text:
    Watts R. WEBB, M.D. v. Frank A. HUGHES.
    No. 12208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearings Denied Feb. 19, 1982.
    Dan A. Smetherman, Landwehr, Hof & Smetherman, New Orleans, for defendant-appellant.
    Linda S. A. Burke, Sessions, Fishman, Rosenson, Boisfontaine & -Nathan, New Orleans, for plaintiff-appellee.
    Before SCHOTT, GARRISON and KLEES, JJ.
   SCHOTT, Judge.

This is an action by purchaser, Dr. Watts R. Webb, for a reduction in the price of a house he bought from seller, Frank A. Hughes, based upon allegations that the roof was defective at the time of the sale. Defendant-seller has appealed from a judgment in plaintiff’s favor for $6,357.00. The issues are whether plaintiff carried his burden of proving that the defects existed before the sale. LSA C.C. Art. 2530, and, if so whether plaintiff is entitled to the amount awarded, especially considering that the repair work done by plaintiff improved the quality of the roof bargained for when the Webbs bought the house.

On January 31, 1977, the Webbs agreed to purchase defendant’s house at 21 Park Island Drive in New Orleans for $145,-000.00. The sale was conditioned upon a roof inspection at defendant’s cost by an expert selected by plaintiff. On February 8 this inspection was carried out by Manuel Galland of Bruner-Mallet Roofing Company. He made the following report:

“Roof inspection made, the following found, there are no leaks, new roof was installed over pitch roof and is good for 25 yrs. Lower built up roof was installed on left center, other roofs are in fair condition and are good for approximately 10 to 12 yrs. These roofs seem to be approximately 8 yrs. old. I could not find anything wrong, at this time gutters need to be cleaned and painted, cost for cleaning and painting inside of all gutters $81.00.”

The act of sale was passed on May 31 and the Webbs moved in on June 3. According to them, it rained for the first time about two weeks after they moved in and they discovered extensive leaking in the carport, utility room and storage room of the house. They had some temporary repairs made, and in August engaged Louis Eichhorn to inspect the roof. He testified that the house was leaking and submitted a proposal to repair the roof for $5500.00. Plaintiff also obtained a proposal from Republic Roofing and Waterproofing Co., Inc., to repair the roof for $5,954.00, and in June, 1978, he had the roof repaired by Charles R. Madona, Jr., Inc. for $6,357.00.

Defendant’s first specification of error is that the plaintiff failed to carry his burden of proving that a defect existed in the roof before the act of sale. He contends that plaintiff’s evidence was insufficient considering the testimony of Galland, who inspected the house in February, 1977, the testimony of defendant and his wife that there were no leaks when they moved out at the end of May just before the act of sale, that of Claudette Long, a friend of defendant and his wife, that she was in their home many times and was aware of no leaks, and that of Frank Ferrara, a roofer who inspected the house for defendant in January, 1978.

The Webbs testified that the first time it rained, two weeks after they moved in, the roof leaked extensively over the carport, storage room and utility room, and this condition continued despite some patch work on the roof. The entrance to the house was through the leaking carport and Mrs. Webb stated that the leaking was so bad in the storage room that her belongings stored there got soaked, and she used a large trash pail to collect the water in that area. This testimony was corroborated by that of a domestic employee who worked for her in September and by the mail carrier who regularly came to the front door under the carport and who testified that one standing at the front door would get wet when it was raining. He also testified that it was leaking before the Webbs moved into the house. Louis Eichhorn, who inspected the house and submitted a bid in August, 1977, stated that the leaking and the condition of the roof which caused the leaking had existed for a long time prior to his inspection. He explained that the flat, built-up gravel roof over the carport and storage room was the problem area where two inches of water was standing, and the flashing was decayed with the result that water would enter the roof vents when it reached a certain level. He also found that the guttering around this area of the roof was leaking. Eichhorn testified that the Webbs told him they had leaking two weeks after they moved into the house.

The testimony of the Webbs and the Hughes was directly in conflict. The trial judge resolved this conflict in favor of plaintiff, and no basis exists for us to substitute our judgment for his on this question of credibility. Likewise, the trial judge’s resolution of the conflict between plaintiff’s witnesses, the maid and the mail carrier, as opposed to defendant’s witness, the friend and neighbor, will not be disturbed on appeal. The trial judge must have accorded greater weight to the testimony of Eichhorn as opposed to Galland and the record supports this conclusion. The best that can be said for Galland’s testimony is that he found no leaks in February, some three months prior to the time when plaintiff found their house leaking. On the other hand, Eichhorn testified without equivocation that there were leaks in August and that this condition had existed for a long time. Once the trial judge believed the Webbs that the house leaked so extensively two weeks after they took title the trial court could infer that this condition existed at the time of the sale. We decline to disturb this finding on the basis of Canter v. Koehring, 283 So.2d 716 (1973) and Arceneaux v. Domingue, 365 So.2d 1330 (La.1975).

Defendant specifies error with regard to the amount of the judgment on three grounds:

1) The new roof installed by plaintiff was qualitatively better than the roof bargained for when the house was purchased;

2) Plaintiff was unjustly enriched when he got the price of a new roof to replace an old depreciated roof;

3) The award exceeded the amount plaintiff prayed for in his petition.

Repair work was done on the roof by Charles R. Madona, Jr., Inc. Mrs. Madona testified that her company inspected the premises and submitted a bid in June, 1978. She testified that there were several problems on the roof. The bottoms of 8 skylights in the pitched roof were imbedded in tar which had been applied to the flat roofs in the past. The gutters were in bad condition and were constructed in such a way that they would not carry the water away from the roof. Madona’s work included building up the 8 skylights, installation of asbestos base flashing to replace the metal flashing which was completely deteriorated, the extension of the overhang and installation of new gutters and replacement of rotten decking and other wooden components with celeure lumber. The work Ma-dona did encompassed not only the flat roof over the carport, storage room and utility room but the other two flat roofs on the house as well.

From Mrs. Madona’s testimony it seems that her work did encompass more than what was necessary to repair the leaks in the roof. In connection with one aspect of her testimony regarding the redesign of the gutters and the roof around them, Eichhorn had testified that the original design of the gutters was “crazy.” Thus, this aspect of Madona’s work went beyond correction of a defect but provided the Webbs with something better than they bargained for when they bought the house originally. Furthermore, complaints of leaking were confined to one part of the house under a specific roof and Madona’s work included the replacement of two other roofs. It does seem that the end product was well beyond what was necessary to correct the defects proved as existing at the time of the sale. The same must be said for the work done on the 8 skylight frames on the pitched roof. Finally, the record suggests that Madona installed material superior in quality to that which was replaced.

Other considerations seem to suggest that plaintiff ended up with more than they bargained for when they bought the house from defendant. Plaintiff’s witness, the mail man, testified that this house was built in 1961, and Galland estimated that the flat roofs had a lifetime of 10 to 12 years. This would be generally consistent with the assumption that a new roof has a 25 year lifetime. Thus, as a result of the work done by Madona the house had a roof good for 25 years, replacing one which had depreciated over a 16-year period. Furthermore, there is no explanation as to why this roof was not repaired shortly after plaintiff moved in but it seems clear that the price charged by Madona to do this work a year later was greater because of inflation alone. Finally, the longer plaintiff waited to do this work the more deterioration took place, especially in the wooden components of the roof.

This case is similar to Verlander v. Hoffer, 351 So.2d 229 (La.App. 4th Cir. 1977) writs refused, 353 So.2d 1037, where the court found that an award to repair a leaking roof properly took into account the age of the roof as known to the purchaser and accomplished “a result that does justice to all parties.” We recognize that there are factual distinctions between this case and Verlander, and that there were other reasons in Verlander why the trial judge had reduced the award from the amount which the purchasers actually spent to make the repairs, but we are convinced that a simple affirmation of the judgment before us would not accomplish justice for both parties and would to some extent unjustly enrich plaintiff.

We are confronted, however, with some difficulty in deciding the proper amount due plaintiff. Madona’s bid to do the work was $6,000.00 and she charged an extra $357.00 for replacement materials. But her bid was not itemized and there was no testimony itemizing her bid. However, we have the benefit of Eichhorn’s estimate which was made in closer proximity to the time of the sale and did not contemplate Madona’s redesign. Thus, we have concluded that the $5,500.00 bid by Eichhorn would more properly and justly compensate plaintiff than the amount paid Madona. In reaching this conclusion we have considered the possibility of remanding the case for additional evidence as to the proper amount due plaintiff but considering the costs which would be incurred by the parties in the adjudication of the matter we have concluded that a final judgment reducing the award to the amount of Eichhorn’s bill is just, legal and proper upon the record before us. C.C.P. Art. 2164.

Because of the conclusion we have reached it is unnecessary to consider defendant’s argument that the amount of the judgment exceeded the amount prayed for by plaintiff in his petition.

Accordingly, the judgment appealed from is affirmed but amended to reduce the amount of the judgment to $5,500.00 with legal interest from date of judicial demand until paid. The trial court costs are assessed against defendant. Each party will bear his own costs in this court.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: CHEHARDY, Judge.

license: Public Domain

text:
    Ignacio C. VILLANUEVA, Jr. v. Angela Villanueva SCHWALL.
    No. 12242.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 12, 1982.
    Rehearing Denied Feb. 19, 1982.

      Reed & Reed, Bruce G. Reed, New Orleans, for plaintiff-appellant.
    Satterlee, Mestayer & Freeman, A. D. Freeman, New Orleans, for defendant-ap-pellee.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   CHEHARDY, Judge.

Plaintiffs Ignacio C. Villanueva, Jr., George L. Villanueva, Norma Villanueva Lumberg, Althea E. Villanueva, and Dolores Villanueva Turgeau appeal a district court judgment in favor of defendant Angela Villanueva, wife of Robert E. Schwall, maintaining the defendant’s exception of res judicata and dismissing plaintiffs’ suit at their costs.

Plaintiffs argue by brief that under Articles 115 and 116 of the Code of Practice (in effect at the time of the succession of the plaintiffs’ father, which judgment they now seek to annul) the plaintiffs, who were minors at that time, were never properly made parties to the proceedings because an attorney was not appointed to represent them.

A review of those articles, however, reveals that the appointment of an attorney for defendants of a suit who are minors is only required “[i]f the minor * * * has no tutor * * *.” 1870 Code of Practice art. 116.

The succession of the father of plaintiffs herein, which has been made part of the record in the present case, reveals the plaintiffs’ mother was appointed tutrix of the minor defendants and subsequently answered the petition on their behalf. Accordingly, we find no merit to plaintiffs’ argument in this regard in the present case, nor do we find the fact that the mother was appointed tutrix of these children, only after the suit was filed, ground for annulment of that judgment. A review of the relevant Code of Practice articles does not reveal that a tutrix or tutor must be appointed prior to the filing of any suit in order to dispense with the requirement of appointing an attorney to represent such minors.

In Paragraph 7 of the plaintiffs’ supplemental and amending petition, they ask, alternatively, that the court “should annul the aforesaid Judgment rendered in the Succession of Ignacio C. Villanueva, Sr., to the end that your petitioners be duly recognized and sent and placed into possession of an undivided one-eighth (%) interest each in the property of the father.” The prayer of the petition also asks that the court “annul the Judgment of possession previously, rendered in the matter of the Succession of Ignacio C. Villanueva, Sr. * # sf: ii

In the case of Powell v. Treat, 265 So.2d 678, 679 (La.App. 2d Cir. 1972), the court said:

“ * * * In a long line of cases beginning with Edwards v. Edwards, 29 La.Ann. 597 (1877), the courts of this State have consistently held that in a suit to annul the legal effect of a prior judgment, such judgment cannot be successfully urged as res judicata to itself. The court in the Edwards case (29 La.Ann. at 599) observed:
‘.. . Otherwise, the action of nullity would be a farce and a mockery, since the existence of the judgment attacked (which alone gives the right and the occasion to the action of nullity) would be itself a bar to proceedings to annul it. In other words, the same fact, to wit: the existence of the judgment, would be at one and the same time the foundation and destruction of a right of action.’

See, also:

Holbrook v. Holbrook, 32 La.Ann. 13 (1880);
Morrisey v. Vazquez, 168 La. 433, 122 So. 281 (1929);
Lirette v. Lirette, 176 La. 368, 145 So. 773 (1933);
Cook v. Morgan, 142 So. 279 (La.App., 2d Cir. 1932);
State ex rel. Sunseri v. Thoman, 154 So.2d 480 (La.App., 1st Cir. 1963);
Grant v. Securities Finance Company, 173 So.2d 356 (La.App., 1st Cir. 1965).
“Thus, as pointed out in Grant v. Securities Finance Company, supra, ‘It is axiomatic that a judgment cannot be res judicata to a suit to annul it.’ (173 So.2d at p. 357.)”

For these reasons, therefore, the plea of res judicata was improperly sustained in the district court.

This court, however, has the authority to render any judgment which is just, legal and proper upon the record on appeal, regardless of whether a particular legal point or theory is made. LSA-C.C.P. art. 2164 and Givens v. Richland-Morris Agency, Inc., 369 So.2d 1184 (La.App. 2d Cir. 1979).

Plaintiffs argue in the present suit that they are capable of inheriting in the succession of their father which was filed in the district court on June 21, 1960, citing Succession of Brown, 388 So.2d 1151 (La.1980). In Brown, the Supreme Court, relying on Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977), declared LSA-C.C. art. 919 unconstitutional because it prohibits acknowledged natural children from inheriting intestate from their natural father when he had a surviving wife.

This court, however, expressly declared in Succession of Ross, 397 So.2d 830 (La.App. 4th Cir. 1981), at 830-831:

“In Lovell v. Lovell, 378 So.2d 418 (La.1979), the Supreme Court addressed itself to the issue of when a decision which declares an article of the Louisiana Civil Code to be unconstitutional should be given retroactive effect and stated at pages 421-422:

‘In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretro-actively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).’
“The court in Lovell, upon consideration of these factors, concluded that its decision declaring LSA-C.C. art. 160 (as it read prior to the 1979 amendment making it gender-neutral) unconstitutional should not be applied retroactively. In the present case, the declaration of the unconstitutionality of LSA-C.C. art. 919 in Succession of Brown, supra, certainly establishes a new precedent of law in that an acknowledged illegitimate can now maintain intestate succession rights to his father’s estate even if other relatives exist. Furthermore, a prior decision of the United States Supreme Court specifically held that LSA-C.C. art. 919 was constitutional, Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). Certainly in the present case, as in Lovell, substantial inequity would result if all prior judgments of possession which relied on the substantive law of LSA-C.C. art. 919 were declared invalid, and such a holding would engender new litigation in each case where there had been such a justified reliance. As noted in Lovell, where such a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).
“Accordingly, although the Supreme Court did not address itself to the issue of the retroactive application of its declaration of the unconstitutionality of LSA-C.C. art. 919 in Succession of Brown, supra, we hold that that declaration should only be applied prospectively from “the September 3, 1980 decision.”

The record reveals the judgment which is sought to be annulled by plaintiffs in the case entitled “Succession of Ignacio C. Vil-lanueva,” No. 56,982 on the docket of the Twenty-fourth Judicial District Court for the Parish of Jefferson, was rendered on June 29, 1960. Accordingly, the exception of no cause of action urged by the defendant in the present case at the trial court level should have been sustained. Succession of Ross, supra; LSA-C.C.P. art. 2164.

For the reasons assigned, therefore, the judgment of the district court dismissing the plaintiffs’ suit at their costs is affirmed.

AFFIRMED.


author: ROY NOBLE LEE, Justice,

text:
    PEOPLES BANK & TRUST COMPANY v. COMFORT ENGINEERING COMPANY, INC.
    No. 53,164.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Smith, Downs, Ross, Trapp & Coleman, Wendell H. Trapp, Jr., Corinth, for appellant.
    Sparks & Colburn, David R. Sparks, Tu-pelo, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   ROY NOBLE LEE, Justice,

for the court:

Comfort Engineering Company, Inc. filed suit against Peoples Bank & Trust Company in the Circuit Court of Lee County, Honorable Neal Biggers, presiding, seeking possession of four air conditioning units valued at approximately $86,000. The circuit judge, sitting without a jury, entered judgment in favor of Comfort Engineering Company, Inc., and Peoples Bank & Trust Company has appealed to this Court.

The sole assignment of error presents the question of whether or not the lower court erred in failing to recognize that Peoples Bank & Trust Company held a valid perfected security interest superior to the interest of Comfort Engineering Company, Inc., and erred in declining to award possession of the air conditioning equipment to Peoples Bank & Trust Company.

On June 27, 1975, Fashions by Wisz, Inc. (Fashions), acquired certain property in the city of Tupélo, Mississippi, for the purpose of operating a sewing plant. On December 19,1975, appellant extended credit to Fashions in the sum of $150,000 evidenced by a promissory note in such amount. The promissory note was secured by a security interest in certain personal property generally described as sewing equipment, electric wiring, carpet, light fixtures, air conditioning units and duct work. The standard security agreement was executed by Fashions in favor of appellant and a 12-page Uniform Commercial Code Financing Statement (UCC-1) was executed in duplicate by Fashions in favor of appellant. The Uniform Commercial Code Financing Statement was filed forthwith in the Chancery Clerk’s Office of Lee County, Mississippi, on December 28,1975, and in the Office of the Secretary of State of the State of Mississippi on December 81, 1975.

On January 28, 1976, Fashions contacted appellant for further credit and appellant extended Fashions an additional $150,000. Fashions executed a second promissory note payable to appellant in said amount with an indication upon the said note that it constituted an additional advance and was secured by the same collateral that secured the first promissory note. On August 9, 1976, the two $150,000 promissory notes from Fashions to appellant, aggregating $300,000, were consolidated and the indebt-ednesses were renewed.

On May 3, 1976, appellee sold two air conditioning units to Fashions for the sum of $45,544.85 and on July 1, 1976, appellee sold two additional air conditioning units to Fashions for the sum of $40,666. Two conditional sales contracts were executed by Fashions in favor of appellee covering the respective transactions. The contracts were subsequently filed with the Lee County Chancery Clerk on August 19, 1977.

Fashions became involved in deep financial trouble, defaulted upon its debts and filed a petition in bankruptcy. There were then in existence (1) a security agreement and Uniform Commercial Code Financing Statement (UCC-1) from Fashions to the appellant, dated December 19, 1975, and recorded in the Office of the Chancery Clerk of Lee County, Mississippi, and in the Office of the Secretary of State of the State of Mississippi, which contained the following statement of collateral: “air conditioning units and duet work,” (2) conditional sales contract signed by Fashions dated May 3, 1976, which was filed in the Office of the Lee County Chancery Clerk on August 19, 1977, pertaining to two air conditioning units and conditional sales contract executed by Fashions in favor of ap-pellee dated July 1,1976, filed for record in the Lee County Chancery Clerk’s Office on August 19, 1977, pertaining to the additional two air conditioning units. On October 2, 1979, appellee filed an action in replevin, claiming a security interest in the four air conditioning units mentioned above and the Lee County Circuit Court awarded possession of the four units to appellee.

(a) Security agreement. The security agreement, upon which appellant relies, contained an after-acquired property clause. Language in the instrument reads as follows:

It being intended to convey whether correctly described or not, all miscellaneous sewing equipment, etc. as listed on supplemental sheets attached, as of this date and to be hereafter acquired and located in our place of business at 120 Franklin Street, Tupelo, Mississippi, together with all equipment, parts, accesso-ríes, attachments and replacements thereof, and additions thereto, and all other goods of the same class, whether now owned or hereafter acquired by debtor and the proceeds thereof (hereinafter collectively called ‘collateral’) to secure (1) payment of a note dated various dates executed and delivered by debtor to bank in the sum of $300,000.00 payable as to principal and interest as therein provided; . . . (emphasis added.)

The attachments incorporated into the security agreement and the dual Uniform Commercial Code Financing Statement (UCC-1), executed by Fashions, contained the following reference and statement of collateral:

“Air conditioning units and duct work.”

The Uniform Commercial Code Financing Statement also contained the following provision:

Miscellaneous equipment used in our business known as Fashions by Wisz, Inc. located at 120 Franklin, Tupelo, Ms. and more particularly described as follows: As of this date and to be hereafter acquired.

Mississippi Code Annotated section 75-9-312(5)(a) (1972) governs the priority between conflicting security interests in the same collateral as follows:

(5) In all cases not governed by other rules stated in this section (including cases of purchase money security interest which do not qualify for the special priorities set forth in subsections (3) and (4) of this section), priority between conflicting security interests in the same collateral shall be determined according to the following rules:
(a) Conflicting security interests rank according to priority in time of filing or perfection. Priority dates from the time the security interest is first perfected, whichever is earlier, provided that there is no period thereafter when there is neither filing nor perfection.

The parties agree that the facts of this case are largely uncontradicted and that the decision here is one upon the law as applied to those facts. It is undisputed that appellant perfected its security interest in the air conditioning units, according to law. Likewise, it is undisputed that appellee wholly failed to perfect its security interest in said property.

(b) After-acquired property clause. Mississippi Code Annotated section 75-9-204 (1972) provides the following with reference to after acquired property.

(1) Except as provided in subsection (2), a security agreement may provide that any or all obligations covered by the security agreement are to be secured by after-acquired collateral.
(2) No security interest attaches under an after-acquired property clause to consumer goods other than accessions (section 75-9-314) when given as additional security unless the debtor acquires rights in them within ten (10) days after the secured party gives value.
(3) Obligations covered by a security agreement may include future advances or other value whether or not the advances or value are given pursuant to commitment (section 75-9-105(1)).

Thus, after-acquired property clauses are valid under Mississippi law. The financing statements should reasonably describe the collateral to be secured, although further inquiry beyond the financing statement may be necessary to examine the after-acquired property to disclose the complete status of the transaction. National Cash Register Co. v. Firestone & Co., 346 Mass. 255, 191 N.E.2d 471 (1963).

Official comments to the Uniform Commercial Code insofar as they relate to after-acquired property, follows:

2. Subsections (1) and (3) read together make clear that a security interest arising by virtue of an after-acquired property clause has equal status with a security interest in collateral in which the debtor has rights at the time value is given under the security agreement.

69 Am.Jur.2d, Secured Transactions, section 298 (1973), states the general law on after-acquired property in a security agreement as follows.

Many secured transactions contemplate that the collateral will include both the debtor’s existing assets and also assets thereafter acquired by him in the operation of his business, such as inventory, accounts, equipment and other collateral. Article 9 of the Uniform Commercial Code generally validates any provision in a security agreement covering after-acquired property even though the inclusion of such property results in what is sometimes termed a “floating lien.”
Accordingly, where it is desired to cover after-acquired property in a security agreement, such property should be included as part of the collateral. However, a mere reference to the after-acquired property in general terms is sufficient, such as a statement including within the security interest all collateral of the kind covered that may be acquired by the debtor at any time.

(c) Purchase money secured party. Appellee contends that it is entitled to priority and equitable consideration by the Court for the reason that appellee attained the status of a purchase money secured party. Admittedly, appellee sold the air conditioning units directly to Fashions, installed them at Fashions, and was not paid for the sales. However, in order for appel-lee, or any other party in its position, to receive such consideration, it must act and comply with the statute. Mississippi Code Annotated section 75-9-312(4) (1972) provides the action to be taken by a party to obtain the benefit of a purchase money security interest:

(4) A purchase money security interest in collateral other than inventory has priority over a conflicting security interest in the same collateral if the purchase money security interest is perfected at the time the debtor receives possession of the collateral or within ten (10) days thereafter.

Since appellee wholly failed to comply with the above provision, it failed to protect itself and cannot now claim the benefit of the section.

In Mammoth Cave Production Credit Association v. York, 429 S.W.2d 26 (Ky.1968), the Court said:

They therefore argue that principles of estoppel should be indulged in to prevent the unjust result of having a subsequently filed security agreement take priority over their reserved security interests.
* * * * * *
Therefore, we must reject this plea. Once a vendor fails to take advantage of the special provisions set out in the code for his protection, he is placed on the same footing as any other secured party. (429 S.W.2d at 28)

(d) Conditional sales contract. Ap-pellee suggests that, since it never surrendered title to the air conditioning units, it should be entitled to some consideration therefor. Mississippi Code Annotated section 75-9-202 (1972) states the following:

Each provision of this chapter with regard to rights, obligations and remedies applies whether title to collateral is in the secured party or in the debtor.

In O’Dell v. Kunkel’s, Inc., 581 P.2d 878 (Okl.1978), the Oklahoma Court stated:

Devices whereby title is reserved in the seller-creditor for a period of time following possession by the debtor are treated under Article 9 of the UCC as though title had been transferred to the debtor and the seller-creditor had retained only a security interest in the goods.
(581 P.2d at 881)

See also James Talcott, Inc. v. Franklin National Bank of Minneapolis, 292 Minn. 277, 194 N.W.2d 775 (1972).

(e) New value. Appellee argues that for an interest in after-acquired property to overcome the claim that security was taken for an antecedent- debt, the secured party, at the inception of the new transactions, must have given new value in some form and the after-acquired property must have come in the ordinary course of business or as an acquisition that was made under a contract of purchase entered into, pursuant to the security agreement, within a reasonable time after the giving of new value, and cites Sears, Roebuck & Co. v. Detroit Federal Savings & Loan Ass’n., 79 Mich.App. 378, 262 N.W.2d 831 (1978). Ap-pellee also contends that the collateral was insufficiently described in the executed security agreement, citing In Re Laminated Veneers Co., Inc., 471 F.2d 1124 (2d Cir. 1973), and Mammoth Cave Production Credit Ass’n v. York, 429 S.W.2d 26 (Ky.1968).

We are not persuaded by that argument and think the reasoning in Barth Brothers v. Billings, 68 Wis.2d 80, 227 N.W.2d 673 (1975), is sound, where the Court said:

The argument by Barth is that the security interest is invalid in after-acquired property because no new value was given. Sec. 409.204(1), Stats., provides that a security interest cannot attach until (1) there is an agreement; (2) value is given; and (3) the debtor has rights in the collateral. Sec. 401.201(44), Stats., provides in pertinent part:
“Except as otherwise provided . . a person gives ‘value’ for rights if he acquires them:
“(b) As security for or in total or partial satisfaction of a pre-existing claim
Therefore, a security interest may be given for a pre-existing debt. In White and Summers, Handbook of the Law Under the Uniform Commercial Code (1972), p. 792, sec. 23-4, the authors discussed this issue:
“The initial harvest of Article Nine cases under this section includes few surprises. Despite the plain language of 1-201(44)(b), several parties have argued that a creditor does not give value if he takes his security interest to secure a pre-existing claim against the debtor. The courts have tossed these parties out on their ears, as well they ought.”
This section does not invalidate security interests in after-acquired property where a pre-existing claim is the value given, however. Rather, this section “... is of importance principally in insolvency proceedings under the federal Bankruptcy Act or state statutes which make certain transfers for antecedent debt voidable preferences.” Uniform Commercial Code, (UCC) sec. 9-108, Comment.
(227 N.W.2d at 676, 677)

Discussing the subject, in Sears, Roebuck & Co. v. Detroit Federal Savings & Loan Ass’n., 79 Mich.App. 378, 262 N.W.2d 831 (1978), the Court stated:

Sections 9108 and 9204 of the Uniform Commercial Code (citations omitted) give specific rights to a creditor to secure a debt with property not owned by the debtor at the time that the parties enter into a security agreement. Article 9 of the code generally validates such after-acquired property interests, although they may be subjected to subsequent purchase money security interests properly perfected under 9312(3) and 9312(4).
The purchase of inventory such as refrigerators, stoves, vents, disposals and the like was contemplated by the defendant bank and provided for in its properly filed security agreement. The bank gave new value at the time of the original transaction and the after-acquired property came in the ordinary course of the debtor’s business. Therefore, the after-acquired property clause gave the defendant bank a valid security interest in the personal property acquired by Hicks when Hicks received delivery of the property from Sears, Roebuck and Company, (emphasis added.)
‡ sjc Hi sfc s{¡ :Js
The plaintiff’s claim must fail because it failed to protect its purchase money security interest, although it properly perfected its rights.
(262 N.W.2d at 834)

We are of the opinion that appellant had a valid perfected security interest in the after-acquired air conditioning units and that appellee failed to perfect its purchase money security interest in said property. The lower court, therefore, erred in entering judgment for appellee, and the same is reversed and judgment is rendered here for appellant.

REVERSED AND RENDERED.

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

      . In Re: Hammons, 438 F.Supp. 1143 (S.D.Miss.1977). In Re: King-Porter Co., 446 F.2d 722 (5th Cir. 1971).


text:
    Thomas P. SMITH, Individually and as Natural Tutor of Tommy Earl Smith, Regina Smith Jackson and Lonnie Jean Smith v. Francis T. ZACHARY & George E. Gillespie, Jr., d/b/a Zachary & Gillespie, A Professional Partnership and Joseph R. King.
    No. 53086.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Luckett, Luckett, Luckett & Thompson, W. 0. Luckett, Jr., Clarksdale, for appellants.
    Aultman & Aultman, Jon Mark Weathers, George E. Dent, Hattiesburg, for appel-lees.
   o Appeal from Circuit Court, Forrest County; Jack B. Weldy, Judge.

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

AFFIRMED.


text:
    Alice B. HOLDER v. William D. HOLDER.
    No. 53003.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Richard W. Hamilton, Pascagoula, for appellant.
    Toxey Hall Smith, Jr., Biloxi, for appel-lee.
   Appeal from Chancery Court, Jackson County; Glenn Barlow, Chancellor.

Before SMITH, P. J., and ROY NOBLE LEE, and BOWLING, JJ.

AFFIRMED IN PART, REVERSED AND-RENDERED IN PART.

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

DAN M. LEE, J., took no part.


text:
    GARAN, INC. and Pacific Employers Insurance Company v. Annie M. GRAY.
    No. 53185.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
   Appeal from Circuit Court, Neshoba County; Marcus D. Gordon, Judge.

Riddick & Carpenter, B. L. Riddick, Jackson, for appellants.

Bobby G. O’Barr, Biloxi, for appellee.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    Daniel RAYBOURN, d/b/a Discount Plywoods and Beverly Jones Craft, et al. v. CREDIT CENTER OF LAUREL.
    No. 53210.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Butler & Brown, William C. Butler, James M. Brown, Laurel, for appellants.
    Thomas Tucker Buchanan, Billie Jean Graham, Laurel, for appellee.
   Appeal from Chancery Court, Jones County; J. Shannon Clark, Chancellor.

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

AFFIRMED.


text:
    John BEZZARD v. Betty DYESS.
    No. 53223.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    LaBarre & LaBarre, Oscar P. LaBarre, Vicksburg, for appellant.
    W. M. Conerly, Vicksburg, for appellee.
   Appeal from Chancery Court, Warren County; Nat W. Bullard, Chancellor.

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

AFFIRMED.


text:
    Bennie Lee WILLIAMS v. STATE of Mississippi.
    No. 53201.
    Supreme Court of Mississippi.
    Jan. 20, 1982.
    Moore, Royals & Taylor, Robert H. Taylor, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

PATTERSON, C. J., SMITH, P. J., and BROOM, ROY NOBLE LEE and BOWLING, JJ., concur.

DAN M. LEE, J., took no part.


author: SUGG, Presiding Justice, for the Court:

text:
    Wesley Howard HORTON v. STATE of Mississippi.
    No. 52998.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    R. Charles Robb, Vicksburg, for appellant.
    Bill Allain, Atty. Gen. by Carolyn B. Mills, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before SUGG, WALKER and HAWKINS, JJ.
   SUGG, Presiding Justice, for the Court:

Appellant, was indicted by a grand jury in Monroe County on two counts. Count one charged appellant with possession of more than one ounce but less than one kilogram of marihuana and count two with possession of phencyclidine. Appellant was convicted on both counts and sentenced to five years imprisonment on each count to be served concurrently. We affirm the conviction on both counts but reverse and remand for imposition of a proper sentence.

On December 6, 1979, Robert Sanderson and Sammy Neal, policemen for the City of Amory, were working the 9:30 p. m. to 4:30 a. m. shift. At approximately 3:20 a. m. Sanderson observed an automobile with no license plate leaving a convenience store. He advised Neal that he was going to stop the automobile and requested assistance. After stopping the automobile Sanderson asked the appellant, who was the driver, for his driver’s license and the registration papers on the automobile. As a part of the investigatory stop Sanderson checked the ownership of the vehicle by radio. After satisfying himself that the driver’s license and the registration of the vehicle were in order, Sanderson was about to instruct the driver to proceed but directed his flashlight into the backseat of the automobile a second time because he had observed the occupants of the car moving about inside the car while he was running the radio check. When Sanderson looked on the backseat of the car for a second time, he observed three bottles of beer lying on the seat which were not there when he looked into the backseat of the automobile immediately after the stop. Sanderson then advised the appellant that possession of beer was illegal in Amory, asked the driver to step outside the automobile, and placed him under arrest for the possession of beer. He then noticed that appellant was wearing a belt with the design of a marihuana leaf on the buckle with a small pipe attached to the back of the buckle. He retrieved the pipe and detected the odor of burned marihuana in the pipe. He then requested the passenger of the automobile to produce some identification. The passenger was wearing a T-shirt and stated he would have to get his license out of another shirt which was lying on the backseat. When the passenger picked up the shirt from the backseat, a syringe fell out of one of the pockets and the passenger made an attempt to hide the syringe. Sanderson then requested Officer Neal, who had arrived, to arrest the passenger for the possession of paraphernalia. After placing both appellant and the passenger in separate patrol cars, a search was conducted of the passenger compartment of the automobile.

When Sanderson opened the console located between the driver and the passenger seats, he found two bags of a green substance which he believed to be marihuana and a white powdery substance wrapped in aluminum foil which he believed to be cocaine, but upon analysis was found to contain phencyclidine. Appellant contends that the warrantless search of his automobile was invalid and the evidence seized during the search should be suppressed.

Appellant had been lawfully arrested, so the question is whether the search of the passenger compartment without first securing a search warrant violated appellant’s Fourth Amendment rights. This question was answered in New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). The Belton court noted that a single familiar standard is essential to guide police officers in the circumstances they are confronted with and that no straightforward rule had emerged from the litigated cases involving the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants.

The Court then established a simple rule which police officers may apply.

In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arres-tee, so also will containers in it be within his reach. United States v. Robinson, supra; Draper v. United States, 358 U.S. 307, 3 L.Ed.2d 327, 79 S.Ct. 329. Such a container may, of course, be searched whether it is open or closed, since the justification for the search is not that the arrestee has no privacy interest in the container, but that the lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. (- U.S. -, 101 S.Ct. 2864, 69 L.Ed.2d at 775)

The United States Supreme Court is to be commended for establishing a “bright line” rule so that police officers may know with certainty the scope of their authority to search a vehicle following a custodial arrest. We therefore hold that the search of the passenger compartment of appellant’s automobile was valid and the evidence seized in the search was admissible.

Appellant also argues that the sentence for possession of marihuana was excessive because the proof showed that less than one ounce of marihuana was seized. Count one of the indictment charged defendant with possession of marihuana “weighing 29.8 grams, being in excess of one ounce.” Page 1-39 of the National Bureau of Standards Handbook 44, specifies the weight of an avoirdupois ounce as 28.349523125 grams and the weight of a troy or apothecaries ounce as 31.1034768 grams. The marihuana possessed by defendant was more than an avoirdupois ounce but less than a troy or apothecaries ounce.

Section 41-29-139(c)(2)(A) Mississippi Code Annotated (1972) provides in part:

One (1) ounce or less of marihuana upon conviction is guilty of an offense punishable by a fine of not less than One Hundred Dollars ($100.00) nor more than Two Hundred Fifty Dollars ($250.00).

An ounce is not defined by the statute, but section 75-27-5 Mississippi Code Annotated (1972) provides:

The system of weights and measures in customary use in the United States and the metric system of weights and measures are jointly recognized, and one or the other of these systems shall be used for all commercial purposes in the State of Mississippi. The definitions of basic units of weights and measures, the tables of weight and measure, and weights and measures equivalents, as published by the National Bureau of Standards, are recognized and shall govern weighing and measuring equipment and transactions in the state.

We are of the opinion that under the statute, the tables of weight and measure as published by the National Bureau of Standards govern. The National Bureau of Standards Handbook provides:

The grain is Vim of the avoirdupois pound and is identical in the avoirdupois, troy, and apothecaries systems. The troy ounce and the apothecaries ounce differ from the avoirdupois ounce but are equal to each other, and equal to 480 grains. The avoirdupois ounce is equal to 437V2 grains. (1-24)
When necessary ... to distinguish the avoirdupois ounce or pound from the troy or apothecaries ounce or pound, the word “avoirdupois” or the abbreviation “avdp” should be used in combination with the name or abbreviation of the avoirdupois unit. (1-32)

We feel certain that the legislature was familiar with the standards published by the National Bureau of Standards, and if it had intended for the avoirdupois ounce to be used it would have distinguished the avoirdupois ounce from the troy or apothecaries ounce.

A troy or apothecaries ounce weighs 31.-1034768 grams, so the 29.8 grams of marihuana possessed by appellant was less than one troy or apothecaries ounce. We therefore vacate the sentence of five years imprisonment imposed by the court under Count 1, remand, and direct the trial court to sentence appellant for possession of less than one ounce of marihuana, such sentence not to exceed that permitted by section 41-29-139(e)(2)(A).

We also note plain error under Supreme Court Rule 6(b) of the excessive sentence under count 2 for the possession of phencyclidine. Section 41-29-139(c)(l) Mississippi Code Annotated (Supp.1978) provides:

(c) It is unlawful for any person knowingly or intentionally to possess any controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this article.
Any person who violates this subsection with respect to:
(1) A controlled substance classified in Schedule I or II, as set out in sections 41-29-115, except marihuana is guilty of a felony and upon conviction may be imprisoned for not more than three (3) years, or fined not more than thirty thousand dollars ($30,000.00) or both;

Phencyclidine is a Schedule I drug and the sentence of five years imprisonment was excessive under the above statute. We therefore vacate the sentence and remand for a proper sentence.

We have carefully noted the other assignments of error but find they do not merit discussion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROPER SENTENCE.

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

      . See Robbias v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981) for search of unopened packages in the luggage compartments of automobiles.


text:
    Archie TEW v. MARSHALL DURBIN, INC.
    No. 52980.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Tullos, Tullos & Tullos, Eugene C. Tullos, Raleigh, for appellant.
    Watkins, Ludlam & Stennis, C. York Craig, Jr., Richard G. Cowart, Jackson, for appellee.
   Appeal from Circuit Court, Smith County; Marcus D. Gordon, Special Judge.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED ON CONDITION OF $1,500 ADDITUR MAKING A JUDGMENT IN PLAINTIFF’S FAVOR FOR THAT AMOUNT; OTHERWISE, REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY.

SMITH and SUGG, P. JJ., and WALKER, ROY NOBLE LEE, BOWLING and HAWKINS, JJ.


text:
    Willie Pearl BOYD, Jr. v. STATE of Mississippi.
    No. 53193.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    James E. Brown, Starkville, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Oktibbeha County; Harvey Buck, Judge.

Before SMITH, P. J., and ROY NOBLE LEE and BOWLING, JJ.

AFFIRMED.


text:
    Douglas Wayne GREENHILL v. Agnes Faye GREENHILL.
    No. 53277.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Billy J. Jordan, Tammy Woolbright, Columbus, for appellant.
    Timothy E. Ervin, Aberdeen, for appellee.
   Appeal from Chancery Court, Monroe County; Fred P. Wright, Chancellor.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    Sylvester WHITE, a/k/a “Silver” v. STATE of Mississippi.
    No. 53128.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Dyer, Dyer & Dyer, Gaines S. Dyer, Greenville, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee-
   Appeal from Circuit Court, Washington County; Webb Franklin, Judge.

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

AFFIRMED.


text:
    Douglas GOULD v. Evelyn Gould BRYANT.
    No. 53320.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Charles A. Brewer, Jackson, for appellant.
    Roy Noble Lee, Jr., Forest, for appellee.
   Appeal from Chancery Court, Scott County; Osborn Guyton Idom, Chancellor.

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

AFFIRMED.


text:
    J. C. ALLEN v. STATE of Mississippi.
    No. 53022.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    J. 0. Hollis, Carthage, for appellant.
   Appeal from Circuit Court, Leake County; Marcus D. Gordon, Judge.

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

Before SMITH, P. J., and ROY NOBLE LEE, and BOWLING, JJ.

AFFIRMED.


text:
    Gerald BURGE v. STATE of Mississippi.
    No. 53233.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Lawrence D. Arrington, Hattiesburg, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Pearl River County; R. I. Prichard, III, Judge.

Before PATTERSON, C. J., and BROOM and DAN M. LEE, JJ.

AFFIRMED.


text:
    Carolyn Sue BERGERON v. Paul BERGERON.
    No. 53005.
    Supreme Court of Mississippi.
    Jan. 27, 1982.
    Floyd & Floyd, Jason H. Floyd, Gulfport, for appellant.
    Charles T. Sykes, Jr., Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; J. S. Morris, Chancellor.

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

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

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


author: ALMON, Justice.

text:
    MEDICAL CLINIC BOARD OF the CITY OF BIRMINGHAM-CRESTWOOD v. E. E. SMELLEY.
    79-929.
    Supreme Court of Alabama.
    Oct. 2, 1981.

      William M. Acker, Jr., of Dominick, Fletcher, Yeilding, Acker, Wood & Lloyd, Birmingham, for appellant.
    Thomas Reuben Bell and Thomas R. Bell, Jr., Sylacauga, for appellee.
   ALMON, Justice.

This appeal arises from a suit by a subcontractor for damages relating to work he performed on a nursing home construction project. The trial court, sitting withoút a jury, awarded damages against the defendant general contractor for breach of contract and against the public agency defendant, which owned the property, for failure to require the general contractor to execute a statutorily mandated bond. The public agency, Medical Clinic Board of the City of Birmingham-Crestwood (Medical Clinic Board), appeals from the latter part of this judgment. We affirm.

Medical Clinic Board is a public agency incorporated under Code 1975, §§ 11-58-1 through -15; the stated purpose of this Code Chapter is “to provide for boards as public agencies and instrumentalities of the state of Alabama to promote the acquisition of health facilities in order to promote the public health of the people of Alabama.” Id., § ll-58-2(a). On January 31, 1977, it entered into a contract with Garland Co., Inc. (Garland), for construction of a nursing wing addition to Fairhaven Methodist Home for the Aging (Methodist Home). Garland did not execute the bond required by Code 1975, § 39-1-1, in favor of persons supplying labor or materials for the construction.

E. E. Smelley contracted with Garland on June 27, 1978, to perform the dry wall (sheetrock) installation in the nursing wing addition. Prior to signing this contract, Mr. Smelley negotiated terms with Doug Ste-gall, one of Garland’s job superintendents. About ten days after he went to work on August 7,1978, Mr. Smelley was told by Mr. Whatley, Garland’s foreman on the site, that he would have to install sheetrock above the dropped eight-foot ceiling level. Considerable dispute arose over this aspect of the work, with Mr. Smelley contending that it was extra work and more difficult and costly than hanging sheetrock just to the eight-foot level, and Garland contending that the higher level was part of the contract signed by Mr. Smelley, which stated that work was to be performed “according to plans and specifications prepared by Thurston W. Sumner/Architect.” On September 7 Mr. Smelley quit work on the project.

Mr. Smelley filed suit against Garland on May 8, 1979, seeking damages on open account, for work and labor dqne, and for breach of contract. On July 31, 1979, Mr. Smelley added Medical Clinic Board and Methodist Home as defendants in' two counts added by the same amendment: one for wrongfully making final payment to Garland with notice of Smelley’s claim against Garland (Count IV) and the other for negligently, in reckless disregard of § 39-1-1, failing to require Garland to furnish bond (Count V). Garland filed a counterclaim alleging breach of c'ontract by Smelley; Medical Clinic Board, and Methodist Home filed a cross-claim against Garland based on an indemnity agreement executed on March 28,1979, by Garland’s president, H. H. Garland, Jr.

After further pleadings and discovery the circuit court, sitting without a jury, tried the case on April 10 and 11, 1980. On May 20, 1980, the trial court entered the following findings and judgment:

The Court finds that it was the agreement of the parties that plaintiff E. E. Smelley do only the “eight foot” drywall work at 19 cents per square foot. Defendant Garland Company, Inc. breached the contract by attempting to require more from plaintiff. Plaintiff will be allowed the contract price on all such square footage. For extra work done by Plaintiff he will be reimbursed quantum meruit, since there was not an agreement to do that work, but it was rather done on a step-by-step basis. The Court determines a total amount due to be $18,-000.00.
The Court further assesses attorney’s fees, since these would have been due had the bond required by statute been obtained, and this amount is fixed at $2,000.00.
Judgment for plaintiff E. E. Smelley against defendant Garland Company, Inc., in the amount of $20,000.00.
Judgment for plaintiff E. E. Smelley against defendant The Medical Clinic Board of The City of Birmingham in the amount of $20,000.00.
Judgment in favor of cross-claimant The Medical Clinic Board of the City of Birmingham against cross-defendant Garland Company, Inc. in the amount of $17,-270.58, which was the amount of money paid after the time of the signing of the hold harmless agreement.
Judgment in favor of defendant Fair-haven Methodist Home for the Aging.
Costs taxed against defendants Garland Company, Inc. and The Medical Clinic Board of the City of Birmingham.

The court amended the judgment in favor, of Methodist Home ex mero motu to increase the cross-claim judgment by $2,000.00, and denied defendants’ motion for new trial on July 23, 1980, and they filed this appeal on September 2, 1980. Garland later moved to dismiss its appeal, so Medical Clinic Board is the sole appellant.

Medical Clinic Board argues a number of issues on appeal alleging errors which we will group into the following categories:

(1) The breach of contract claim against Garland;
(2) The bond claim (Count V);
(3) The wrongful payment claim (Count IV);
(4) The award of attorneys’ fees.

The Breach of Contract Claim

Mr. Smelley argues that Medical Clinic Board has no standing to raise these issues, basing this argument on such cases as Tullis v. Blue, 216 Ala. 577, 114 So. 185 (1927), and Otts v. Gray, 287 Ala. 685, 255 So.2d 26 (1971). These cases, however, hold merely that a judgment for or against a nonappealing party will not be affected by a successful appeal by another party. Medical Clinic Board is not seeking to have the judgment against Garland reversed; rather, it argues that any liability it has derives from Garland’s liability to Mr. Smelley. That is, if Garland owed nothing to Mr. Smelley, then Mr. Smelley suffered no damage from either the final payment to Garland or the failure to require a bond. Because we find this reasoning persuasive, we will address these contract propositions raised by Medical Clinic Board: (a) the pa-rol evidence rule precludes the introduction of evidence of antecedent oral understandings and negotiations for the purpose of varying or contradicting the terms of a written contract; (b) subsequent agreements to modify a contract must be supported by all the necessary elements of a contract such as mutual assent and consideration; and (c) a plaintiff who has breached his own contract may not sue the other party to the contract for that party’s alleged breach of the same contract.

The statement above of the parol evidence rule begs the question of whether the writing is a complete and unambiguous statement of the agreement between the parties. If the writing is ambiguous, parol evidence is admissible to clarify the terms of the agreement; whether the writing is ambiguous is a question of law for the court. Universal Development Corp. v. Shader, 382 So.2d 1115 (Ala.1980); C. F. Halstead Contractor, Inc. v. Dirt, Inc., 294 Ala. 644, 320 So.2d 657 (1975). The ambiguity may be latent if the writing appears clear and unambiguous on its face, “but there is some collateral matter which makes the meaning uncertain; and parol or other extrinsic evidence is admissible to explain or clarify a latent ambiguity.” Ford v. Ward, 272 Ala. 235, 130 So.2d 380 (1961); see also Gibson v. Anderson, 265 Ala. 553, 92 So.2d 692 (1956).

Medical Clinic Board argues that the provision that Mr. Smelley was to install the drywall “according to plans and specifications prepared by” the architect is unambiguous and that the contract was entire and complete. Mr. Smelley, however, testified that Mr. Stegall told him to disregard the plans because they were being changed: “[I]n the first plans ... it was supposed to be double half inch going all the way up to the roof, but they were getting a new set of drawings changing the plans and it would be five-eighths going up to eight foot high.” Indeed, the plans furnished to Mr. Smelley by the architect in February of 1979 show double thickness sheetrock, and there was no contention at trial that such double thickness was installed or required.

Therefore Mr. Smelley’s testimony as to the height to which he agreed to install the sheetrock was admissible and, concomitantly, so was his testimony as to his extra expense for installing it to the higher level. Because the trial court was within its province in accepting Mr. Smel-ley’s testimony as to the original agreement, we hold that the second issue argued by Medical Clinic Board, subsequent modification, is not pertinent.

Similarly, the argument that Mr. Smelley could not recover because he also breached is inapplicable. Mr. Smelley testified that about a week before he left the job he asked Mr. Whatley for payment on some of the work he had done and was told that the only way he would be paid would be to finish the work or to sue. Furthermore, the argument fails because of the doctrine of substantial performance: Mr. Smelley testified that when he quit, approximately 90% of the work had been finished—including the extra work above the eight-foot level. Where one party has substantially performed his part of the agreement, he can enforce the other party’s promise to pay. Bruner v. Hines, 295 Ala. 111, 324 So.2d 265 (1975).

Medical Clinic Board points to a provision in the contract requiring extra work to be approved in writing before commencement and argues that this bars at least part of Mr. Smelley’s recovery. This work was not volunteered by Mr. Smelley, however; Mr. Whatley insisted upon it and apparently gave Mr. Smelley assurances that he would be paid. We shall not, under the circumstances, invoke this clause to disturb the judgment of the trial court.

The Bond Claim

Having established that the underlying claim against Garland had merit, we now proceed to consider the issues relating directly to this appeal. The issues subsumed under the bond claim are: (a) Does a public owner have a duty under Code 1975, § 39-1-1, to require a bond from the general contractor inuring to the benefit of subcontractors? (b) If so, when does the statute of limitations begin to run against a party seeking to file suit based on this duty? (c) Would a holding in favor of Mr. Smelley in this case be retroactive so as to constitute an impairment of the obligation of a contract entered into in reliance on a prior interpretation of the law? (d) Does Mr. Smelley’s failure to inquire whether Garland had filed a bond amount to contributory negligence?

The duty question turns on the language of the statute and on the decisions in Robbins v. City of Sheffield, 237 Ala. 674, 188 So. 874 (1939), Jackson v. City of Florence, 294 Ala. 592, 320 So.2d 68 (1975), and Housing Authority of Prattville v. Headley, 360 So.2d 1025 (Ala.Civ.App.1978). In Robbins this Court held that the municipality was “not liable to laborers or materialmen for failure to require a public contractor to give a bond” as provided by the precursor of § 39-1-1. 237 Ala. at 677, 188 So. 874. This decision was based on the doctrine of sovereign immunity, which was overruled in Jackson v. City of Florence, supra. The Court of Civil Appeals in Housing Authority of Prattville, supra, held a municipal housing authority subject to suit by a subcontractor in spite of the holding in Robbins because “the statute which authorizes the creation of housing authorities in this state expressly allows such authorities to sue and be sued.” 360 So.2d at 1027. The court expressly noted that the proceedings in that case were initiated prior to the decision in Jackson, supra.

Under the rationale of either Jackson or Housing Authority of Prattville the duty and liability imposed here should be allowed to stand. These events and proceedings took place subsequent to Jackson and so the removal of the rationale of Robbins made the duty and potential liability imposed by § 39-1-1 upon public agencies at best an open question; furthermore, § 11-58-5(2) gives medical clinic boards the power “[t]o sue and be sued and prosecute and defend civil actions in any court having jurisdiction of the subject matter and of the parties.” We find no error in the trial court’s imposition of liability for failure to require a bond.

Medical Clinic Board argues that Mr. Smelley’s claim is barred by the one-year statute of limitations found in Code 1975, § 6-2-39, because its duty to require a bond arose when it entered into its contract with Garland in January of 1977, and that its duty to Mr. Smelley arose on June 27,1978, when he contracted with Garland. It argues that the amendment which added Medical Clinic Board as a party on July 31, 1979, was beyond the period of the statute. Mr. Smelley counters that his cause of action arose when Medical Clinic Board authorized final payment to Garland on March 27, 1979. We agree. Not only does § 39-1-1 expressly state that an action on a bond “shall be commenced not later than one year from the date of final settlement of said contract,” but also, Mr. Smelley had no cause of action prior to this time because he had suffered no injury arising from Medical Clinic Board’s breach of duty. The Court of Civil Appeals made a similar ruling in Headley v. Housing Authority of Prattville, 347 So.2d 532 (Ala.Civ.App.1977), an earlier appeal of Housing Authority of Prattville, supra.

Medical Clinic Board’s argument that an affirmance would constitute an impairment of an obligation of contract is premised upon a belief that affirmance would rest on Housing Authority of Pratt-ville, supra, which was decided after the contracts here were executed. Because we hold that the trial court’s judgment is equally supported by Jackson, supra, we find no merit in this contention. Furthermore, Medical Clinic Board does not argue here that it defended the suit on the basis that it failed to require a bond in reliance upon the denial of liability in Robbins, supra, and so it will not be heard to argue such reliance here.

Dicta in Robbins, supra, indicates approval of a Florida holding

to the effect that as this related to a matter of public record, the one furnishing the labor and material might readily ascertain whether or not the bond had been given, and if he furnished such labor and materials when bond has not been given, his negligence in doing so with knowledge of such fact or without informing himself as to the true situation, is the cause of his loss and no recovery may be had against the public body.

Robbins v. City of Sheffield, supra, 237 Ala. at 677, 188 So. 874.

Our statute, however, makes no mention of filing the bond as a public record. Although it does require that a subcontractor shall be “furnished a certified copy of said additional bond and contract,” Code 1975, § 39 — 1—1(b), this applies only after payment has been denied, not before the subcontractor enters into the contract. Id. Therefore no statutory duty to inquire is imposed, and the subcontractor is entitled to take the contractor’s solicitation of his labor or materials as an assurance that the statutorily required bond has been executed.

The Wrongful Settlement Claim

Because we have held that the judgment may stand under the bond claim, we preter-mit discussion of this issue.

The Award of Attorneys’ Fees

Although this action sounds in tort and not upon a bond, we find that the statutory award of attorneys’ fees (§ 39-1-1) is part and parcel of the statutory imposition of duty; therefore, the trial court’s decision to award attorneys’ fees will be allowed to stand.

The trial court is due to be and is hereby affirmed.

AFFIRMED.

FAULKNER, EMBRY, BEATTY and ADAMS, JJ., concur.

      . The attorney for appellant filed a motion asking this Court to allow an untimely rehearing. The motion seeks a ruling that Medical Clinic Board is not a “subdivision” within the meaning of Code 1975, § 39-1-1. This motion was denied because that issue was not timely presented. Indeed, a contrary assumption was indulged at trial and on appeal. This footnote is added to make clear that this issue was not before the Court and, consequently, was not decided.


author: MARCUS, Justice. WATSON, Justice, DENNIS, Justice. LEMMON, Justice,

text:
    William G. RICHARDS, et al. v. Horace V. RICHARDS. Mrs. Loretto Richards O’REILLY v. Horace V. RICHARDS.
    No. 80-C-2559.
    Supreme Court of Louisiana.
    May 18, 1981.
    On Rehearing Jan. 25, 1982.
    Andrew L. Gates, III, of Gordon, Arata & McCollam, New Orleans, for defendant-relator.
    Thomas B. Lemann of Monroe & Lem-ann, Howard J. Smith of Doyle, Smith & Doyle, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

On December 26, 1941, Ernest V. Richards, Jr., established nine separate trusts, one for each of his children, by nine separate acts of donation which were identical in form. Plaintiffs, William G. Richards, Julian S. Richards and Mrs. Loretto Richards O’Reilly, each a beneficiary of one of these trusts, and John J. Richards, a co-trustee of these three trusts, filed actions to have their brother, Horace V. Richards, removed as a trustee of these three trusts pursuant to La.R.S. 9:1789.

The district court rendered judgment in favor of defendant and against plaintiffs dismissing their suits with prejudice. Plaintiffs appealed. Subsequent to oral argument on appeal, the clerk of court for the court of appeal informed counsel for defendant by letter that the court’s preliminary view was that the three trusts involved in the litigation had terminated. Defense counsel replied by letter advising the court that he was willing to acquiesce in the court’s view that the trusts had terminated by operation of law. The court of appeal rendered the following judgment:

Because defendant trustee concedes that the trust and his trusteeship have expired, the questions presented by this suit are moot. This appeal is therefore dismissed.

After reviewing the decision of the court of appeal, defendant became concerned as to whether the trusts had actually legally terminated and, if so, whether the six other trusts created by his father had also terminated. The latter question was of particular interest to defendant as he was the beneficiary of one of the trusts not involved in this litigation. Accordingly, he filed an application for rehearing requesting that the court (1) not decide at this time whether the trusts had terminated; or in the alternative (2) expand its reasons for its decision; or in the further alternative (3) remand the case to the trial court with the specific instructions that defendant be allowed to file a reconventional demand to allege specifically that the three trusts subject to this litigation as well as the trust created for the benefit of defendant had expired. The court of appeal refused rehearing but did expand on its reasons for dismissing the action as moot. On defendant’s application, we granted certiorari to review the correctness of that judgment.

Plaintiffs first contend that defendant should not be allowed to attack the judgment rendered by the court of appeal terminating the trusts as the judgment was rendered in reliance on his acquiescence. In particular, plaintiffs urge that (1) defendant is estopped from revoking his “judicial confession” that the trusts had terminated because plaintiffs and the court of appeal relied upon it; (2) defendant was granted the relief requested by him when the court ruled that the trusts had terminated after his acquiescence of the termination, and thus is not entitled to an appeal; (3) defense counsel’s letter signified his consent to the court’s preliminary view that the trusts had terminated, and thus the decision rendered by the court was a consent judgment binding on all of the consenting parties and thus is not appealable; and (4) defendant should not be permitted to repudiate his consent to the dismissal which was relied upon by plaintiffs in giving their consent to the dismissal.

We need not address any of these contentions as defendant did not have the power or authority to terminate any of the trusts. The concept of trust indestructibility is inherent in our Louisiana trust law. McLendon v. First National Bank of Shreveport, 299 So.2d 407 (La.App. 2d Cir. 1974). This is evidenced by La.R.S. 9:2028 which states:

The consent of all settlors, trustees, and beneficiaries shall not be effective to terminate the trust or any disposition in trust, unless the trust instrument provides otherwise.

In the instant case, the trust instrument does not provide for termination by consent of any or all of the parties. Therefore, defense counsel’s letter acquiescing in the termination of the trusts had no effect. Furthermore, he had no authority to terminate the trusts as La.R.S. 9:2111 provides that

a trustee shall exercise only those powers conferred upon him by the provisions of the trust instrument or necessary or appropriate to carry out the purposes of the trust and are not forbidden by the provisions of the trust instrument.

The sole issue for our determination is whether the court of appeal erred in finding that the trusts had terminated. Each of the acts of donation creating the trusts contain the following provision:

The legal title to all the trust estate shall be vested in the Trustees, and their successors, as Trustees, to be held by them in trust pursuant to the laws of the State of Louisiana, and particularly the Trust Estates Act, as same may from time-to-time be amended, for the maximum allowable period.

It is clear from this provision that the set-tlor-donor desired the trusts to exist for the maximum allowable period of time as provided for under Louisiana trust law as would from time-to-time be amended.

In ruling that the trusts had terminated, the court of appeal relied on La.R.S. 9:2252 (savings clause) which provides in pertinent part:

Trusts heretofore created and any provisions or dispositions therein made shall be governed by the laws in effect at the time of their creation.

Following this statute, the court applied the trust law regarding term of trusts that was in effect in 1941, the year the trusts were created. Section 4 of Louisiana Acts 1938, No. 81, provided in pertinent part:

Unless an earlier termination is required by the trust instrument or by the proper court, every inter vivos or testamentary trust created under this Act shall terminate at the expiration of ten years from the settlor’s death as to a beneficiary which is not a natural person, at the expiration of ten years from the settlor’s death as to a beneficiary who is a natural person and of full age at the settlor’s death, and at the expiration of ten years from the beneficiary’s majority as to a beneficiary who is a natural person and a minor at the settlor’s death.

The court ruled that since Ernest V. Richards, Jr., the settlor, died in 1960, the trusts “expired either in 1970, ten years from the settlor’s death, or no later than 1973, which is at least ten years from the [majority] of any beneficiary alive or conceived in 1941.”

In reaching this result, the court of appeal ignored the settlor’s intent and misapplied the savings clause of La.R.S. 9:2252. In construing a trust, the settlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. Lelong v. Succession of Lelong, 164 So.2d 671 (La.App. 3d Cir. 1964). It was the settlor’s intent that the trusts in question exist for the maximum allowable period of time as provided for under Louisiana trust law as would from time-to-time be amended. We know of no public policy or law that would prohibit a trust from containing such a condition.

The 1952 Comments to La.R.S. 9:2252 state that the purpose of the savings clause is to assure the validity of trusts heretofore created. The court of appeal misapplied this clause and reached a result that held invalid a provision desired by the settlor. While correct in its conclusion that the trust law in effect in 1941 should be used in interpreting the trust, the court erred when it applied the 1938 trust law in determining the actual term of the trusts. Each trust specified that the term would be for the maximum allowable period as may from time-to-time be amended, not the maximum allowable period in effect at the time the trusts were created. We are of the opinion that the laws in effect at the time of creation should be used to determine the validity of the provision that states that the term shall be for the maximum allowable period as may from time-to-time be amended, but not to determine the actual term of the trusts. We can find nothing in the laws in effect at the time the trusts were created that would prohibit the term provision contained in the instant trusts. Therefore, we conclude that the term provision should be given full effect in accordance with the settlor’s clear intent. Because the provision states that the term is to be for the maximum allowable period as may from time-to-time be amended, the actual term of the trusts should be the maximum allowable period under current law.

La.R.S. 9:1831 states in pertinent part:

If the trust instrument stipulates a term and, unless an earlier termination is required by the trust instrument, or by the proper court, a trust shall terminate at:
(1) the death of the last surviving income beneficiary or the expiration of twenty years from the death of the set-tlor last to die, whichever last occurs, if at least one settlor and one income beneficiary are natural persons; . . .

The 1968 Comments to the statute provide that a “statement in the trust instrument that the term of the trust is the maximum allowable term, is a stipulation of a term.” La.R.S. 9:1831(1) is applicable to the trusts in question because the settlor was and the income beneficiaries are natural persons and because the instruments state that the term is for the “maximum allowable period.” Therefore, the trusts have not terminated and will not terminate until the death of their respective income beneficiaries. The court of appeal erred in holding otherwise. Hence, we must reverse.

Since the court of appeal found that the trusts had terminated, it did not reach the question upon which plaintiffs had taken an appeal, that is, whether the trial judge erred in refusing to remove defendant as a trustee from the three trusts in question pursuant to La.R.S. 9:1789. We deem it more appropriate to remand the case to the court of appeal to render a decision on this issue.

DECREE

For the reasons assigned, the judgment of the court of appeal dismissing plaintiffs’ appeal as moot and finding the trusts in question to have terminated by operation of law is reversed and the case is remanded to that court for a determination of whether the trial court erred in dismissing plaintiffs’ action to have defendant removed as a trustee.

DENNIS, J., concurs with reasons.

WATSON, J., dissents and assigns reasons.

LEMMON, J., dissents and will assign reasons.

WATSON, Justice,

dissenting.

The opinion of the Court of Appeal is correct. The terms of these trusts was “the maximum allowable period” at the time they were established in December of 1941. It is not clear from the language that the preceding phrase, referring to future amendment of the Trust Estates Act, also applies to the period for which the trusts were established. Even if intended to do so, that phrase could not extend the term. Under LSA-R.S. 9:2252, amendments to the.Trust Code govern prior trusts in administrative and procedural matters but cannot affect vested rights. These beneficiaries had a vested right to termination of the trusts at the end of the maximum time authorized by law at the time of their creation. I respectfully dissent from the holding that the terms of the trusts should be the maximum period under current law.

ON REHEARING

DENNIS, Justice.

After a rehearing, we conclude that our original opinion is correct for the reasons assigned in this court’s first opinion. Plaintiffs’ forceful written and oral arguments press us, however, for a further explanation of why the clause establishing the term of the Richards trusts was not prohibited by Section 4, Act No. 81 of 1938.

The clause in question states:

The legal title to all the trust estate shall be vested in the Trustees, and their successors, as Trustees, to be held by them in trust pursuant to the laws of the State of Louisiana, and particularly the Trust Estates Act, as same may from time-to-time be amended, for the maximum allowable period.

La.R.S. 9:2252 declares that trusts “shall be governed by the laws in effect at the time of their creation.” When the Richards trusts were created in 1941, the trust law in effect was Act 81 of 1938. Section 4 of that act provided:

Unless an earlier termination is required by the trust instrument or by the proper court, every inter vivos or testamentary trust created under this Act shall terminate at the expiration of ten years from the settlor’s death as to a beneficiary which is not a natural person, at the expiration of ten years from the settlor’s death as to a beneficiary who is a natural person and of full age at the settlor’s death, and at the expiration of ten years from the beneficiary’s majority as to a beneficiary who is a natural person and a minor at the settlor’s death. If the terms of the trust purport to require a period of duration as to any beneficiary longer than the maximum allowable period set forth in the preceding sentence, but the trust is otherwise valid under this Act, the trust shall be enforced as to such beneficiary for the maximum allowable period and shall then be terminated.

The policy of our state toward express private trusts is clearly established by the trust code. La.R.S. 9:1721 et seq.; La.C.C. art. 17. A trust or a disposition in trust may be made subject to any condition not forbidden by the trust code and not against public order or good morals. La.R.S. 9:1736. The provisions of the trust code shall be accorded a liberal construction in favor of freedom of disposition. La.R.S. 9:1724. The code is considered to sanction a disposition in trust if its text expressly or impliedly authorizes the disposition. La. R.S. 9:1724, comment (c). In construing a trust, the settlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. See La. R.S. 9:1736, comments — Professor Leonard Oppenheim. These rules of interpretation are substantially the same as those employed by our courts in litigation concerning trusts created under the Louisiana trusts estates law, Act 81 of 1938. See Lelong v. Succession of Lelong, 164 So.2d 671 (La.App. 3d Cir. 1964).

According a liberal construction to Section 4 in favor of freedom of disposition, we conclude that it does not prohibit the conditional term provision of the Richards trusts. A careful reading of Section 4 reflects that it defines the maximum allowable period, and provides that, if a trust instrument establishes a longer term, it shall be enforced only for the “maximum allowable period.” The Richards trusts’ conditional term provision does not establish a term longer than the maximum allowable period; it only seeks to make the trusts truly coterminous with the maximum allowable period. A condition which does not establish an excessive term but merely provides for a term modification contingent upon and in accordance with new legislation is not expressly prohibited. Furthermore, Section 4 does not expressly deny to trusts created under it the benefit of subsequent changes in the definition of “maximum allowable period.” Since the Richards trusts’ clause was not expressly forbidden, and a liberal construction in favor of the settlor’s intention and freedom of disposition prevents our finding it implicitly barred, the intention of the settlor will be carried out and the clause will be rendered operative and effective.

For the reasons assigned, our original decree is reinstated.

CALOGERO, J., dissents for reasons assigned by WATSON, J., on original hearing.

WATSON, J., dissents.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The settlor of the 1941 trust arguably attempted to incorporate future changes in the law pertaining to the maximum allowable period of duration. The principal issue is whether that attempt was successful under the subsequently adopted Louisiana Trust Code.

R.S. 9:2252, the savings clause, provides that substantive matters in previously created trusts are to be governed by the laws in effect at the time of creation. Significantly, that provision of Section 2252 did not include the exception “unless otherwise provided in the trust instrument”, as does the following sentence of the section pertaining to administrative and procedural matters.

I conclude that Section 2252 does not allow (and implicitly prohibits) the effectiveness of the testator’s attempt to have subsequent legislation govern his 1941 trust in substantive matters.

      .La.R.S. 9:1789 provides:
      A trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown.

      . 388 So.2d 1186 (La.App. 4th Cir. 1980).

      . 395 So.2d 812 (La.1980).

      . After granting defendant’s application for writs in this matter but prior to oral argument, plaintiffs’ counsel filed a supplemental brief in this court advising that it had just come to their attention that there had been a 1967 proceeding in a different division of the Civil District Court for the Parish of Orleans pursuant to La.R.S. 9:2233 in which all trustees and beneficiaries of the nine trusts, including the plaintiffs and defendant in this proceeding, had petitioned the court for instructions as to whether the trusts would terminate ten years after the settlor’s death or at the death of the income beneficiaries. Judge Paul P. Garofalo rendered judgment on February 9, 1968, finding that the nine trusts in question “shall terminate upon the death of the income beneficiary named in each trust instrument.” Since this judgment is in accordance with the result reached herein, we need not consider the effect, if any, it might have on the present litigation.

      . LSA-R.S. 9:2252 provides:
      “Trusts heretofore created and any provisions or dispositions therein made shall be governed by the laws in effect at the time of their creation. Unless otherwise provided in the trust instrument, trusts created prior to the effective date of this Code shall be governed in all administrative and procedural matters by the provisions of this Code and not by laws in effect at the time of creation of such trusts, and trusts created prior to the adoption of any amendment to this Code shall be governed in administrative and procedural matters by the provisions of the amendment.”