text:
    Succession of Willard H. KILPATRICK. Succession of Katherine Terrill KILPATRICK.
    Nos. 14231, 14232.
    Court of Appeal of Louisiana, Second Circuit.
    March 4, 1980.
    En Banc. Rehearing Denied April 3, 1980.

      Beard, Arceneaux & Sutherland by M. Thomas Arceneaux and Fred H. Sutherland, Shreveport, and Sockrider & Bolin by H. F. Sockrider, Jr., Shreveport, for petitioner-appellant, The First National Bank of Shreveport.
    Baker, Culpepper & Brunson by Donnie G. Brunson, Jonesboro, for defendant-appel-lee, Arnold Kilpatrick, Executor of the Succession of Willard H. Kilpatrick and the Succession of Katherine Terrill Kilpatrick.
    Brown, Wicker, Lee & Barnes by Frederic C. Amman, III, Monroe, for defendant-appellee, Harper R. Terrill, Executor of the Succession of Willard H. Kilpatrick and the Succession of Katherine Terrill Kilpatrick.
    Before PRICE, HALL and JONES, JJ.
   ON MOTION TO DISMISS APPEALS

HALL, Judge.

For the reasons set forth in this opinion, we dismiss the suspensive and devolutive appeals perfected by The First National Bank of Shreveport from interlocutory orders of the district court in these succession proceedings.

Willard H. Kilpatrick died February 6, 1977 and his will, dated January 16, 1977, was probated by ex parte proceedings on February 8, 1977. Arnold R. Kilpatrick and Harper A. Terrill were confirmed as testamentary executors. On February 17, 1977, The First National Bank of Shreveport filed in the record of the succession proceeding two wills of the decedent, one dated June 14, 1972 and the other dated September 16, 1976.

On May 4, 1977 the bank, joined by The Board of Trustees for State Colleges and Universities of the State of Louisiana and The Board of Supervisors of Louisiana State University, filed a petition seeking to annul the will dated January 16, 1977 on allegations that the decedent lacked physical and mental capacity to make a will. The petition sought recognition and probate of the will dated September 16, 1976, and judgment ordering the executors to return to the succession any property which may have been alienated or otherwise disposed of by them. The executors and Kilpatrick’s widow, Katherine Terrill Kilpatrick, were named as defendants.

The defendants filed a peremptory exception of no cause or right of action which was sustained by the trial court but was reversed on appeal as to the bank which was named as executor and trustee in the September 1976 will. See Succession of Kilpatrick, 356 So.2d 1083 (La.App. 2d Cir. 1978), writ denied 359 So.2d 198 (La., June 2, 1978).

Although the record shows numerous pleadings filed thereafter relating to the administration of the succession, the record does not show any proceedings related to the petition to annul the will until September 25, 1979 when the district court issued an order setting a pretrial conference for October 11, 1979. By subsequent orders the conference was rescheduled for November 26, 1979. On that date, after the conference, the bank filed an unusual and hybrid pleading which' gave rise to the orders appealed from.

In the meantime, Mrs. Kilpatrick died on March 15, 1979. Her will dated January 16, 1977 was probated by ex parte proceedings on May 11, 1979. Arnold R. Kilpatrick and Harper A. Terrill were appointed as testamentary executors. The record in that succession proceeding shows numerous pleadings filed thereafter relating to the administration of the succession, but no appearance in that proceeding by the bank until the filing of the pleading referred to aboye on November 26, 1979.

The pleading is styled “Petition of The First National Bank of Shreveport.” It bears the style of both the Succession of Willard Hansford Kilpatrick, No. 3409, and Succession of Katherine Terrill Kilpatrick, No. 3637, although the two succession proceedings had not been consolidated in any respect. The pleading states that insofar as concerns the Succession of Willard H. Kil-patrick, the petition is supplemental and amendatory of petitioner’s original petition filed May 4, 1977 and insofar as concerns the Succession of Katherine Terrill Kilpa-trick is an original petition. The petition contains 51 allegatory paragraphs. Detailed facts are alleged concerning Mr. and Mrs. Kilpatrick’s estate planning leading up to the execution by each of them of wills dated September 16 and 17, 1976 and other agreements including a spendthrift inter vi-vos life insurance trust. Many allegations are of facts relating to Mr. and Mrs. Kilpa-trick’s incapacity to make the probated wills. Other allegations relate to powers of attorney, change of beneficiary forms, and a later will dated March 4,1979 purportedly signed by Mrs. Kilpatrick. Other allegations relate to action taken by Arnold R. Kilpatrick both before and after Willard Kilpatrick’s death relative to property belonging to the Kilpatricks or their successions. The petition sought: (1) an order allowing the filing of the petition as a supplemental and amended petition; (2) that the executors be ordered to file inventories and annual accountings, produce documents, and answer interrogatories; (3) judgment decreeing that Mr. Kilpatrick lacked capacity to execute a certain power of attorney, the January 16,1977 will, and a January 20, 1977 change of beneficiary form on an insurance policy; decreeing these documents null and void and recognizing as valid the will of September 16; and decreeing null and void all sales and other actions taken by anyone under the authority of the alleged void instruments; (4) judgment decreeing that Mrs. Kilpatrick lacked capacity to execute a power of attorney, the January 16, 1977 will, and a March 4, 1979 will; decreeing these documents to be void and recognizing as valid her will of September 17, 1976; and decreeing null and void all sales and other actions taken by anyone under the authority of the alleged void instrument; (5) that the executors be required to account for all property of the estates and for judgment against the executors for any loss or damage sustained as a result of their acts; and (6) for reasonable attorney’s fees, expenses, expert witness fees and court costs.

Attached to the pleading was an order for the signature of the district judge ordering that: (1) the filing of the petition as a supplemental and amended petition be allowed in Suit No. 3409; (2) the executors be directed to file inventories of the assets of the estates and annual accountings within 30 days; (3) the executors produce and file certain documents; and (4) the executors answer attached interrogatories.

The district court refused to sign the order attached to the pleading, and, instead, issued an order noting that the “Petition” presented to the court by the bank would unduly delay a decision concerning the validity of the will of Willard Kilpatrick and would result in needless expense and loss of time if all of the issues raised'in the “Petition” were tried at this time, provided: The order

“1. The First National Bank of Shreveport is hereby denied the right to amend its petition as set forth in the pleadings as presented to the Court on this date, however, there is hereby reserved to The First National Bank of Shreveport the right to amend its petition in any manner it deems necessary to attack the validity of the said will of Willard H. Kilpatrick dated January 16, 1977;
“2. The defendants in the petition to annul the will of January 16, 1977, shall have ten (10) days from this date to answer the petition as filed on May 4, 1977;
“3. All discovery by all parties in these proceedings shall be completed on or before January 15, 1980, and,
“4. The trial of this case on its merits is hereby fixed for February 20, 1980, at 9:30 o’clock A.M. at the Courthouse in Jonesboro, Jackson Parish, Louisiana.”

All parties had agreed to the February 20 trial date.

On December 3, 1979 the bank filed a motion to consolidate the two successions for trial and appeal purposes and also filed a motion for reconsideration and recall of the court’s order of November 6, 1979. The motions were heard on December 11, 1979 and were denied.

The bank filed an application for writs in this court which was denied. The bank also, on December 20, 1979, filed in the district court a motion for suspensive and devolutive appeals from the orders of November 26 and December 11, 1979. The suspensive and devolutive appeals were granted returnable to this court on February 15, 1980. The suspensive appeal was perfected by the filing of a bond. Also on December 20, formal judgments were signed setting forth the orders previously rendered.

On February 13, 1980, the bank filed a motion to stay in this court alleging that the district court intended to go forward with the trial of February 20 and contending that the trial court was without jurisdiction to proceed further with the case because of the pending appeals. This court granted the stay order, pending disposition of the appeals.

The records on appeal were lodged in this court on February 19, 1980, and the appel-lees-executors filed a motion to dismiss the appeals, contending the orders appealed from are interlocutory, do not cause irreparable injury, and are not appealable. An opposition to the motion was filed by appellant. The motion to dismiss is well taken and the appeals will be dismissed.

An appeal may be taken from a final judgment, and from an interlocutory judgment which may cause irreparable injury. LSA-C.C.P. Art. 2083. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. Art. 1841.

The orders refusing to allow the filing of a supplemental and/or amending petition and refusing to consolidate the two succession proceedings are not final judgments. They do not determine the merits in whole or in part. They do not, as argued by appellant, amount to a dismissal without prejudice of demands asserted by the petitioner. They merely refuse to allow the bank to assert those demands in the particular manner by which the bank sought to do so, that is, by the particular pleading which the bank filed. The orders are preliminary matters in the course of the action and are interlocutory orders or judgments.

The interlocutory orders, even if erroneous (we do not consider on this motion to dismiss whether the orders are erroneous), do not cause irreparable injury. The test for determining whether án interlocutory judgment may cause irreparable injury is not whether a possible procedural error in the course of litigation in the trial court may be corrected on appeal after trial on the merits, but is whether the procedural error will have such an effect on the merits of the case that the appellate court cannot correct an erroneous decision on the merits. Review and correction of every claimed trial court procedural error by the appeal process is neither desirable nor necessary. The result of that process would be piecemeal appeals and undue delay. Hunter v. Health & Social & Rehabilitation Services, 372 So.2d 577 (La.App.2d Cir. 1979).

The test of irreparable injury is not met in this case. The orders rendered, even if erroneous, will not have such an effect on the merits of the case that the appellate court cannot correct an erroneous decision on the merits after trial. The only effect of the procedural orders is to regulate the procedure and order in which various actions and issues involved in the two separate succession proceedings will be tried and disposed of by the trial court, matters which are particularly within the province and discretion of the trial court itself. In the posture in which these two succession proceedings exist at this point in time, the trial court itself can yet alter its procedural handling of these matters, if it deems appropriate in its discretion, on its own motion or based on any subsequent pleadings, such as an amending petition in accordance with LSA-C.C.P. Art. 1151, or a supplemental petition in accordance with LSA-C.C.P. Art. 1155, or a new and separate petition, properly designated and filed as such in the particular proceeding to which the pleading applies. Since the trial date previously fixed has been upset, the trial court at this point could, in its discretion, consider consolidating for trial any closely-related actions in the two succession proceedings, such as the validity of the several wills involved.

In this case we perceive no irreparable injury accruing to the petitioner by reason of the trial court’s efforts toward hastening the trial of the long-pending action to annul the probated will in the Willard Kilpatrick Succession, particularly since the petitioner’s right or interest to pursue the other demands it sought to assert in the supplemental and/or amending petition depends on the success of its attack on the validity of the probated will. There is no irreparable injury caused by the interlocutory orders. Consequently, no appeal lies therefrom. This court lacks jurisdiction.

The appeals in both succession proceedings are dismissed at appellant’s costs.

      . This court held that the bank, as executor and trustee under the 1976 will, had a right of action, a justiciable interest, to annul the 1977 will and to probate the 1976 will. This holding did not deal with the issue of the right of the bank to assert other claims and demands in the succession proceeding prior to establishing its justiciable interest to assert such other claims and demands by successfully attacking the 1977 will and probating the 1976 will.

      . In the writ application, the bank contended that it was entitled to amend its petition without leave of court under LSA-C.C.P. Art. 1151, since no answer to the original petition had been filed by the defendants. The bank further contended that the district court abused its discretion in not allowing the bank to supplement its petition under LSA-C.C.P. Art. 1155 and in refusing to consolidate the two succession proceedings for purposes of trial and appeal. This court denied the application as not warranting the exercise of this court’s supervisory jurisdiction. We were influenced in taking that action in part by the fact that it was virtually impossible for the trial court, or this court, to pick out which of the 51 allegations contained in the pleading were properly “amendments” to the original petition under Article 1151. Further, it appeared that the district court was making a laudable effort to move the matter to trial, long-delayed, on the central and threshold issue of the validity of the 1977 Willard Kilpatrick will, without further delay and without complicating that imminent trial by injecting new issues and actions which might not have been ripe for trial. Although one trial, one final judgment, and one appeal is the procedural objective in most suits, it is not unusual for a succession proceeding to involve several separate and successive actions, all of which cannot necessarily be tried at one and the same time. In any event, this court does not' exercise its supervisory jurisdiction to correct every procedural error during the course of litigation, particularly where no significant prejudice or injury is shown; and none was shown here.


source: Caselaw Access Project

author: BROOM’, Justice, for the Court:

license: Public Domain

text:
    George Edward CALDWELL v. STATE of Mississippi.
    No. 51698.
    Supreme Court of Mississippi.
    Feb. 27, 1980.

      Bridgforth, Woods & Buntin, Taylor Bun-tin, John G. Zizmann, Southaven, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, BROOM and COF-ER, JJ.

      . This case appeared here previously. 347 So.2d 1389 (Miss.1977). Details of the shooting affray are given in the reporter cited and will not be restated here. At the first trial, reversal was ordered so as to provide a bifurcated trial under Jackson v. State, 337 So.2d 1242 (Miss.1976).

   BROOM’, Justice, for the Court:

Capital murder is the offense for which the appellant George Edward Caldwell (defendant) was convicted in the Circuit Court of DeSoto County. After the jury was unable to agree upon the punishment, a life sentence was imposed against the defendant and he appeals, arguing that the court erred in (1) jury selection procedures, (2) instructing the jury, and (3) in not directing his acquittal. We reverse.

The record established that the defendant, after having an argument with the assistant manager of a supermarket in Her-nando concerning payment for a pack of cigarettes, shot and killed Police Officer Key outside the supermarket. The dispute between the defendant and the assistant manager centered around whether the defendant should stand in line in order to receive his change. When the assistant store manager indicated that he might call the police, the defendant, who was armed, replied, “Call the police, Marines, the Army or anybody. I will be out here waiting. .” When Policeman Key arrived, the shoot-out erupted (who fired first is unclear) and the defendant fatally shot the officer with a pistol. In the affray, the defendant and the supermarket assistant manager were also wounded.

In qualifying the prospective jurors, the trial judge asked whether the state “ . . . ever had to prosecute or present or handle any matter against any member of your family or a close personal friend?” There was no response to this question and in due course both the state and the defendant were allowed to make their voir dire examination of the prospective jurors. A jury was accepted and the twelve together with two alternate jurors were seated to try the case, after which the court recessed proceedings for lunch. Before the taking of testimony commenced one of the jurors, Mrs. Busby, was asked to come before the court. She, together with the attorneys for both sides, went into chambers where Mrs. Busby was questioned by the trial judge. The court’s examination of her brought forth information that her son, Jimmy Lee Busby, was under indictment in DeSoto County in a criminal matter, and that along with her son, she had been in the DeSoto County Youth Court on a prior occasion.

Further questioning by the circuit judge brought forth from Mrs. Busby her explanation that she- remained mute to the court’s question on voir dire simply because she did not' understand the question. At that time, over objection of the defendant, the state was permitted to peremptorily challenge and excuse Mrs. Busby after which the court replaced her with alternate juror Nails. In that posture, the defendant sought to peremptorily challenge juror Nails (the alternate which had moved up), but the court refused to permit the requested challenge.

DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO PEREMPTORILY CHALLENGE JUROR BUSBY AFTER THE JUROR HAD BEEN PRESENTED TO AND FINALLY ACCEPTED BY BOTH THE STATE AND THE DEFENDANT?

Regarding the action of the trial court in allowing the state to peremptorily challenge juror Busby, and in refusing to allow the defendant to similarly excuse alternate jur- or Nails, Mississippi Code Annotated § 99-17-3 (1972) is germane. The statute says:

[A]ll peremptory challenges by the state shall be made before the juror is presented to the prisoner. In all cases the accused shall have presented to him a full panel before being called upon to make his peremptory challenges.

Permitting the state to peremptorily challenge juror Busby after her acceptance by both sides is argued by the defendant to be “in direct violation of the statute and in violation of his constitutional rights. . .”

Argument of the state is that whether a juror is fair and impartial is a judicial question, and that the judge on his own motion could have rightly excused Busby. According to the state, our statutes concerning jury selection are directory rather than mandatory. Thorne v. State, 348 So.2d 1011 (Miss.1977); Russell v. State, 220 So.2d 334 (Miss.1969); Upshaw v. State, 231 Miss. 158, 94 So.2d 337 (1957); and Jefferson v. State, 52 Miss. 767 (1876) are relied upon by the state.

When measured according to the facts, the cited cases are hardly analogous to the situation here. Russell upheld the action of a trial judge in excusing a juror after a trial had begun where it was discovered that the juror had participated as a juror in the justice court trial of the cause. Our action there was founded largely upon the logic that a trial judge has considerable discretion in such matters absent any showing of prejudice. The “abstract right” of the judge to change the makeup of the jury was discussed in Jefferson which upheld the trial judge’s excusing of a juror who subsequent to the beginning of the trial arose and made it known that he served on the grand jury which returned the indictment against the defendant.

According to the state, it is “permissible, if not mandatory, for the trial court to set aside incompetent jurors. The question is a judicial one. . . .” Indeed, much of the state’s argument here is premised upon the theory that juror Busby (removed peremptorily by the state) was “incompetent.” We are not persuaded by the state’s argument for the reason that the record does not show that juror Busby was “incompetent.” Without citing any authority on “incompetency”, the state takes the position that Busby lacked competency merely because her son was under indictment and additionally she had at some time been in youth court with him. We know of no authority holding that one whose son was under indictment and had been in youth court is an incompetent juror. Of course, such events in her son’s life may be factors but the test should be — is the juror fair and impartial or shown to be disqualified. To hold that Busby was here shown to be an incompetent juror would be a strained interpretation. This is true because the record shows that before the jury was empanelled the court asked the jurors if they could be considered “fair and impartial” in this particular trial. Additionally, the jurors were asked by the attorneys if they could give both sides a fair trial. Jur- or Busby having made no indication that she could not be fair and impartial (on voir dire or when she was subsequently excused), we think she was before the court as a competent juror absent some indication that she was rendered incompetent because of some fact or circumstances. We cannot presume as a matter of law that her son’s indictment and her past experience of having attended youth court with him would cause her to be prejudiced as a juror.

According to the defendant after the court permitted the state to peremptorily challenge and excuse Busby, then the defendant should have been permitted in like manner to challenge alternate juror Nails. The state notes that under Mississippi Code Annotated § 13-5-67 (1972), alternate jurors “in the order in which they are called shall replace jurors, who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties.” Under the statute the state says the alternate Nails, having been accepted by both sides, was not under the statute subject to peremptory challenge by either party. Under Dixon v. State, 164 Miss. 540, 143 So. 855 (1932), the state argues that both sides having accepted alternate juror Nails, the judge properly refused to permit the defendant to peremptorily challenge Nails. In its brief, the state says: “Alternate juror Nails stood in this posture and, unlike juror Busby, there was no compelling reason to set him aside.” As previously stated we have not been shown any “compelling” reason for Busby’s excusal on the record wherein she gave no indication and none was otherwise shown that she would be other than a fair and impartial juror.

Cook v. State, 38 So. 113 (Miss.1905) held that “the trial judge discriminated against the defendant when he permitted the State to exercise, belatedly, a preemptory challenge against juror Wade and immediately thereafter denied the defendant’s request to do likewise with regard to juror Kilgore.” The state says that in Cook, “jurors .Wade and Kilgore stood on equal footing. In the case at bar, jurors Busby and Nails didn’t. While one was competent to serve, the other was not.” Again, the state considers Busby as being incompetent but as previously noted, we are not persuaded. Perhaps it may be arguable that some negative inference could be drawn from the fact that her son was under indictment and had been in youth court, but we are unwilling to hold that Busby’s actual incompetence was established.

The state says that under Mississippi Code Annotated § 13-5-67 (1972), “[T]he case sub judice, of course, is a ‘capital case.’ Furthermore, the statute expressly states that ‘[t]he additional peremptory challenges provided for herein may be used against an alternate juror only, and other peremptory challenges allowed by law may not be used against an alternate juror.’ (Emphases supplied).” Under the statute as interpreted by the state alternate juror Nails could have been challenged peremptorily by the defendant only in the event that he had one, or both, of his specially designated peremptory challenges remaining un-exer-cised. Then the state points out that the record does not clearly show that this defendant had already exercised his two alternate juror challenges, and therefore it is said that reversible error may not be predicated upon refusal of the trial judge to allow the defendant to peremptorily challenge an alternate juror.

Upon the peculiar facts of this record where it does not appear that the juror Busby was in fact “incompetent” as a juror, the trial judge erred in allowing the state to peremptorily excuse that juror. The error would have been greatly minimized (if not cured), had he then allowed the defendant to challenge alternate juror Nails who replaced Busby by a like challenge. The case has similarities to Cook, supra, in that there seems to be discrimination in favor of the state by failure of the court to allow the defendant to excuse the alternate juror in the same fashion that the state was allowed to excuse juror Busby. Fairness requires that the defendant be granted another trial.

Second proposition argued is the contention that

THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT AN INSTRUCTION ON MANSLAUGHTER, AS CONTAINED IN APPELLANT’S INSTRUCTIONS D-9, D-10, and D-ll, AND FURTHER ERRED IN GRANTING THE STATE A CAPITAL MURDER INSTRUCTION AS GIVEN IN INSTRUCTION S-l.

Refused Instruction D-9 is in the following language:

The Court instructs the jury that, as a matter of law, the attempted arrest of the defendant by Rory Key was an unlawful attempt to arrest the Defendant.

This instruction is patently erroneous, being totally peremptory in nature and if given would have the effect of constituting a directed verdict of manslaughter .

Refused Instruction D-10 is in the following language:

The Court instructs the jury that the unnecessary killing of another person-while resisting an attempt by such other person to do any unlawful act, or after such an attempt shall have failed, is manslaughter, and if you believe from the evidence beyond a reasonable doubt that the defendant killed Rory Key, a human being, while the defendant was resisting Rory Key’s unlawful attempt to arrest him, or after Rory Key’s unlawful attempt to arrest the defendant had failed, and that defendant’s killing of Rory Key was unnecessary, then you shall find the defendant guilty of manslaughter.

In arguing that the court committed reversible error in refusing the above jury instructions, the defendant relies upon Mississippi Code Annotated § 97-3-31 (1972), which provides:

Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter.

He contends that “the testimony of the State’s own witnesses at trial show that the action of the officer was unlawful and that the appellant could be guilty of no more than manslaughter under the laws of the State of Mississippi.”

Details pertinent here are summarized as follows. The defendant, along with Miller and Bowen, drove to the Big Star Grocery Store where Bowen purchased beer for another person. Inside the store the defendant got into an argument but exited before any serious trouble had developed. Shortly thereafter the defendant went back inside to buy cigarettes — the store was crowded and checking counters busy. He tried to purchase the cigarettes without getting in line, but was not permitted to do so, and then he went outside. Assistant Manager Patrick followed the defendant outside where the defendant gave him a dollar bill but was told that he would have to come back inside the store for his change. The defendant followed Patrick back inside the store and was described as being “loud and staggering like he was drunk or crazy and was hollering for his money.” At that time Patrick advised the defendant “to take your dollar and I will call the police and get you off the street before you get in any trouble or hurt somebody.” The reply of the defendant, according to Patrick’s testimony, was “call the police, the Marines, the Army, or anybody. I’ll be out here waiting. . . ” (Emphasis supplied). The defendant then went outside the store and began pacing up and down the shopping center in an agitated mood while sipping beer. Mr. Patrick further testified that when Officer Key arrived, Key asked Patrick “ . . . to go down and show him who was causing the disturbance.” At that time the defendant was still uncooperative, unruly, and refused to obey the officer’s commands.

In its brief, the state cogently argues that “[T]he facts clearly justified a stop and temporary detention for investigatory purposes and, under the circumstances, a ‘pat-down’ of Caldwell’s outer clothing was reasonable. It appears the defendant was a keg of dynamite with a two-inch fuse simply looking for an excuse to explode.” Thesis of the state’s argument is that the refused instructions D-9, D-10, and D-ll did not embody all of the criteria “necessary for a factual resolution of the lawfulness of the officer’s conduct. They were consequently misleading and foreclosed from the jury’s consideration an evaluation of Officer Key’s actions from the standpoint of a stop and temporary detention rather than an attempt at the moment to effect an arrest.”

We think there is merit to the position taken by the state because under our deci-sional law, the jury could have found that Policeman Key was not intending to arrest the defendant but was merely making a reasonable investigative stop. In discussing such temporary stops, we stated in Singletary v. State, 318 So.2d 873, 876 (Miss.1975) that:

(2) Investigative stop and temporary detention: To stop and temporarily detain is not an arrest, and the cases hold that given reasonable circumstances an officer may stop and detain a person to resolve an ambiguous situation without having sufficient knowledge to justify an arrest; (3) Arrest: An arrest may be made only when the officer has probable cause. (318 So.2d at 876). (Emphasis supplied).

Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) is a case wherein the Supreme Court of the United States discussed reasonable cause for a stop and frisk action by a peace officer. Here the High Court stated:

A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Terry v. Ohio, 392 U.S.] [1] at 21-22, 88 S.Ct. [1868], at 1879-1880, [20 L.Ed.2d 889]; see Gaines v. Craven, 448 F.2d 1236 (CA9 1971); United States v. Unverzagt, 424 F.2d 396 (CA8 1970).
(318 So.2d at p. 877).

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court of the United States also recognized that a stop and frisk confrontation may be ■justified by circumstances which would not justify a “traditional arrest.” As stated by us in Singletary v. State, 318 So.2d 873 (Miss.1975):

The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence, and thus the frisk for weapons might be equally necessary and reasonable, whether or not carrying a concealed weapon violated any applicable state law. So long as the officer is entitled to make a forcible stop, and has reason to believe that the suspect is armed and dangerous, he may conduct a weapons search limited in scope to this protective purpose. [392 U.S.] at 30, 88 S.Ct. [1868] at 1884.
(318 So.2d at p. 887). (Emphasis supplied).

Therefore, we conclude that upon this record it is clear that Officer Key, the victim of the defendant’s firing of his pistol, if not justified in arresting the defendant (and this is not necessary to be decided here) certainly had a right to temporarily detain the defendant as a “stop and frisk.” We think that Policeman’s Key’s action was proper where so recently the defendant had suggested that Patrick call the police, Marines or Army (while he waited), and surely under those circumstances the defendant should have reasonably expected action including intrusion and detention by some law officer. The testimony would have justified a jury finding that Key was doing no more than making a stop and frisk of the defendant when the defendant drew his pistol and began firing at the officer. In addition to being unduly peremptory in form, the rejected instructions excluded from the consideration of the jurors their right to find that Officer Key (although he may not have been conducting a lawful arrest) was doing a lawful act: effectuating a “stop and frisk” of the defendant. The controversial instructions rejected by the trial court made no distinction whatever as between Officer Key’s possible lawful right to arrest the defendant or to make a stop . and frisk detention. They are premised upon a presupposition that Officer Key was acting outside the law throughout the entire episode in which he was killed. Instruction D — ll’s effect is to require the jury as a matter of law to find that the alleged attempted warrantless arrest constitutes an “unlawful act” without Key advising the defendant that he was under arrest. The mere absence of a warrant and the mere lack of advice being given to the defendant that he was being arrested did not make Officer Key’s action “an unlawful act” per se because, as stated above, the jury could have found that his actions were a lawful “stop and frisk” action rather than any attempted arrest.

The defendant also argues that the trial court erroneously granted Instruction S-3 (referred to as S-l in appellant’s brief) at the guilt phase because “ . . .it was error for the trial court to instruct the jury concerning capital murder. . . .’’At the trial level the only objection to the instruction was that it constituted a “murder” instruction. There is no merit to this part of the argument on the record as made.

Last argument made is that

THE TRIAL COURT ERRED IN REFUSING TO GRANT APPELLANT’S MOTION FOR A DIRECTED VERDICT, MOTION FOR A PEREMPTORY INSTRUCTION OF GUILTY [sic] AND MOTION FOR A NEW TRIAL.

Our view of the record is that the testimony made out a case sufficient to give to the jury and therefore there can be no merit to the defendant’s contention that he was entitled to a directed verdict or peremptory instruction.

We note that the record in the trial of this cause consists of three volumes whereas the previous trial record contained only two volumes (347 So.2d 1389). Our previous opinion states that an instruction on manslaughter was properly refused, and then we stated that the record established “either murder or killing in self-defense.” At the former trial, a manslaughter instruction (D-8) was sought upon the theory that the defendant killed Officer Key “in the heat of sudden passion.” Other instructions at the former trial (D-7) and an un-num-bered instruction were premised upon the thesis that the defendant anticipated that Officer Key had intention of killing him or inflicting some physical harm upon him. It was in that context that our previous opinion held that the issue was that of murder or self-defense, but in the instant case consisting of three volumes the issue of manslaughter is raised by the record in a different posture from the former record. Here manslaughter is premised upon the purported unlawful act of Officer Key and not upon “sudden heat of passion” theory formerly espoused. The prior brief makes no mention of Mississippi Code Annotated § 97-3-31 (1972) on “unnecessarily” killing another, which is now argued as the basis of defendant’s theory of manslaughter. Upon the record as made in this case the defendant was entitled to present to the jury an instruction on the theory of “unnecessarily” killing Officer Key while Officer Key was allegedly in the act of committing or attempting to commit some unlawful act. Therefore, upon remand, depending upon the record as then made, appropriate instructions may be given on this issue but they should not exclude from the jury consideration of whether Officer Key was taking a lawful “stop and frisk” action.

On account of the trial court allowing the state to peremptorily challenge a juror whom both sides had already accepted, reversal is required.

REVERSED AND REMANDED.

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

SUGG, J., takes no part.


author: LEE, Justice,

text:
    Glen TAGERT v. Barbara TAGERT.
    No. 51721.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.

      Lawrence C. Gunn, Jr., Hattiesburg, for appellant.
    Emory E. Morgan, Columbia, for appel-lee.
    Before ROBERTSON, WALKER and LEE, JJ.
   LEE, Justice,

for the Court:

Glen Tagert filed suit in the Chancery Court of Marion County against Barbara Tagert, his former wife, seeking specific performance of a written instrument [See Appendix] dated November 11, 1975, executed by the Tagerts. At the conclusion of the evidence, the trial court dismissed the bill of complaint, and Glen Tagert appeals. We affirm.

The question presented is whether or not the lower court erred in declining to grant specific performance and in dismissing the bill of complaint.

Appellant and appellee were married September 15, 1956, and two children were born of the union. Difficulties arose between them, a separation occurred, and, on November 11, 1975, appellant took appellee to his attorney’s office where an instrument entitled “Property Settlement, Custody and Child Support Agreement” was prepared. The agreement was executed by them in the attorney’s office and it is the document upon which this suit is grounded. Paragraph (5) of the agreement stated:

“This agreement constitutes the entire agreement between the parties, and it is further agreed that the contents of this property settlement agreement shall be incorporated in any final decree entered by the Chancery Court of Marion County, Mississippi, provided same meets with the approval of the court.”

On November 12, 1975, the day after execution of the instrument, appellant filed a bill of complaint for divorce in the Chancery Court of Marion County averring habitual cruel and inhuman treatment on the part of appellee. He attached to the bill of complaint a copy of the November 11 agreement. Appellee employed an attorney, filed an answer denying the averments of the divorce bill, made her answer a cross-bill and sought use of the home in which she and the children lived, custody of, and support for, the children, certain personal, property, and other miscellaneous relief. She denied in the answer that the November 11, 1975 agreement was valid and binding, and alleged that it was a tentative agreement obtained by appellant through fraud, and she renounced and rejected same. The answer to the cross-bill simply denied its averments.

After a hearing on the merits, the court granted appellee a divorce and other relief prayed for, and dismissed the bill of complaint filed by appellant, together with the November 11, 1975 agreement exhibited thereto. The chancellor held in his finding of fact the following:

“That after negotiation the Cross-Complainant and Cross-Defendant have reached an oral agreement in regard to certain property, child custody, child support, attorney’s fee and related matters; and the Court further finds that said agreement is reasonable and should be ratified by the Court.”

Pursuant to that finding, the chancellor decreed the following with reference to the property involved in this cause:

“4. That the use and occupancy of the Marion County, Mississippi house and real property owned jointly by the parties hereto, be and the same is hereby awarded unto the Cross-Complainant; that the Cross-Defendant be, and he is hereby ordered and directed to pay the monthly mortgage notes on said property to First Federal Savings and Loan Association of Marion County, as and when said payments become due; that the Cross-Defendant be, and he is hereby ordered and directed to keep and maintain mortgage and hazard insurance on said property; that the Cross-Defendant be, and he is hereby ordered and directed to pay all property taxes on said Marion County property as and when the same become due; and that the provisions of this paragraph 4 shall continue in force until the minor children of the parties have married or until the said children have otherwise been emancipated.
5. That the use and occupancy of the Jefferson Davis, Mississippi house and real property owned jointly by the parties hereto, be and the same is hereby awarded unto the Cross-Defendant; that the Cross-Defendant be, and he is hereby ordered and directed to maintain hazard insurance on said property; that the Cross-Defendant be, and he is hereby ordered and directed to pay all property taxes on said property as and when the same becomes due; and that the provisions of this paragraph 5 shall continue in force until the minor children of the parties have married, or until the said children have otherwise been emancipated.
6. That the December 1975 rent of FIFTY DOLLARS ($50.00) on the Jefferson Davis County, Mississippi property be, and the same is hereby awarded unto the Cross-Complainant.”

No appeal was taken from the divorce decree, wherein the property involved here was disposed of, and that decree became final and binding upon the parties.

As an affirmative defense in the case sub judice, appellee asserted that the divorce decree, which adjudicated the real property of the parties, consisting of the home and six (6) acres of land in Marion County and one hundred (100) acres of land in Jefferson Davis County, to be the jointly-owned property of the parties, was res judicata of the issue.

Appellant testified at the specific performance trial that he had difficulty in reading and writing and that he did not fully understand the contents of the agreement. Appellee testified that she had no attorney at the time it was executed, that appellant’s attorney advised her she could reject same, if she resisted the divorce action, and that the agreement was a tentative one.

The appellant contends that the ground upon which the chancellor decided the case, viz, abandonment of appellant’s rights under the November 11, 1975 contract, was not pled as an affirmative defense, that the case was not decided upon the defense of res judicata and that judgment should be entered here for him.

Griffith, Mississippi Chancery Practice, Section 359, at 343-344 (2d ed. 1950) states:

“When an answer fairly conforms to the four requirements of fullness, certainty, responsiveness and consistency it is said to be sufficient; and, when it runs throughout in the negative it is, in general, true that the same measure of particularity is not required of it as is required of the bill. However brief and informal the answer may be, if it distinctly denies all and singular the material facts constituting the essential foundations of the suit it will be sufficient, such essential facts being thus put in issue, and this is true even if the denials be only on information and belief.”

The denials of appellee’s answer in the present case were sufficient to put in issue the existence, validity, or abandonment of the contract. The requirements for establishing specific performance are stated in Hutton v. Hutton, 239 Miss. 217, 119 So.2d 369, cert. den. 364 U.S. 834, 81 S.Ct. 67, 5 L.Ed.2d 60 (1960), wherein the Court said:

“This Court, in Welch v. Williams, 85 Miss. 301, 37 So. 561, observed that the general rule, in reference to the enforcement of specific performance of contracts, is that ‘the contract must be specific and distinct in its terms, plain and definite in its meaning, and must show with certainty that the minds of the parties had met and mutually agreed as to all its details upon the offer made, upon the one hand, and accepted upon the other. If any of these requisites be lacking, specific performance will not be decreed by a court of equity.” 239 Miss. at 230, 119 So.2d at 374.

The chancellor found that it was not necessary to reach the question of res judicata and whether the agreement was subject to specific performance, because there was never a meeting of the minds of the parties to the November 11,1975 agreement and no contract existed. He further found that the action of the parties subsequent to signing the agreement and prior to the present suit constituted an abandonment of the agreement, if one existed, and that the bill of complaint for specific performance should be dismissed.

In Broome Construction Co. v. Beaver Lake Recreational Center, Inc., 229 So.2d 545 (Miss.1969), the Court stated:

“Rights acquired under a contract may be abandoned or relinquished by agreement or conduct clearly indicating such purpose. Intent to abandon or rescind may be inferred from conduct of the parties which is inconsistent with the continued existence of the agreement. Mutual assent to rescind or abandon a contract may be manifested in other ways than by words.” 229 So.2d at 547.

We are of the opinion that the issue of rescission of the contract and abandonment of the contract was properly before the court, that the final divorce decree, was res judicata of the question here, although the chancellor did not base his decision upon that defense, and that the lower court was correct in entering judgment for the appel-lee. Therefore, the case is affirmed.

AFFIRMED.

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

APPENDIX

“IN THE CHANCERY COURT OP MARION COUNTY, MISSISSIPPI

GLEN TAGERT, COMPLAINANT )

)

VS ) CAUSE NO._

)

BARBARA TAGERT, DEFENDANT )

PROPERTY SETTLEMENT, CUSTODY AND CHILD SUPPORT AGREEMENT

STATE OP MISSISSIPPI)

)

COUNTY OP MARION )

WHEREAS, the undersigned, Glen Ta-gert, hereinafter referred to as complainant, and the undersigned, Barbara Tagert, hereinafter referred to as defendant, husband and wife, separated from each other on October 26, 1975, in Marion County, Mississippi, and having reached a settlement, accord and agreement, concerning all jointly owned property, child custody and support, it is, therefore, hereby covenanted and agreed between the parties as follows:

1. That complainant will convey to the defendant by warranty deed, subject to any encumbrances thereon, that dwelling house and residence located in the Cedar Grove Community in Marion County, Mississippi, and pay to the defendant the sum of Ten Thousand Dollars ($10,000.00), the proceeds of which are to be used to discharge that certain lien against the property owing to First Federal Savings and Loan Association of Marion County, which proceeds complainant shall obtain by way of a loan.

2. Defendant will convey to the complainant by warranty deed that certain 100-acre tract of land owned by both parties hereto in Jefferson Davis County, Mississippi, and defendant will make no further claim of any right, title or interest in said land, but does hereby agree to execute any deed of trust, if required of her by a lending institution for the purpose of complainant obtaining a loan as above stated, which shall be secured by a deed of trust on said 100-acre tract of land.

3. Complainant also agrees that there will be included in the deed to the defendant on said residence all the contents of the residence, and appurtenances thereunto belonging.

4. It is further agreed by and between complainant and defendant that the defendant shall have the permanent care, custody and tuition of said minor children, subject to the right of reasonable visitation by complainant at reasonable times and places, and it is further agreed that the complainant shall pay to the defendant the sum of Seventy-Five Dollars ($75.00) per month for each child, as child support until said children complete or leave high school.

5. This agreement constitutes the entire agreement between the parties, and it is further agreed that the contents of this property settlement agreement shall be incorporated in any final decree entered by the Chancery Court of Marion County, Mississippi, provided same meets with the approval of the court.

WITNESS OUR SIGNATURES in duplicate this the 11th day of November, A.D., 1975.

/s/ Glen Tagert

Glen Tagert, Complainant

/s/ Barbara Tagert

Barbara Tagert, Defendant

STATE OF MISSISSIPPI)

)

COUNTY OF MARION )

BEFORE ME, the undersigned authority in and for said county and state, this day personally came and appeared the within named Glen Tagert and Barbara Tagert, who acknowledged to me that they.signed, executed and delivered the above and foregoing instrument on the date therein named as their voluntary act and deed.

WITNESS MY HAND and official seal this the 11th day of November, A.D. 1975.

/s/ JAMES R. DAVIS

Notary Public

My Commission Expires Sept. 17, 1976 (Seal)”


author: BROOM, Justice,

text:
    ASTRO TRANSPORT, INC. v. Zequiel MONTEZ.
    No. 51736.
    Supreme Court of Mississippi.
    March 5, 1980.

      Mitchell, Eskridge, Voge, Clayton & Beasley, Claude F. Clayton, Jr., Tupelo, for appellant.
    Mitchell, McNutt, Bush, Lagrone & Sams, Guy Mitchell, III, Tupelo, for appellee.
    Before PATTERSON, BROOM and COF-ER, JJ.
   BROOM, Justice,

for the Court:

Tort action for property damage resulting from a traffic accident is the nature of this suit tried in the Circuit Court of Lee County. Astro Transport, Inc., the plaintiff (Astro herein) sued Zequiel Montez alleging that Montez’s negligence in operating a motor vehicle caused damages to Astro’s Ken-worth truck which was driven by one Lindsey. From a verdict and judgment for defendant Montez, plaintiff Astro appeals contending: (1) the evidence does not support the verdict, (2) erroneous evidentiary rulings were made, and (3) faulty jury instructions were given. We reverse.

The accident occurred November 12, 1975 on Interstate 40 (1-40 herein) near Biscoe, Arkansas. En route to Amarillo, Texas, Lindsey was driving Astro’s truck westerly on 1-40 when the truck came in contact with Montez’s truck which Montez had parked off the travelled portion of 1-40 on its “right-hand shoulder or southern side.” Astro alleged that Montez negligently

“[SJuddenly and without warning pulled his vehicle from the shoulder into the right-hand westbound lane of traffic in which plaintiff’s driver was proceeding.”

Other allegations are that Montez negligently: stopped in the emergency lane when there was no emergency, drove his vehicle for more than ten hours contrary to Federal Motor Carrier Safety Regulations, failed to maintain a proper lookout for other vehicles, and failed to yield the right of way to Lindsey.

Trial was according to Arkansas substantive law, and Mississippi (forum state) procedural law.

Montez cross-appealed and contends here that the lower court “erred in failing to sustain the motion to dismiss.” In his motion filed below Montez contended that in a previous trial of a companion case in the Circuit Court of Lee County, Mississippi (Montez v. Lindsey and Lucky Star Industries, Cause Number 14,394), a judicial determination was made by the court that Astro’s driver Lindsey was more than fifty percent at fault in the accident. Therefore, according to Montez, under the Arkansas Comparative Negligence Law, Lindsey’s negligence was imputed to Astro who was therefore “barred and collaterally estopped from bringing this present action.”

The record discloses that the truck driven by Lindsey was owned by Astro who leased it to another corporation, Lucky Star Industries, Inc. Lucky Star employed Lindsey, driver of Astro’s truck at the time of the accident. Montez in his brief argues that the two corporations Astro and Lucky Star are so closely related and interwoven that the corporate veil of Astro should be “pierced and the negligence of Lindsey imputed to Astro.” According to Montez,

“It was shown on a hearing on the motion to dismiss from the testimony of Mr. L. E. Gibens that both companies shared officers, stockholders, directors and that the stock of Astro Transport, Inc. was owned totally by a trust which also owned stock in Lucky Star Industries and the beneficiaries of the trust being the same persons who are officers, directors and stockholders of the other corporation, Lucky Star, Inc. In addition, it was also shown that the only business of Astro Transport at the time of the accident was to haul blue jeans manufactured by Lucky Star Industries, Inc. Additionally, the officers and directors of Astro served without compensation and that with one exception they were all salaried by Lucky Star Industries, and that the same people set policy for both corporations.”

Argument is that trial of the companion case resulted in a verdict adverse to Lucky Star which according to Montez in effect was an adjudication against Astro, the closely related corporation, and in favor of Montez who in the prior litigation was awarded a $5,000 jury verdict “for his damages against Lucky Star . . . and employee and agent Benjamin Douglas Lindsey”.

After considering the matter, the trial judge heard argument and a limited amount of evidence on Montez’s motion to dismiss. Then he ruled:

I just don’t believe that there is quite enough identity between Astro Transport and Lucky Star Industries to warrant the Court in sustaining the motion to dismiss . However, I don’t believe there is sufficient for me to sustain a motion to dismiss.”

Astro’s view on Montez’s motion to dismiss is that because at trial Montez (who raised the issue of res judicata) did not offer the pleadings and final judgment from the prior case, there is nothing before us to establish identity of: parties, subject matter, causes of action or issues. Pate v. Evans, 232 Miss. 6, 97 So.2d 737 (1957) held that one who defends on the theory of res judicata has the burden to prove such a defense. In Pate, we said:

“The existence and contents of a judgment, sought to be made available as a basis for the application of this doctrine, must be proved by offering in evidence the record, or a copy of it. Appellants did not do this. The reason for this requirement is that the plea must clearly show the issues and questions involved in the former proceedings, so as to demonstrate that those now presented existed in the former case and were adjudicated. Viator v. Stone, 201 Miss. 487, 29 So.2d 274 (1947). (232 Miss. at 15, 97 So.2d at 739).

Neither the abstract nor the record reveals that Montez offered into evidence the pleadings or the final judgment in the prior case in . which he contends that the issues now before us were previously litigated. Montez’s failure at the lower level to plead and prove his defense of res judica-ta by offering into evidence either the pleadings or judgment of the companion case leaves his cross-appeal without merit.

On direct appeal, Astro’s first argument is that the trial court “erred in striking portions of the deposition of the Arkansas Highway Patrolman on the basis that he was not certain about” to whom he was talking. The pre-trial deposition, taken at Montez’s instance, was offered into evidence as part of Montez’s case in chief. It appears that Montez was seeking to admit into evidence testimony of Patrolman Billy Davidson insofar as the testimony related to physical evidence concerning the scene of the collision. Examples of testimony which Montez sought to get to the jury by means of Davidson’s deposition were Davidson’s recollection as to the debris, distances, location of the vehicles and the like. Montez succeeded in having excluded the patrolman’s testimony (contained in the deposition) as to what the patrolman heard Mon-tez say at the scene of the accident after the patrolman arrived. According to his deposition, what the patrolman heard Mon-tez say at the scene was different from and in contradiction of Montez’s testimony at trial, and would corroborate the testimony of Lindsey, the driver of Astro’s truck. Stated differently, if Davidson’s deposition were admitted into evidence in its entirety, it would show that Montez stated one thing to Davidson before consulting any attorney, and then at trial Montez’s version of the accident was substantially different.

Cross-examination of Davidson by Astro’s attorney was, of course, a part of the entire deposition and during such cross-examination, the following exchange occurred:

“Q. Now, when you arrived at the scene, you talked to Zequiel Montez and another Mexican, I understand?
A. Yes, sir.
Q. Now, did you talk to Zequiel Montez about how the accident occurred?

MR. MITCHELL:

Let the record show that I have got a continuing objection about any conversations that were had unless it can be shown that all parties were present.
A. I couldn’t swear which one I talked to. I don’t know.

MR. CLAYTON:

Q. Let me ask you this. You talked to the driver of the Montez truck after the accident, didn’t you?
A. I believe so. But I’m not positive on it. I talked to one of them that was in the vehicle. I couldn’t say. I don’t remember. I’m sure I did, but — I would have had to gotten [sic] his driver’s license from him. I’m sure I talked to him.
Q. You talked to a male Mexican who was in the vehicle involved in the accident?
A. Yes, sir.”

Because of Davidson’s equivocation as to which Mexican, Montez or Nino, he talked to at the accident scene, prior to trial of this case on the merits, Montez moved in limine for exclusion (as hearsay) of any cross-examination testimony in the deposition relating to what Zequiel Montez was said to have told Patrolman Davidson.

It is true that Patrolman Davidson’s deposition testimony (offered in behalf of Mon-tez) at issue here, was equivocal as to whether Davidson at the scene of the accident talked to defendant Montez or to Jose Nino, driver of a truck just ahead of Mon-tez as they stopped on the 1-40 shoulder. Scrutiny of the deposition reveals the following: Davidson did state originally that he had talked to Zequiel Montez and another Mexican. In testimony subsequent to that indicating uncertainty about the identity of the person to whom he was talking, Davidson became specific in response to questions as to what “Zequiel Montez” told him, and also stated that he had talked to a male Mexican who was in the vehicle involved in the accident. It was conclusively shown in the trial below that Montez was the only male Mexican in the vehicle involved in the collision. Except for Jose Nino, no other male Mexican was at the scene. At one point in his testimony, a question propounded to Patrolman Davidson and his answer were:

“Q. Did Mr. Zequiel Montez tell you that he had stopped on the shoulder prior to the collision?
A. Yes, sir.”

Further, on re-direct, Montez’s attorney did not explore this doubt or uncertainty in Davidson’s mind. Montez’s attorney himself asked Davidson a question relating to “the Mexican-American who was the driver of the Montez vehicle.”

The view of appellee Montez is that “the trial judge simply determined that the testimony concerning the conversation was tainted by the original statement of the patrolman that he could not under oath identify the party making the alleged statement.” Montez’s brief further states that:

“Before a purported statement of a party is admissible against him, it is necessary to identify the declarant as the party making statement and admissions and declarations offered in evidence should be identified precisely and proven clearly.”
[29 Am.Jur.2d, Evidence, § 598 (1967)]. Omitted from the foregoing authority is a meaningful line. In actuality, 29 Am. Jur.2d, Evidence, § 598 (1967) states in pertinent part:
“In any event, before a purported statement of a party is admissible against him, it is necessary to identify the declarant as the party, although this may be done by either direct or circumstantial evidence. Admissions and declarations offered in evidence should be identified precisely and proved clearly.” (Emphasis added).

The authority relied upon by Montez makes it clear that the identity of the declarant may be established by circumstantial evidence. It is clear to us that when Patrolman Davidson made the statement that he could not swear which Mexican he was talking to, the substance of his statement was that he was not familiar with their names. Nevertheless, his testimony establishes his positive identification of the person he was talking to as “the male Mexican driver of the Montez vehicle.” The equivocation aspect of Davidson’s testimony relative to the identity of the person to whom he was talking goes to the weight and worth of his testimony rather than to its admissibility. Under our rule, resolution of the weight and credibility to be accorded Davidson’s testimony was for the jury (not the trial judge) to resolve. The New Orleans, Jack son and Great Northern Railroad Company v. Echols, 54 Miss. 264 (1876); Martin v. Illinois Central Railroad Co., et al., 246 Miss. 102, 149 So.2d 344 (1963).

It is not without significance that the controversial deposition was taken at Mon-tez’s instance; he sought its introduction as a portion of his case in chief; and the defendant Montez and Jose Nino were present in court, and both testified. Both stated that they had never made statements to the highway patrolman that were attributed to one or the other of them by Patrolman Davidson. In such a posture of the record, we hold that Patrolman Davidson’s identification of Montez as the declarant of certain statements made to Davidson would go to the weight of such evidence — not to its admissibility.

As is often true of litigants in trial, Montez’s and Lindsey’s testimony was highly conflicting and contradictory. Noteworthy is the fact that Montez’s recollection of events as revealed to Patrolman Davidson (reflected in Davidson’s deposition) were in several respects consistent with Lindsey’s (Lucky Star’s driver) version of the accident. According to Davidson’s deposition, Montez had told him that he had been parked approximately 65 feet from the scene of the accident but during the trial Montez testified that he had travelled approximately a mile. According to the deposition, Montez had told Patrolman Davidson that when he pulled out into the lane in which Lindsey was travelling he (Montez) had just got straightened out and there was no emergency. These statements were contradictory to and not consistent with Mon-tez’s testimony at the trial and therefore were properly admissible into evidence.

Upon this posture of the record, we think that the portions of Davidson’s testimony (contained in his deposition) which were excluded should have gone to the jury along with the remainder of the deposition. Resolution of the conflicts and inconsistencies was an appropriate jury function; accordingly we hold that exclusion of parts of the deposition constituted reversible error.

The second proposition argued by the appellant Astro is that “the court erred in not granting the peremptory instruction requested by the plaintiff.” After Astro filed its original declaration in this matter, Mon-tez answered denying all of the allegations of negligence contained in the declaration. Subsequently, with leave of the court, Astro filed an amended declaration, alleging two more acts of negligence on the part of Montez. These additional acts of negligence were charged in the amended declaration, but the amended declaration did not allege that the collision was caused by or proximately resulted from the additional acts of negligence. Montez did not file an additional answer, therefore leaving unde-nied the two additional acts of negligence as alleged in the amended declaration.

Now Astro says that under Mississippi Code Annotated § 11-7-59(2) (1972), it was entitled to a peremptory instruction for failure of Montez to file any answer to the amended declaration. Although we think under good practice Montez should have filed an additional answer, upon the posture of the record before us, we do not believe on this ground Astro was entitled to a peremptory instruction. Montez’s original answer denied all acts of negligence charged against him in the original declaration; he affirmatively charged that the accident in question was the result of the acts of negligence committed by Astro’s driver Lindsey. When the cause was called for trial, Astro did not in any way challenge Montez’s right to put on proof for failure to answer the amended declaration; Astro chose to put on its case. After Astro rested its case then Montez put on his proof and after both sides rested Astro moved for a peremptory instruction based upon Montez’s failure to deny in writing the allegations of the amended declaration. Montez relies upon our statute of jeofails, Mississippi Code Annotated § 11 — 7-167 (1972), which in effect says that “any misleading, insufficient pleading,” etc. will not be grounds for a judgment on the pleadings. We are unpersuaded because we do not believe the statute of jeofails is applicable here. Nevertheless, upon the posture of the pleadings and record where Astro made no challenge to the right of Montez to put on his proof, and after waiting until Montez put on his proof, we do not believe the trial court committed reversible error by failing to grant Astro a peremptory instruction.

Another argument advanced by As-tro is its contention that the court erred “in instructing the jury that Benjamin Lindsey had a duty to avoid a collision with the defendant’s vehicle without regard to the conduct of the defendant.” Specifically, Astro argues that Instruction D — 1 placed no burden upon Montez to “drive in accordance with the rules of the road.” Appellee, on the other hand, contends that the language in the instruction that the Montez vehicle was “properly on the highway proceeding in the outside westbound lane of Interstate 40” sufficiently instructed the jury that Montez was duty bound to operate his vehicle in accordance with the rules of the road. Astro contends that it is possible to be “properly” on the road without obeying the rules of the road. At retrial, instructions in this regard should not include the language “properly on the road” —rather the instruction’s language should be something like “drive in accordance with the rules of the road.” Nevertheless, we do not believe the deficiency, if any, in the instruction complained of amounts to reversible error. Other instructions considered in their entirety adequately instructed the jury.

Last argument made by Astro is the contention that the jury verdict was against the overwhelming weight of the credible evidence. Although the case is being reversed and remanded on other grounds, we deem it appropriate to note that in our opinion there was sufficient evidence to create a jury issue.

REVERSED AND REMANDED.

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

      . Language from the original declaration. The right-hand shoulder would be the North side of the west-bound lanes.


author: PATTERSON, Chief Justice,

text:
    ALABAMA GREAT SOUTHERN RAILROAD COMPANY and the Southern Railway Company v. Burl H. McVAY, d/b/a McVay Oil Company.
    No. 51653.
    Supreme Court of Mississippi.
    March 5, 1980.
    Rehearing Denied April 2, 1980.

      Roberts & Easterling, M. M. Roberts, Hattiesburg, for defendants-appellants.
    Zachary & Gillespie, Dave A. Matison, III, Hattiesburg, for plaintiff-appellee.
    Before PATTERSON, C. J., and BROOM and COFER, JJ.
   PATTERSON, Chief Justice,

for the Court:

Burl McVay obtained a verdict in the Circuit Cvurt of Forrest County for $9,196.86 against the Alabama Great Southern Railroad Company and the Southern Railway Company for diesel fuel he had delivered to them. The Court entered a $9,196.86 judgment for McVay. However, when Southern thereafter moved for judgment notwithstanding the verdict, the court, upon reconsidering its previous denial of a peremptory instruction in favor of McVay, entered on its own motion a reduced judgment of $8,916.04 for McVay.

The railroad companies (hereinafter Southern) appeal, contending (1) there was no enforceable contract between Southern and McVay, (2) Southern purchased in good faith from Bonanza Oil Company, not McVay, (3) McVay’s conduct estops him to deny that he was an agent of Bonanza, and (4) various procedural errors vitiate the judgment. We reverse and remand to the Chancery Court of Forrest County.

The scarcity of fuel resulting from the OPEC cartel embargo prompted Southern to seek additional sources of diesel fuel to augment supplies under long-term contracts with large oil companies. Neil Coggins, the assistant vice-president for Southern in Washington, received a letter from Bonanza Oil Company of Mobile, Alabama suggesting the availability of diesel fuel. Coggins flew to Mobile to discuss the matter with one Whitehead who had contacted him on behalf of Bonanza. He concluded that Bonanza Oil Company was credible inasmuch as Whitehead had assured him “eyeball to eyeball that he knew the market place.” Coggins agreed that Southern would purchase a large quantity of diesel fuel with Whitehead of Bonanza acting “kind of like a broker” for supply.

Thereafter, Southern purchased approximately 2,000,000 gallons of diesel fuel from Bonanza in two transactions, approximately 300,000 gallons of which were to be delivered in Mississippi, a state in which Bonanza had no tax number. Coggins indicated he neither knew the significance of the tax number nor whether Bonanza had one, testifying he was satisfied with Whitehead’s assurances and what he described as the “good price” asked by Bonanza. (Bonanza’s price, 27l/2<p per gallon, did not exceed that charged by Southern’s major oil suppliers on long-term contracts for delivery of 100,-000,000 gallons or more per year, fifty times the quantity to be supplied by Bonanza on “spot transactions” negotiated during the oil embargo.)

Unfortunately, Bonanza went out of business, Whitehead went to jail, and McVay, who delivered 28,082 gallons of fuel to Southern, met its defense that it had paid Bonanza $7,722.55 for the same oil and would not pay again. McVay spoke with Whitehead only twice, each time by telephone. The first conversation was on December 16, 1974, when Whitehead contacted McVay and indicated Southern needed diesel fuel at its Meridian yard. McVay did not commit himself to deliver the fuel and upon investigating Bonanza discovered it had no Mississippi tax number or permit. McVay then called Whitehead and declined to deal with him, giving as his reason the “unacceptable price” asked and the lack of a Bonanza tax number in this state. McVay explained the absence of a tax number required a higher price to be charged to an unbonded out-of-state distributor.

Through these conversations McVay undoubtedly discovered that Bonanza had some arrangement with Southern to supply it with fuel, but nothing indicates he knew the aggregate needed in Meridian for December delivery. The quantity delivered does not appear in Southern’s purchase order to Bonanza, nor in any writing prior to December 19, 1974.

Aware of the need and unwilling to do business with Bonanza, McVay delivered 28,082 gallons of diesel fuel to Southern in Meridian without contacting Southern. Remarkably, no evidence indicates whether this unarranged delivery by McVay would have been considered unorthodox among fuel jobbers during the 1974 fuel crunch.

McVay’s driver tendered a delivery ticket to Southern concurrent with the delivery. It bears the name “McVay Oil Company” and is dated December 19, 1974, with an acknowledgment of delivery by Southern through S. P. Hicks, Jr. and Johnny Brown. Hicks, foreman of car repairs for Southern at Meridian, described himself as their “number one man” in the area, and Johnny Brown appears to be their storehouse clerk in that city. Above Brown’s signature on the ticket there is written “Southern Railroad Company reg. mat. mgr.” (regional material manager). Brown described his duties, saying, “I’m the one that’s more or less in charge of shipping and receiving. . ” He explained he used the Southern material manager stamp frequently and forwarded stamped documents to Southern’s Birmingham, Alabama office.

McVay testified he mailed an “extended invoice” to the Southern Railroad yard, 38th Avenue and Railroad Street, Meridian, Mississippi, on December 19, 1974. The invoice added the price to the bare quantity exhibited on the delivery ticket previously tendered to Southern agents. Identical to the original ticket except for the added figures, it was composed upon one of the copies obtained by McVay following delivery of the fuel.

Apparently, the extended invoice never reached Southern although it was correctly addressed to Southern’s Meridian yard where it had done business for seventy-five years. It seems the “extended invoice” may have gone undelivered because Southern’s post office box number was not included. The evidence is uncontradicted that the invoice was mailed by McVay as it is also uncontradicted by Southern’s agents that it was never received. Be this as it may, McVay testified he for several days did nothing further toward renewing his demand, because he didn’t expect payment until some thirty days or so after delivery. He added that before sending a letter of January 29, which Coggins construed as a demand for payment, he spoke with Hicks, asking why payment had not been made and then referred to Brown, who referred him to Sitton, another Southern agent, who acknowledged “somebody ought to pay” and promised to get back in touch with him. However, Sitton died before he did so, and eventually McVay was referred to Coggins.

In the course of these events, McVay learned the post office box number of Southern’s Meridian yard and mailed his letter of January 29 to that address. After it was received, he again talked with Southern representatives. Coggins then learned of McVay’s plight and assured him that he would intercede on his behalf in an attempt to persuade Bonanza to make payment. McVay however, sought more than intercession, claiming then as now, without contradiction, that he never became an agent for Bonanza, because he had declined to engage in the oil transaction with it.

Southern defended against McVay’s suit by introducing a copy of the Bonanza invoice of December 20, 1974, to Southern which refers to the fuel delivered on December 19, 1974, including the exact quantity and delivery ticket number. Bonanza’s deftness in making it appear that it was entitled to payment is clear although it leaves a puzzling circumstance which arises from McVay’s undisputed testimony that he had no contact with Bonanza about the fuel except the two telephone conversations with Whitehead. Just how Bonanza obtained the information leading to prompt payment remains a mystery as does MeVay’s motivation to deliver a quantity of fuel to Southern without previous communication. In any event, on December 26, 1974, Southern paid Bonanza $7,722.55.

Coggins conceded he didn’t know who owned the fuel when payment was made to Bonanza. He admitted he could have easily found out who delivered it before payment, but did not, because “the only thing we were interested in was that the oil was received. We didn’t care who delivered the oil.” He concluded McVay’s delivery ticket of December 19 indorsed by Brown and Hicks was not an invoice, but in responding to the question, “What would have been the purpose of putting the tax number on this attachment if it were only a delivery ticket?,” answered, “No reason at all.” He added that normally a delivery ticket of this kind was also received from Southern’s major suppliers such as Standard Oil. Whitehead’s behavior and apparent “judgment proof” condition has thrust upon the courts the difficulty of deciding which of two more or less innocent parties should suffer the loss.

When McVay delivered his fuel, Southern agents received and signed the unextended invoice omitting price but including quantity. This constituted conduct “sufficient to show agreement,” assuming the actual or apparent authority of Hicks and Brown together to receive fuel without prior direction from Southern’s Washington office. See Miss.Code Ann. § 75-2-204 (1972); Squillante & Fonseca, 1 Williston on Sales §§ 7-2 and 7-3 (4th Ed. 1974). The law supplies a reasonable price in the absence of an agreement. Miss.Code Ann. § 75-2-305(1) (1972); Squillante & Fonseca, supra at § 9-2. The parties in this case reached no agreement as to price, because McVay’s “extended invoice” never reached the attention of any Southern agent. Some evidence suggests the amount ultimately awarded by the court, $8,916.04, constituted a reasonable price in the trade. This amount, $280.82 less than the amount found by the jury, equaled McVay’s cost, according to his testimony. However, whether Southern could justifiably regard Bonanza rather than McVay as the seller is a distinct matter treated below in connection with the appellant’s estoppel argument.

As for the issue of good faith purchase, nothing in the record shows the existence of any “transaction of purchase” between McVay and Bonanza. Bonanza had no title whatsoever to the fuel delivered by McVay, either voidable or otherwise. Having no title, it could pass none, at least in the absence of some “entrusting,” which clearly did not occur in this case. Southern received McVay’s fuel directly from McVay. Therefore, Mississippi Code Annotated section 75-2-403 (1972) has no present application. See gen. Squillante & Fonseca, supra, at §§ 23-13 and 23-14.

Nor does the statute of frauds bar McVay’s recovery. His unextended invoice received by Southern agents with the delivery constitutes “some writing sufficient to indicate that a contract for sale has been made between the parties . . . .” The invoice was “signed by the party against whom enforcement is sought or by his authorized agent or broker.” Only the quantity term is crucial to the sufficiency of the writing. Squillante & Fonseca, supra at §§ 14-6 and 14-7. Here the quantity of fuel delivered appeared on the face of the unextended invoice. Even if the unextend-ed invoice had not met the formal requirements of subsection (1) of Mississippi Code Annotated section 75-2-201 (1972), a contract formed by the parties’ conduct could nevertheless be enforced under subsection (3)(c), which states that enforceability will not be denied to the extent that “goods . have been received and accepted . .” Moreover, the statute of frauds did not constrain quasi contractual recovery, and again apart from the estoppel issue, the $8,916.04 award could be sustained as such.

As we have said, the trial court set aside the judgment on the jury’s verdict and belatedly, on its own motion, granted McVay’s previous motion for a peremptory instruction when Southern challenged the verdict through motions for judgment notwithstanding the verdict, for correction of judgment, and in the alternative for a new trial. According to our authorities, a motion for a peremptory ruling should only be granted when the evidence and any reasonable inferences arising from it, when viewed in the light most favorable to the non-moving party, is such that reasonable minds cannot differ as to the legal sufficiency of the claim or defense asserted. Paymaster Oil Mill Co. v. Mitchell, 319 So.2d 652 (Miss.1975).

From the totality of the evidence, we think reasonable minds could logically infer that McVay should have realized Southern might justifiably have believed he acted for Bonanza and further that Southern would likely pay Bonanza in reliance upon its belief. These potential inferences, we think, raise a triable issue of fact as to whether McVay could have been treated as an agent of Bonanza by estoppel. We therefore hold the trial court erred in belatedly granting McVay’s motion for a peremptory instruction.

Restatement (Second) of Agency, section 8B (1958), reads in part as follows:

(2) An owner of property who represents to third persons that another is the owner of the property or who permits the other so to represent, or who realizes that third persons believe that another is the owner of the property, and that he could easily inform the third persons of the facts, is subject to the loss of the property if the other disposes of it to third persons who, in ignorance of the facts, purchase the property or otherwise change their position with reference to it.
(3) Change of position, as the phrase is used in the restatement of this subject, indicates payment of money, expenditure of labor, suffering a loss or subjection to legal liability.

We approve of this statement, but emphasize that one may be held an agent by estoppel only when from all of the circumstances he realizes or should realize the substantial likelihood that the party suffering the loss will justifiably rely on the tacit representation of agency arising from his conduct. If reliance is only possible, or if reliance is not justifiable in view of the circumstances, including the degree of care exercised by the party suffering the loss, agency by estoppel should not be found to come into play. Cf. Restatement (Second) of Contracts § 90. In sum, the question on remand is whether McVay should have realized his conduct was substantially likely to cause Southern reasonably to mistake the party entitled to payment.

We think the Chancery Court of Forrest County to be the appropriate court to resolve this factual issue. Therefore, indulging the authority conferred by Mississippi Constitution (1890) section 147, we remand to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

Appendix to follow.

APPENDIX

DEFENDANT EX.

WITNESS. yilk-. "SuaJI V.- 7^

JUM .3 0 1976

McVAY OIL COMPANY

P. 0. BOX 1611

HATTIESBURG, MISS. 39401

Batty H. Sherrill, Reporter

January 29, 1975

Southern Railway Yard

P. 0 Box 485

Meridian, Miss.

Attention:

Mr. R. B. Adams

Dear Sir:

After my telonhono conversation v/dth Mr. Hicks and Mr. Brown this. A- M., I am convinced that you did not receive my invoice on this fuel. However, Mr. Brown ha3 the original in his file, but it had not been extended at the time of delivery. This is a copy of my invoice. If you need any further information, call mo at 544-1382.

Yours truly

      . See Appendix.

      . See Appendix.

      . See Appendix.

      . See Appendix.


text:
    James R. SIMS and Wife, Evelyn Sims v. Charles E. DOUGLAS, Patricia S. Douglas and Vivian Douglas.
    No. 51674.
    Supreme Court of Mississippi.
    March 5, 1980.
    Huggins & Brown, Winn Davis Brown, Jr., Southaven, for appellants.
    Austin & Branan, D. Pace Branan, Her-nando, for appellees.
    Before PATTERSON, BROOM and COF-ER, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from a decree of the Chancery Court of DeSoto County. At the close of the complainants’ case, the court sustained defendants’ motion to dismiss. Aggrieved, the complainants appeal and assign as error, among other things, the pleadings and proof made a case for specific performance of a contract.

Charles Douglas and Patricia S. Douglas were divorced in June 1976. Incorporated into the divorce decree was a separation agreement by which the divorcing parties agreed to sell their residence in DeSoto County and equally divide the proceeds. To fulfill this agreement, they listed the property for sale with Riverwood Realty Company, Robert Dickey, real estate agent, in the latter part of July or the first part of August 1976.

On August 6,1976, Patricia Douglas, then divorced, quitclaimed her interest in the property to her former husband. The real estate agent thereafter attempted to sell the property by showing it to prospective purchasers, including James R. Sims and his wife Evelyn. After more thoroughly inspecting the property, they decided to purchase it. Pursuant to this decision, a contract of sale was consummated on September 4, 1976, between Mr. and Mrs. Sims and Charles Douglas. It was also signed by his former wife Patricia, because she held a lien upon it. Robert Dickey, the real estate agent, also subscribed to the contract to acknowledge payment of earnest money by Mr. and Mrs. Sims. This agreement was promptly filed for record in DeSoto County.

On August 30, 1976, Charles Douglas married his present wife Vivian. The fact of remarriage was unknown to Mr. and Mrs. Sims, as well as the real estate agent, when the sale contract was made on September 4, 1976. The contract contained, together with appropriate language for sale and purchase, the following paragraph:

It is specifically understood and agreed that the Seller is responsible for loss by fire, Act of God, or any other casualty until the time of final settlement.

On September 22, 1976, the subject property was destroyed by fire.

On September 27 and October 28, 1976, Mr. and Mrs. Sims in writing requested Charles Douglas to carry out the terms of the contract of sale. On both occasions Douglas refused to comply with the contract even though it was undisputed that the Sims were ready, willing and able to abide by it. The Douglas’ defense to the suit for specific performance was that he had remarried prior to entering into the contract, thereby creating a homestead interest in his wife, and since she had not signed it, the contract was vitiated.

The complainants in presenting their evidence, attempted to introduce the agreement between Douglas and Riverwood Realty Company, but an objection of the defendants was sustained upon the basis that it was beyond the scope of the pleadings. An examination of the bill of complaint reveals that it was pleaded and the answer discloses that Douglas acknowledged that he had listed the property for sale with the realty company. He relies only upon the asserted homestead right of his present wife to defeat the contract.

In our opinion, the trial court erred in sustaining the objection to the evidence mentioned. More importantly, the court erred in ruling, upon the motion to dismiss the bill of complaint, that Douglas’ present wife had a homestead interest in the property superior to the previous agreement for sale.

Unfortunately, the case of Minor v. Interstate Gravel Co., 130 Miss. 553, 94 So. 3 (1922), was not called to the trial court’s attention. In it, Brown Minor and his mother, Mrs. M. L. Minor, were the owners in common of eighty acres of land. They executed a lease and an option to sell to Interstate Gravel Company for an agreed price of $3000. Thereafter, in accord with the option, Minor and his mother executed a warranty deed to Interstate. However, between the date of the option to sell and the date of the warranty deed Brown S. Minor had married and moved upon the land, occupying it as a homestead. It appears the wife did not join in the warranty deed, thereby motivating Minor and his wife to later claim the deed was void. The issue presented to the court was whether the deed executed by Minor and his mother was valid without the signature of his wife. The Court held as follows in determining that issue:

The deed to the homestead, unsigned by the wife, would be void under the said section 2159, unless the contract of option, duly executed and recorded prior to the marriage and occupancy of the land as a homestead, is superior to the after-acquired homestead exemption.
We think the position taken by appellant is untenable, for the reason the option to purchase, given by appellant Minor at the time when he was single and competent to convey the land, was a covenant running with the land, which was valid and enforceable before or after it became a homestead.
He contracted to sell the land while it was not a homestead, and the covenant to sell ran with the land. Therefore the subsequent homestead right acquired by the wife was subject to the covenant to sell which existed before the land became a homestead; consequently the effect of the deed signed alone by appellant Minor was to convey the land as of the date of the contract of option to purchase, which was in April, 1919, when the land was not a homestead. .
(130 Miss. at 563-64, 94 So. at 5)

See also Flowers v. Vinton Lbr. Co., 203 Miss. 420, 35 So.2d 300 (1948); Felder v. Felder’s Estate, 195 Miss. 326, 13 So.2d 823 (1943); and Smith v. Smith, 193 Miss. 201, 8 So.2d 461 (1942).

In accord with these authorities, we are of the opinion the trial court erred in not permitting into evidence the agreement between Douglas, then single, and the real estate agency listing the property for sale, and erred in concluding the present wife of Charles Douglas had a homestead interest in the property superior to the previous contract concerning the subject property.

REVERSED AND REMANDED.

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