as follows:

If my wife, NETTIE SINGLETON MALONE, survives me, my Executor shall divide my residuary estate, wherever situated, into two parts, hereinafter designated as Share No. 1 and Share No. 2, each ascertained as follows:
(a) SHARE NO. 1 shall consist of that fractional share of my residuary estate which will equal the maximum estate tax marital deduction allowable in determining the Federal Estate Tax on my estate for Federal Estate Tax purposes, less the aggregate value for Federal Estate Tax purposes of all interests in property which passes to my wife under other provisions of this Will, or which have already passed to her or for her benefit otherwise than under this Will, by operation of law, through life insurance policies, property owned as joint tenants with the right of survivorship, or otherwise, but only to the extent that such interests are included in determining my gross estate and are allowable as a marital deduction for Federal Estate Tax purposes; provided, however, that in making these computations which shall be necessary to determine such fractional share, the final determination in the Federal Estate Tax proceedings concerning value shall control; and provided, further, that only assets that qualify for the marital deduction allowable in determining the Federal Estate Tax shall pass or be allocated to Share No. 1.
(b) SHARE NO. 2 shall consist of all the rest, residue and remainder of my property, real, personal or mixed, wheresoever located, and whether acquired before or after the execution of this Will. I do hereby give, devise and bequeath all of Share No. 2 unto THE BANK OF CLEVELAND of Cleveland, Mississippi, a Branch Bank of Grenada Bank, of Grenada, Mississippi, a Mississippi banking corporation, in Trust, however, for the following purposes, to-wit:
Said Trustee shall make all proper deductions, including compensation to said Trustee, and shall pay over and distribute the net income from said Trust in quarterly or other convenient installments, but at least annually, to my wife, NETTIE SINGLETON MALONE, so long as she shall live. From and after the death of my said wife (or from and after my death if my said wife shall not survive me) I devise and bequeath the home which I own and the real estate upon which it is situated unto my son, HARRY DIX MALONE, and his wife, RACHEL MALONE.
I devise and bequeath all the rest and remainder of my property, real, personal and mixed, wheresoever situated, as follows: unto RACHEL MALONE, wife of my son, Harry Dix Malone, 1 share, for and during the term of her natural life with remainder after her death to vest in the beneficiaries of her Estate; unto ELIZABETH MALONE, wife of my son, Robert Crowe Malone, Jr., 1 share, for and during the term of her natural life, with remainder after her death to vest in the heirs of her body; unto my grandson, KARL PATRICK MALONE, 1 share; unto my grandson, MICHAEL SHAWN MALONE, 1 share; unto my granddaughter, MOLLY MARIE MALONE, 1 share; unto my granddaughter, KELLY ANN MALONE, 1 share; unto my grandson, ROBERT CROWE MALONE, III, 1 share; unto my granddaughter, LILLIAN RUTH MALONE, 1 share; and my niece, BETTY CAROLYN MALONE, 1 share.
Upon the death of my wife, any property remaining in Share No. 1 shall be added to and distributed to Share No. 2, to the same extent as if it had been an original part thereof, (Except the home and realty upon which it is situated which I have bequeathed unto my son, Harry Dix Malone and his wife, Rachel Malone, after the death of my said wife, Nettie Singleton Malone, as hereinabove set out).

It was from this language that the chancery court was asked to determine precisely the type or character of interest which the testator intended to leave to his surviving spouse. The chancellor in a well-reasoned opinion concluded:

It is accordingly the Court’s opinion and a Decree consistent therewith will be entered that Share No. 1 was intended to be devised and bequeathed to Nettie Singleton Malone, the surviving spouse of the Testator. Said property was devised to her with a clearly unlimited lifetime power of disposition exercisable by her alone without joinder by any other parties. Her interest encompasses the full, complete and absolute power to dispose of the entire interest of said property to either herself or her estate or to any other party by gift or otherwise and is limited only to the extent that any portion of said property remaining at her death is not subject to a testamentary power of appointment in her but passes to the' remainder beneficiaries of Share No. 2.

The appellant, Mrs. Nettie Singleton Malone, contends that the chancellor was in error and that the dominant intent of the testator was to pass to the surviving spouse an outright bequest of a fee simple interest in Share No. 1. In support of this contention the appellant stated that the language, “upon the death of my wife any property remaining in Share No. 1 shall be added to and distributed to Share No. 2 to the same extent as if it had been an original part thereof,” was merely superfluous and non-controlling, having been inadvertently carried over by a scrivener from a marital trust pour-over provision of a preceding will.

The duty of the lower court and this Court in construing wills and trusts is to ascertain and give effect to the intention of the testator. In arriving at this intention, the court is required to consider the entire instrument, sometimes said “From the four corners of the instrument.” Where the instrument is susceptible of

more than one construction, it is the duty of the court to adopt that construction which is most consistent with the intention of the testator. Deposit Guaranty National Bank v. First National Bank, 352 So.2d 1324 (Miss.1977). Further, effect should be given, if possible to all words, clauses, and provisions of the instrument. Paine v. Sanders, 242 Miss. 392,135 So.2d 188 (1961); First National Bank of Laurel v. Commercial National Bank & Trust Co., 247 Miss. 677, 157 So.2d 502 (1963).

Construing this will in the light of the above rules, we are of the opinion that the chancellor correctly construed it. The wills executed by Mr. Malone in 1958 and 1966, granted the income from Share No. 1 to Mrs. Nettie S. Malone and she was given a power to appoint by her will beneficiaries as to any part of Share No. 1 remaining at the time of her death. The wills (1958 and 1966), both went on to provide that in the event she failed to make such appointment during her lifetime, that any remaining portion of Share No. 1 should become a part of Share No. 2.

However, in the 1975 will, the language that gave Mrs. Malone the right to appoint by her will beneficiaries as to any part of Share No. 1 remaining at the time of her death, was deleted, and on the third page of the 1975 will the testator provided only that, Upon the death of my wife, any property remaining in Share No. 1 shall be added to and distributed to Share No. 2.”

This same identical language which appeared in the 1975 will was brought forth in the 1978 will which was admitted to probate, and we are unable to say that this language in the 1978 will was other than deliberate. It is readily apparent that the testator intended for Nettie S. Malone to have Share No. 1 to use as she saw fit during her lifetime with the full, complete and absolute power to dispose thereof; that she was limited only to the extent that any portion of said property remaining at her death was not subject to a testamentary power of appointment in her, but passed to the remaining beneficiaries of Share No. 2.

Justice Patterson, speaking for the Court in Seal v.. Seal, 312 So.2d 19 (Miss.1975) stated:

Prerequisite to the use of rules of construction for adjudicating the intention or meaning of ambiguous instruments is an initial determination that there exists an ambiguity. The employment of the rules of construction is never permitted to defeat the plain, expressed intention of the testator.

There was some ambiguity about the beneficiary of Share No. 1, but this ambiguity was explained away by other provisions of the will and the parties agreed. For the reasons stated, we are of the opinion that the chancellor was imminently correct in holding it was the intention of the testator that the interest of Nettie S. Malone be limited only to the extent that such property, if any, allocated to Share No. 1 as may remain at the time of her death, is not subject to a testamentary power of appointment in her, but will pass in accordance with the provisions of the will of Robert Crowe Malone relating to the ultimate disposition of Share No. 2.

Therefore, the decree of the chancery court must be and is affirmed.

AFFIRMED.

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

      . For other cases dealing with similar provisions in wills, see Selig v. Trost et al., 110 Miss. 584, 70 So. 699 (1915); Spiva v. Coleman, 122 Miss. 142, 84 So. 144 (1920); Cross v. Cavanah, 198 Miss. 137, 21 So.2d 473 (1945); Vaughn, Executrix v. Vaughn, 238 Miss. 342, 118 So.2d 620 (1960).


author: SUGG, Justice,

text:
    D. C. MATHIS et al. v. STATE of Mississippi ex rel. A. F. SUMMER, Attorney General, et al.
    No. 51666.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Smith, Downs, Ross, Trapp & Coleman, Orma R. Smith, Jr., Sharp & Fisher, Corinth, for appellants.
    A. F. Summer, Atty. Gen. by Pete J. Cajoleas, Special Asst. Atty. Gen., Jackson, for appellees.
    Before SMITH, P. J., and SUGG and BOWLING, JJ:
   SUGG, Justice,

for the Court:

This is an interlocutory appeal from the decree of the Chancery Court of Alcorn County overruling defendant’s general demurrer.

A. F. Summer, Attorney General, and W. Hampton King, Auditor of Public Accounts, for the State of Mississippi, filed a suit against the members of the Board of Supervisors of Alcorn County and the sureties on their official bonds to recover public funds appropriated and expended by the Board of Supervisors for an object not authorized by law. The suit was filed by virtue of the authority of section 7-7-211 Mississippi Code Annotated (1972). The bill of complaint alleged that the defendants were the duly elected, qualified and acting members of the Board of Supervisors of Alcorn County and in the course of the exercise of their official duties appropriated and expended public funds in the total amount of $1,593.09 for an object not authorized by law. The bill charged that the appropriations were made for payment of gasoline and oil purchased by the defendant, D. C. Mathis, from Exxon Company during the period of time beginning April 6, 1976, and ending April 11, 1977, that the gasoline and oil purchased by Mathis was placed into vehicles not owned by Alcorn County, and that W. Hampton King, on March 8, 1978, made proper demand in accordance with section 7-7-211 upon the individual defendants and their bonding companies for repayment to Alcorn County of the $1,593.09 plus accrued interest. The bill also alleged that the individual defendants were personally liable for the amount of the appropriations and expenditures under the provisions of section 19-13-37 Mississippi Code Annotated (Supp.1978). Section 19-13-37 follows:

(1) If a board of supervisors shall appropriate any money to an object not authorized by law, the members of the board who did not vote against the appropriation shall be liable personally for such sum of money, to be recovered by suit in the name of the county, or in the name of any person who is a taxpayer suing for the use of the county, and such taxpayer shall be liable for costs in such case.
The individual members of all boards of supervisors, boards of trustees and directors of public water supply districts and all other special service districts, created and existing under the laws of the State of Mississippi, causing any public funds to be expended, any contract made or let, any payment made on any contract or any purchase made, or any payment made, in any manner whatsoever, contrary to or without complying with any statute of the State of Mississippi, regulating or prescribing the manner in which such contracts shall be let, payment on any contract made, purchase made, or any other payment or expenditure made, shall be liable, individually, and upon their official bond, for compensatory damages, in such sum up to the full amount of such contract, purchase, expenditure or payment, as will fully and completely compensate and repay such public funds for any actual loss caused by such unlawful expenditure.
(2) In addition to the foregoing provision, for any violation of any statute of the State of Mississippi prescribing the manner in which contracts shall be let, purchases made, expenditure or payment made, any public official who shall substantially depart from the statutory method of letting contracts, making payments thereon, making purchases or expending public funds shall be liable, individually and on his official bond, for penal damages in such amount as may be assessed by any court of competent jurisdiction, up to the sum of five thousand dollars ($5,000.00).
(3) Any sum recovered under the provisions hereof shall be credited to the account from which such unlawful expenditure was made.

We are of the opinion that the bill of complaint stated a cause of action and the chancellor properly overruled the demurrer to the bill of complaint.

The defendants, who are the appellants in this Court, have attempted to inject into this case the defense that the gasoline was placed in a vehicle used by thé defendant Mathis while traveling on official business for Alcorn County. This issue was not raised by the pleadings, was not before the trial court, and is not before this Court on appeal. Accordingly, we do not decide this issue but note that there was no statutory-provision for payment of travel expenses for members of boards of supervisors before the legislature adopted Chapter 461, Mississippi General Laws (1977), which took effect on April 13, 1977. Section 19-3-67 Mississippi Code Annotated (Supp.1979).

AFFIRMED.

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


author: SMITH, Presiding Justice,

text:
    Chester K. BURNHAM v. CITY OF JACKSON, Mississippi.
    No. 51672.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Watkins & Eager, Clifford B. Ammons, James A. Becker, Jr., Jackson, for appellant.
    John E. Stone, Jackson, for appellee.
    Before SMITH, P. J., and SUGG and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

Chester K. Burnham appeals from a decree of the Chancery Court of the First Judicial District of Hinds County dismissing his bill in which he sought to remove as a cloud upon his title the claim of the City of Jackson to be the owner of certain real estate.

In 1935 Kennington Investment Company had conveyed the property to the City of Jackson (with other parcels) for a recited consideration of ten dollars and other valuable considerations, the deed concluding with this provision:

Said parcel of land is only to be used for park or other public purposes and in the event said parcel is not used for said purposes or is ever used for private or commercial purposes, then the title thereto is to revert to the grantor, its successors or assigns.

On June 30, 1978, Burnham obtained a deed from Kennington purporting to convey the property to him. The City of Jackson declined to recognize Burnham’s claim of ownership and Burnham filed this suit.

In the lower court, by his bill and testimony as a witness, Burnham asserted that the City of Jackson “had done nothing” to make the small tract a park and that, therefore, title had reverted, and, as Kenning-ton’s assignee, was vested in him. In support of this thesis, several persons were offered as witnesses whose testimony tended to indicate that virtually no improvements had been made by the City, and except for cutting the grass from time to time that the land had remained in much the same condition as it had been when it was conveyed to the City.

The City of Jackson countered with testimony that various municipal plans for the improvement of the “park” had been made but had not been fully implemented because of priorities which had preempted the funds needed for the purpose. A concrete sidewalk had been built along the southern edge which served the property as well as Poplar Street. Several photographs disclose that a semicircular gravel road has been constructed around the northern perimeter, and fences erected along the sides of ditch. A bench or so has been placed on the lot and a sign designating the property as Belhaven Park erected. The property has been used from time to time by children and other members of the public, although these occasions were somewhat rare.

It is conceded by Burnham that the property is and has been open and available to the public and that the property has not been used for any “private or commercial purposes.”

Various city projects for the further landscaping and development of the property were related, and there was introduced a detailed map and plan, prepared by the City Engineer in 1976, covering a proposal for the planting of shrubs and the laying out of walks. The property has not, since its conveyance to the City, been assessed for municipal taxes.

It appears to be the position of appellant that a tract of land cannot be a park unless it is made into a “playground,” with playground equipment, or into a picnic ground, with tables, benches and the like. Webster’s New International Dictionary, Second Edition (1950), however, contains this definition of a park:

(4) An area of land reserved from settlement and maintained in its natural state as a public property; as Yellowstone National Park; Yosemite National Park.

Webster’s New Collegiate Dictionary (1977), gives these definitions of a park:

(2 a): A piece of ground in or near a city or town kept for ornament and recreation.
(b): An area maintained in its natural state as a public property.

In City of Greenville v. Thomas, 241 Miss. 633, 131 So.2d 659 (1961), property had been conveyed to the City of Greenville to be used for the purposes of a park. The City built a street on it and granted an easement to a power company to construct and maintain high voltage power lines across it. These actions were challenged as breaches of the condition in the deed that it was to be used only as a park. All Justices agreed that the property was, indeed, a park, but Justice Rodgers dissented from the conclusion of the majority which upheld the right of the City to grant the easement for power lines, basing his dissent upon the inherent danger that would result to persons using the park. In his dissent (on this restricted point) Justice Rodgers had occasion to define a park:

The average citizen thinks of a park as: “. . . ‘a pleasure ground — a place of enjoyment and recreation and for the public generally,’ eliminating ‘all idea of business or administrative uses, or enjoyment by a limited number of people’. A similar test has been applied for beach front, when turned into park areas. Parks have been looked upon as ‘set apart and maintained by the cities as places conducive to the health, pleasure, comfort and amusement of the public. An enjoyment of fresh air and sunshine, and also the grass, flowers and trees, is most important in securing the social, physical, and moral well being of the people, and parks, as a means of providing these bounties of nature for all the people, have come to be considered as essentially necessary.’ Humphreys v. San Francisco, 92 Cal.App. 69, 75, 268 P. 388, 391 (1928).” Rhyne’s Municipal Law, p. 465.
Parks are sometimes called Promenades because these plots of ground are places where natural plant life is permitted to grow, and people are accustomed to walk. They are sometimes called commons; because they are used by the public.
(131 So.2d at 665).

This Court has defined conditions subsequent inserted into a deed as those which may operate upon an estate already vested and render it liable to be defeated. In such a case all that remains in the grant- or is the mere possibility of reverter or right of entry on condition broken. The estate will remain defeasible until the condition be performed, destroyed, or barred by the statute of limitations or by estoppel. Memphis & C. R. Co. v. Neighbors, 51 Miss. 412.

We have also said that “a forfeiture clause in deed conveying land for a public purpose with a provision for reversion is strictly construed and mere non-use is not sufficient evidence of complete abandonment to work a forfeiture.” Board of Supervisors of Franklin County v. Newell, 213 Miss. 274, 56 So.2d 689 (1952).

In Newell, supra, property had been conveyed to Franklin County, the deed providing that the “land shall revert to the grant- or herein, his heirs and assigns when it fails to be used for school purposes.” In deciding that no forfeiture had occurred under the facts of that case, this Court stated the general rule: “[I]t is well established that a forfeiture will not be implied unless the evidence to that effect is clear and convine-ing. 19 Am.Jur., Estates, Sec. 65; 4 Thompson, Real Property, Secs. 2044, 2063, 2096; 47 Am.Jur., Schools, Sec. 69.”

The Court also said: “[Proof of] an abandonment must be made to appear affirmatively by the party relying thereon and that he has the burden to prove the same by clear, unequivocal and decisive evidence. 1 Am.Jur., Abandonment, Sec. 17.”

In Newell, supra, the Court said further: “This is in accord with the general rule that a forfeiture is not incurred by the use of land 'for another purpose consistent with the purpose specified. 4 Thompson, Real Property, Sec. 2104.” Citing Consolidated School District, 1941, 202 Ark. 1074, 155 S.W.2d 353. The Court concluded: “In brief, forfeiture clauses with a reversion of the present type are strictly construed. Mere non-use with nothing more is not sufficient evidence of complete abandonment.”

The photographs in the record show that the property in controversy meets accepted definitions of what constitutes a “park.” Belhaven Park is a place in a modern city, in the midst of what has been referred to in another context as an “asphalt jungle,” providing a sort of oasis, where grass grows and there are trees and plants in their natural state, a place which is accessible to the public, where people may go and enjoy the open air. A park may be as extensive as Yellowstone or Yosemite, or may be as small as Belhaven, but a failure to provide playground equipment or to place picnic tables and benches upon it will not destroy its character as a park. Burn-ham failed to meet the burden which rested upon him to prove “by clear, unequivocal and decisive evidence” that the city had forfeited its title by a breach of the clause providing for a reverter.

The decree appealed from is supported by the evidence in the record and is affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Donald KIMBROUGH v. STATE of Mississippi.
    No. 51683.
    Supreme Court of Mississippi.
    Feb. 13, 1980.

      Chatwin M. Jackson, Kosciusko, for appellant.
    A. F. Summer, Atty. Gen. by Robert D. Findley, Special Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BROOM and LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Donald Kimbrough was tried in the Circuit Court of Attala County on a charge of armed robbery. From a verdict of guilty and a sentence of twenty years, he appeals, contending the state adduced insufficient evidence to support the conviction, and that inadequate advance notice of the hearing on the state’s “Petition to Conduct Lineup” deprived him of due process of law.

At about 9:30 a. m. on February 9, 1979, Mrs. Victor Turner, an elderly widow then alone, was the victim of a robbery committed by a black male in her home in Attala County. Her assailant struck her on the head and shot her in the back with a shotgun before absconding with $47 taken from a family Bible. Miraculously surviving the assault, Mrs. Turner managed to crawl to her telephone and summon the authorities.

When Sheriff Marvin Lawrence arrived, he found Mrs. Turner in the front room of her home seated next to a desk on which there rested a book of blank checks, the top unsigned check being made to the order of “James Clark” in the amount of $5. On February 12, James Clark, half brother of Donald Kimbrough, accompanied Sheriff Lawrence and his aides on a search of a field road running about one mile between the home of Mrs. Turner and the home of Mrs. Alberta Hull, grandmother of both Clark and Kimbrough. Clark discovered and called to the others’ attention yet another check, drawn on Mrs. Turner’s account and made to the order of “James Clark,” which had been discarded or lost along the road.

James Clark lived with Mrs. Hull, and Donald Kimbrough lived just “across the road” in his mother’s trailer. Kimbrough and not Clark, however, spent the night of February 8 with Mrs. Hull, Clark having lodged elsewhere with a friend, expecting to go to work the following morning.

Mrs. Turner identified, both in and out of court, Donald Kimbrough as her assailant, although she mistakenly called him by the name “James Clark” immediately after the robbery, at the time of a lineup, and at the time of her in-court identification. The lineup, conducted on March 15, 1979, in the presence of defense counsel, who concedes it was fair and untainted by suggestiveness, involved eight or more persons, including both James Clark and Donald Kimbrough. Mrs. Turner identified Kimbrough as her assailant, although she referred to him as “James Clark.” Later, in the sheriff’s office, Mrs. Turner pointed to James Clark, out of the presence of Donald Kimbrough, erroneously stating, “that is the man I pointed out in [the lineup].” It is probable that Mrs. Turner’s confusion arose from the resemblance of the half brothers, both of whom had for several years lived within a mile of her rural home. It is noteworthy, however, that each time she had the opportunity to view Clark and Kimbrough together, she positively identified Kimbrough as her assailant while referring to him as “James Clark.”

The evidence, when viewed most favorable to the state, supports the jury’s verdict. We think it clear that Mrs. Turner’s confusion was considered nominal, because it was related to the assailant’s name and not his identity. In our opinion, it did not destroy her identification of Kimbrough as the person who assaulted and robbed her. The jury, having heard her testimony along with that of the appellant, accepted her identification and rejected the alibi offered by the appellant.

In an out-of-court statement and from the stand, Kimbrough stated he spent the night of February 8 with his grandmother, Alberta Hull, and left before eight the next morning to hunt, carrying his grandmother’s twelve-gauge shotgun and ammunition described as “slugs.” He testified he bagged a deer in the woods bordering the Natchez Trace and as he threw the deer onto his shoulder, heard a man shout, “Hold it!” Thinking the voice to be that of a warden he retreated into the woods, breaking the stock of his gun in his haste to escape. The stock, according to the appellant, was left behind along the bank of a creek which he jumped as he escaped the site.

As mentioned, the alibi testimony of the appellant was rejected by the jury. This was not unreasonable, in our opinion, because no wardens or other witnesses were produced to show their presence in the area, and a search shortly after the crime failed to disclose the carcass of a deer or the gunstock. Moreover, there exists great doubt as to whether there was any ammunition other than “bird shot” in the home of Mrs. Hull from which the appellant left. Mrs. Turner’s wounds resulted from bird shot.' Finally, when the sheriff came to investigate, Kimbrough concealed himself in the back of the house. Overall, the testimony of Kimbrough placed him in the vicinity of the Turner home with a shotgun at the time the assault and robbery. This factor, accompanied by the identification by Mrs. Turner, was sufficient, in our opinion, to support the jury’s verdict, because its province in matters of credibility is broad. See Madison v. State, 290 So.2d 607 (Miss.1973); Freeland v. State, 285 So.2d 895 (Miss.1973); Clanton v. State, 279 So.2d 599 (Miss.1973); Nash v. State, 278 So.2d 779 (Miss.1973); Campbell v. State, 278 So.2d 420 (Miss.1973); and cf. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

The inconsistencies of the in-court identification go only to the credibility and weight of the evidence, which is a factual determination to be made by the jury. Luckett v. State, 354 So.2d 1119 (Miss.1978); Vickers v. State, 323 So.2d 743 (Miss.1975); and Passons v. State, 239 Miss. 629, 124 So.2d 847 (1960).

The appellant’s remaining argument is that his counsel received no more than twenty-four hours notice prior to the holding of the March 15, 1979, lineup. However, defense counsel received notice of the lineup and attended. What is more, defense counsel concedes the lineup suffered from no constitutional infirmity whatsoever, all the process that was “due” having been afforded the appellant. We are nevertheless left with the argument that defense counsel should have been given time before the hearing on the “Petition to Conduct Line-up” in order “to research the applicable law,” even though that “law” was indisputably followed by securing counsel’s presence and eliminating any suggestiveness from the identification procedure. In essence, the appellant argues, “My rights were not violated, but because my lawyer had not enough time to determine whether my rights were violated, my rights were violated.” This clearly poses a non sequitur within the contemplation of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

AFFIRMED.

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


text:
    Joy Hurt PETERS v. John Robert PETERS.
    No. 51699.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Gholson, Hicks & Nichols, Stephen C. Edds, Columbus, for appellant.
   Appeal from .Chancery Court, Noxubee County; W. W. Brand, Jr., Chancellor.

Brown & Perkins, Ernest L. Brown, Macon, for appellee.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    The HOME INSURANCE COMPANY v. JEWELS BY LOWELL, INC.
    No. 51675.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Bourdeaux & Jones, William C. Ham-mack, Meridian, for appellant.
    Adams & Odom, Joe R. Odom, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; Howard R. Pigford, Chancellor.

Before ROBERTSON, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    L. C. COLEY v. STATE of Mississippi.
    No. 51695.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Louis Fondren, Pascagoula, for appellant.
    A. F. Summer, Atty. Gen. by Karen A. Gilfoy, Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jackson County; Merle F. Palmer, Judge.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

AFFIRMED.


text:
    Sandra K. PIPPIN v. James Falcon PIPPIN, Jr.
    No. 51686.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    Lewis, Booker & Lewis, Thomas L. Booker, Philadelphia, for appellant.
    Self, Jordan & Jones, Robert D. Jones, Meridian, for appellee.
   Appeal from Chancery Court, Lauderdale County; William Neville, Chancellor.

Before PATTERSON, C. J., and BROOM and COFER, JJ.

AFFIRMED.


text:
    J. A. McDANIEL et al. v. Virgil Frank JACKSON and Concordia Bank & Trust Company.
    No. 51587.
    Supreme Court of Mississippi.
    Feb. 13, 1980.
    John T. Green, Frank W. Walden, Natchez, for appellant.
    Handy, Fitzpatrick, Gwin, Blough & Lewis, Jim C. Blough, Adams, Forman, Truly, Ward, Smith & Bramlette, E. C. Ward, Natchez, for appellee.
   Appeal from Chancery Court, Adams County; Fred C. Berger, Chancellor.

Before SMITH, P. J., and SUGG and BOWLING, JJ.

Affirmed on direct and cross-appeals; one-half (V2) of costs taxed to appellants and one-half (V2) to cross-appellant.


text:
    OPINION OF THE JUSTICES.
    No. 263.
    Supreme Court of Alabama.
    Feb. 12, 1980.
   Members of the House of Representatives State Capitol Montgomery, Alabama

Dear Sirs and Mesdames:

We have received House Resolution No. 8, adopted February 5, 1980, which is as follows:

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE LEGISLATURE OF ALABAMA, That we respectfully request the Honorable Chief Justice and Associate Justices of the Supreme Court or a majority of them, to give this body their written opinions on the following important constitutional question which has arisen concerning the pending bill, H.B. 138, a copy of which is attached to this resolution and made a part hereof by reference:
1. Does H.B. 138 conflict with Article 4, Section 44 of the Constitution of Alabama 1901?
RESOLVED FURTHER, That the Clerk of the House of Representatives is hereby directed to send sufficient true copies of the pending bill, H.B. 138, to the Clerk of the Supreme Court of Alabama, and to transmit this request to the Justices of the Supreme Court forthwith upon adoption of this Resolution.

The copy of House Bill No. 138, forwarded with the resolution, reads:

A BILL TO BE ENTITLED AN ACT
Relating to the annual fee and assessment required to be paid by state chartered savings and loan associations, so as to change the assessment from the existing $.20 per $1,000.00 of total assets to provide that such assessment fee shall be fixed by the Savings and Loan Commissioner and approved by the State Savings and Loan Board from time to time, and to repeal § 5-16-38, Code of Alabama 1975.
BE IT ENACTED BY THE LEGISLATURE OF ALABAM [ALABAMA]:
Section 1. Section 5-16-38, Code of Alabama 1975 is hereby repealed.
Section 2. Each savings and loan association chartered by the State of Alabama shall on the call of the Commissioner pay the State Banking Department an assessment fee based on the total resources of the association as may be shown by its last report to the Banking Department. The rate of such assessment shall be in an amount fixed by the Commissioner and approved by the State Savings and Loan Board and the assessment may be made more frequently than annually. All such fees shall be paid into the special fund set up by the State Treasurer pursuant to § 5-1-5, Code of Alabama 1975, and used in the supervision and examination of savings and loan associations. No other assessment or license of any kind shall be levied against or collected from any savings and loan association except the ordinary taxes assessed against property in general and except as may be specifically provided for in this act.
Section 3. All laws or parts of laws inconsistent herewith are hereby repealed to the extent of such inconsistency.
Section 4. This act shall become effective immediately upon its passage and approval by the Governor or upon its otherwise becoming law.

The proposed Bill would repeal Code 1975, § 5-16-38, which requires each savings and loan association doing business in this state to pay an “annual fee” of $50.00 and an “annual assessment” of $0.20 per $1,000.00 of its total assets. Bill No. 138 would abolish the $50.00 “annual fee” currently required and would give the Savings and Loan Commissioner the authority to fix the rate at which the savings and loan associations would be required to pay an “assessment fee.” Additionally, the Bill would allow the Commissioner to determine the frequency with which the assessment could be made. The question here presented is whether the proposed grant of authority to the Commissioner under H.B. 138 is an unconstitutional delegation of legislative power under Article IV, Section 44 of the 1901 Constitution of Alabama.

Section 44 of the Constitution is the express constitutional provision for representative government. Opinion of the Justices, 287 Ala. 321, 251 So.2d 739 (1971). The power vested in the legislature to make laws cannot be delegated to any other department of government. In re Opinion of the Justices, 232 Ala. 56, 166 So. 706 (1936). As the following discussion demonstrates, we have determined that the authority which would be conferred upon the Savings and Loan Commissioner upon the enactment of H.B. 138 is inherently legislative. Accordingly, our answer to your question is Yes.

The “assessment fee” required of each savings and loan association under the Bill is essentially a tax as that term has been defined by this Court. For example, in Ex parte State ex rel. Attorney General, 252 Ala. 149, 39 So.2d 669 (1949), this Court stated that:

A tax is a charge levied by the sovereign power on persons and property for the support of government and for public purposes.

Clearly, the proposed assessment fee would constitute a tax under the foregoing definition, as the moneys received under the Bill would be paid into a special fund set up by the State Treasurer and would be used in the supervision and examination of savings and loan associations.

The levying of a tax is a purely legislative power. Opinion of the Justices, 291 Ala. 262, 280 So.2d 97 (1973). Setting the rate of taxation is inherently a part of the power to “levy” taxes [see Standard Oil Co. v. Limestone County, 220 Ala. 231, 124 So. 523 (1929)]. Delegation of the power to levy taxes is expressly limited by Article XI, Section 212 of the Constitution of 1901. Because the fixing of the rate of taxation by the Savings and Loan Commissioner offends the limitation imposed by Section 212, we must conclude that the proposed Bill conflicts with Section 212 of the Constitution as well as with Article IV, Section 44.

QUESTION ANSWERED.

Respectfully submitted,

C. C. Torbert, Jr.,

Chief Justice

Hugh Maddox

James H. Faulkner

Reneau P. Almon

Janie L. Shores

Sam A. Beatty

Associate Justices


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Roger L. DAVIS, Respondent.
    No. 56469.
    Supreme Court of Florida.
    As Corrected On Denial of Rehearing Jan. 31, 1980.
    Kirby L. Sullivan, Bar Counsel, and David G. McGunegle, Branch Staff Counsel, Orlando, and John A. Boggs, Asst. Staff Counsel, Tallahassee, for complainant.
    Roger L. Davis, in pro. per.
   CORRECTED OPINION

PER CURIAM.

This matter is before the Court on petition for resignation from The Florida Bar in lieu of discipline pursuant to Florida Bar Integration Rule, article XI, rule 11.08.

In this disciplinary proceeding, the referee made the following finding of facts: (a) Respondent is a member of the Florida Bar subject to the jurisdiction and disciplinary rules of the Supreme Court of Florida.

(b) In 1977 respondent represented one Edward Peters who intended to purchase a condominium then owned by Mr. and Mrs. Joseph Cellura. The Celluras rented the condominium unit and the manager of the condominium collected the rent therefrom. The respondent collected the rent from the manager of the condominium on behalf of his client, Edward Peters. Said rent was in the form of two (2) checks made payable to the respondent. The respondent cashed said checks and did not place them in his trust account.

(c) The respondent did not deposit the money in his trust account pursuant to his clients’ [sic] (Peters) instructions.

(d) The respondent’s client (Peters) did not close the transaction for the purchase of the condominium unit and the Celluras then sold the condominium unit to one Ted Minkel.

(e) The Celluras assigned to Minkel the rents previously collected by the condominium manager that had been paid over to the respondent. Minkel made demand upon respondent for the rental monies in the sum of $1,870.00.

(f) Respondent prepared a release and authorization to be signed by the Celluras directing respondent to pay the money over to Minkel . . . . Minkel obtained the signature of the Celluras to the release and authorization and delivered it to respondent but the respondent still did not pay over the monies.

(g) The respondent wrote to his client Peters on November 29, 1977 advising his client that he would disburse the escrow rent funds to the Celluras or their assign-ee within ten days from the date of the letter if he did not hear from his client. The respondent in his answer admitted the allegations of paragraph 10 of the complaint in which the complainant alleged that the respondent has failed and refused to deliver the funds or account for them.

(h) The chairman of the Grievance Committee and a complainant’s investigator confronted the respondent with respect to the fact that the funds had not been placed in his trust account. The respondent indicated that the funds had not been placed in his trust account pursuant to his client’s instructions and that he had the money at home. The respondent refused to permit the complainant’s investigator to accompany the respondent to his home to verify his holding said money on behalf of his client.

(i) In addition and unrelated to the foregoing, the respondent issued a worthless check to the Clerk of the Circuit Court for Brevard County, Florida on July 1, 1978 in the amount of $107.00

(j) The respondent is under suspension from the practice of law for a period of twelve (12) months pursuant to this court’s opinion in The Florida Bar v. Davis, 361 So.2d 159 (Fla.1978).

The record further reflects that the respondent failed to appear personally or through counsel at this hearing because of an asserted conflict, but no request was made for a continuance.

The referee expressly found:

The respondent is guilty of unethical conduct by reason of his issuing a worthless trust account cheek to the Clerk of the Circuit Court.
Although the undersigned did not have the benefit of the testimony of the respondent’s client with respect to the client’s instructions that said monies should not be placed in the respondent’s trust account, and only the self-serving statements of the respondent, it is conceivable that the respondent’s client did not want the money placed in a checking account. However, at such time as the respondent was called upon by the Florida Bar to account for his client’s money, it became incumbent upon the respondent to demonstrate that he was in fact holding the money as instructed by his client. If the respondent had a serious doubt as to who was entitled to the funds that he was holding for his client, he could have initiated an interpleader action. He wrote to his client and advised him that he was going to pay the funds over to the Celluras or their assignee if he didn’t hear from his client and further prepared a written release for this purpose. He admits that he has not paid over the money and has further admitted that he did not intend to initiate an interpleader action, and thus one can only conclude that he does not have the money and has diverted the same for his own use.

The referee recommended:

[T]hat the respondent be disbarred from the practice of law. I find that the respondent’s conduct involves moral turpitude. He has used funds that may originally have been his clients but which he subsequently concluded belonged to a third party since he advised his client that he would disburse the same to the third party. He told the Florida Bar’s investigator that his client had advised him not to put the money into a trust account yet in the respondent’s sworn answer to the complaint, the respondent says “that the funds were specifically converted to cash to facilitate expected immediate disbursal for expenses which required good cash funds, but the amounts were uncertain and which would not tolerate bank accounting delays (Paragraph 7 of Answer).”

Subsequent to the receipt by this Court of the referee’s report and the respondent Davis’ filing a petition for review and supporting briefs, Davis filed a petition to resign in lieu of discipline. The Florida Bar approved this course of action and recommended that this Court accept Mr. Davis’ petition with the following conditions:

1. That Mr. Davis be required to submit to and pass the ethics portion of The Florida Bar exam prior to readmission to The Florida Bar.
2. That Mr. Davis satisfy any Clients’ Security Fund claims paid as a result of his misappropriations in this or any other case.
3. That the facts giving rise to Mr. Davis’ resignation in lieu of discipline be included in an appropriate opinion in the Southern Reporter.

Respondent Davis filed a response objecting to the conditions and asserting that he should automatically be reinstated upon application. Under the circumstances, we reject the petition to resign and have considered this cause on the petition for review and the briefs submitted by each party. We accept and affirm the referee’s findings of fact and recommendation of disbarment from the practice of law. We are not unmindful that disbarment is an extreme penalty and should be imposed only in those cases where rehabilitation is improbable. In The Florida Bar v. Davis, 361 So.2d 159, 162 (Fla.1978), this same respondent was found guilty of violating Disciplinary Rules 1-102(A)(4)(6) and 9-102(A). These violations included: conviction of misdemeanor for issuing worthless checks; failing to satisfy a judgment on a promissory note given to an employee; obtaining an unsecured loan from a client and failing to repay the loan; and commingling of personal funds in his client trust account. This Court imposed suspension from the practice of law for twelve (12) months as discipline for these violations.

Given the total circumstances of this case, we find rehabilitation to be improbable and disbarment the only appropriate discipline.

Costs in the amount of $208.40 are hereby taxed against respondent.

It is so ordered.

ENGLAND, C. J., and OVERTON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.