author: WALKER, Presiding Justice,

text:
    Martha WEATHERFORD, et al. v. Lequita Jerry MARTIN, Laura Jo Edwards, Martha Nell Johnson, Helen B. Nicholson and Ludell Allen.
    No. 53331.
    Supreme Court of Mississippi.
    Aug. 4, 1982.
    Rehearing Denied Sept. 8, 1982.
    Pope & Pope, Moran M. Pope, Jr., Hat-tiesburg, for appellants.
    Parsons & Matthews, Thomas M. Matthews, Jr., Wiggins, for appellees.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Chancery Court of Forrest County, Mississippi, wherein five separate suits, brought by five teachers of the Hattiesburg Municipal Separate School District against the Trustees and Superintendent of the District were consolidated for trial. From a decision of the Chancery Court modifying the salary portion of the contracts to increase the gross salary of each teacher, the Hatties-burg Municipal Separate School Board appeals.

The facts of this case are not disputed by the parties. The appellees, Lequita Jerry Martin, Laura Joe Edwards, Martha Nell Johnson, Helen B. Nicholson and Ludell Allen (hereinafter teachers) brought suit in the Chancery Court of Forrest County, Mississippi, against the Hattiesburg Municipal Separate School District (hereinafter district) seeking the court to modify and correct the contracts they executed for the school year of 1979-1980. The teachers claimed that their salaries had not been properly computed by the Superintendent of Education and that the minutes of the school board had been misinterpreted.

The district contended that the teachers had notice of the district’s policies with respect to requirements for receiving local supplements to their salary and that the teachers’ gross salaries were properly calculated based on long-standing district policy. The requirements for earning local supplements to their salary were published in a “Teacher’s Handbook” which were admittedly given to every teacher in the school system. All five of the teachers in this case knew of the policy requirements but did not understand it or agree with it.

Schedules for local salary supplements were adopted by the school board but were not accompanied by the policy of the district applying the schedules. However, the salary schedule and policies of interpretation were included in the “Teacher’s Handbook,” which had been published by the school board for many years. The Handbook was generally recognized by teachers in the system as the official school policy.

The district had the authority to create additional incentives for teachers to receive local supplements and these same teachers were either actually or constructively aware of the requirements and policies with respect thereto of the district when they executed their contracts for the 1979-1980 school year.

Moreover, absent mutual mistake, fraud and illegality, the courts do not have the authority to modify, add to, or subtract from the terms of a contract validly executed between two parties. United States Fidelity & Guaranty Co. v. Gough, 289 So.2d 925 (Miss.1974); Citizens National Bank of Meridian v. L. L. Glascock, Inc., 243 So.2d 67 (Miss.1971); Travelers Indemnity Co. v. Chappell, 246 So.2d 498 (Miss.1971); Employers Mutual Casualty Co. v. Nosser, 250 Miss. 542, 164 So.2d 426 (1964); Phenix Ins. Co. v. Dorsey, 102 Miss. 81, 58 So. 778 (1912). None of those elements were present here.

In conclusion, we hold that since the teachers had sufficient knowledge of the policies of the district and that they knowingly entered into a valid teaching contract with the district, they cannot now assert that the courts of this State should reform, modify, amend or interpret a contract which was unambiguous. See also Hartford Fire Ins. Co. v. Associates Corp., 313 So.2d 404 (Miss.1974); United States Fidelity & Guaranty Co. v. Gough, 289 So.2d 925 (Miss.1974).

Therefore, the decree of the chancery court modifying the contracts of Lequita Jerry Martin, Laura Joe Edwards, Martha Nell Johnson, Helen B. Nicholson and Lu-dell Allen with the Hattiesburg Municipal Separate School District for the 1979-1980 school year is reversed and the original contracts reinstated.

REVERSED AND RENDERED.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Interest of E. W. K., A Minor.
    No. 53387.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 8, 1982.
    Colom, Mitchell & Colom, Beverley B. Mitchell, Columbus, for appellant.
    Joe Gentile, Robert G. Jenkins, Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   Appeal from Youth Court, Lowndes County; Lenore L. Prather, Youth Court, Judge.

AFFIRMED.


text:
    STATE of Mississippi ex rel., Bill ALLAIN, Attorney General et al. v. MISSISSIPPI PUBLIC SERVICE COMMISSION.
    No. 53709.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Bill Allain, Atty. Gen., Robert Frank Spencer, Larry J. Stroud, Sp. Asst. Attys. Gen., Tim Hancock, Gay Dawn Horne, Wise Carter Child & Caraway, James K. Child, Jr. and Henderson S. Hall, Jr., Cupit & Maxey, John L. Maxey, II, Jackson, Stanley L. Taylor, Jr., Biloxi, for appellants.
    Bennett E. Smith, Asst. Atty. Gen., Jackson, J. Walter Brown, Natchez, for appellee.
   ON MOTION OF MISSISSIPPI POWER AND LIGHT COMPANY TO STRIKE THE ATTORNEY GENERAL’S ASSIGNMENTS OF ERROR WITH REFERENCE TO THE MERITS OF THE RATE INCREASE

WALKER, Presiding Justice,

for the Court:

On May 28, 1980, Mississippi Power and Light Company filed a notice of intention to change [increase] rates with the Mississippi Public Service Commission in accordance with Mississippi Code Annotated section 77-3-37 (1972). The rates were suspended by the Commission, and Mississippi Power & Light Company filed a refunding bond and placed the proposed rates and charges into effect under bond on service rendered on and after July 1, 1980.

On June 3, 1980, six days after Mississippi Power & Light Company filed its notice of intention to change rates, the Commission, after discussing the advisability of employing special counsel to assist in the research, preparation and presentation of the rate case, entered an order employing the Honorable Walter Brown of Natchez pursuant to Mississippi Code Annotated section 77-1-13, on a part-time basis, to assist in the case before the Commission and any court with respect thereto.

Also present representing the Commission was the Honorable Bennett Smith, an assistant attorney general, assigned to the Commission on a full-time basis as required by Mississippi Code Annotated section 77-3-9 (1972). This section reads as follows:

The attorney general shall appoint an assistant attorney general on a full-time basis to assist and advise the commission in all matters affecting its powers and duties and to perform such duties and services in connection with this article and the enforcement thereof as the commission may require. Such assistant attorney general shall be in addition to the assistant attorneys general now provided by law, and his qualifications, term of office, and salary shall be the same as those provided by law for other assistant attorneys general. His salary and expenses shall be paid in the same manner and from the same funds as the salary and expenses of the commissioners.
The assistant attorney general assigned to the commission shall upon request of the commission represent and appear for the commission in all actions and proceedings involving any question under this article, and he shall aid in any investigation or hearing had under the provisions hereof.

Mississippi Code Annotated section 7-5-5 (1972) provides in part that:

The attorney general may discharge any assistant attorney general or special assistant attorney general at his pleasure and appoint another in his stead. The assistant attorneys general shall devote their entire time and attention to the duties pertaining to the department of justice under the control and supervision of the attorney general.

Of course, under this statute the attorney general could discharge Mr. Brown or Mr. Smith at his pleasure.

The Commission has no independent authority to employ special legal counsel in any matter except with the prior consent of the attorney general as to the person employed and what he is to be paid. Miss. Code Ann. § 77-1-13 (1972).

It can hardly be argued, therefore, that, among his many other duties, the attorney general, through that office, is required by law to represent the Mississippi Public Service Commission.

The Commission held public hearings before the Commission on the proposed rate increase, beginning August 28, 1980, and which were concluded on November 6, 1980.

An order of the Commission dated November 24, 1980, recites in part:

The following persons intervened in this cause, participated in the proceeding, and presented evidence and testimony at the hearings: The Mississippi Legal Services Coalition, The Mississippi Hunger Coalition, The Onus Fund, the Mississippi LP-Gas Dealers Association, The Ferro Corporation, Brenda Atwell, and Jackie Ingle. Certain other members of the public presented testimony at the public hearings. All interested persons and parties were afforded an opportunity to present statements and evidence. All parties were afforded a reasonable opportunity for cross-examination.

The attorney general personally appeared on the first day of the hearing and announced to the Commission that “I am representing the Commission and the public.” The attorney general participated in the examination of witnesses during the hearings although he did not call any witnesses himself.

The attorney general also named a seven-member task force from his office to assist in the rate case.

After the Commission heard all of the evidence and entered its order granting a part of the proposed rate increase and denying part, Mississippi Power & Light Company appealed from the denial of its proposed rate increase, and intervenors appealed from that part of the order granting a rate increase.

The attorney general filed a petition in the Chancery Court of Hinds County requesting permission to intervene in that appeal on behalf of the State of Mississippi as a substantial rate payer ($7,011,824.00 in 1980), and all taxpayers of the State on the theory that they are the ones who pay the bills through taxes. He cites as authority for his right to intervene Mississippi Code Annotated section 77-8-67(1) (Supp.1981) which provides in part:

In addition to other remedies now available at law or in equity any party aggrieved by any final finding, order or judgment of the commission shall have the right, regardless of the amount involved, of appeal to the chancery court, first judicial district of Hinds County.... Any person whose rights may be directly affected by said appeal may appear and become a party, or the court may upon proper notice order any person to be joined as a party.

The attorney general contends that the State of Mississippi and all its agencies, as substantial purchasers of electricity and all taxpayers of the State, who ultimately pay the expense of government through taxes, have a direct interest in and will be affected by the outcome of the appeal; and, that he had the authority, both at common law and by statute, to represent the State of Mississippi in all suits and proceedings and also to intervene in all suits and proceedings which are of concern to the general public, affect the public interest, or for the protection of the public.

The court took the attorney general’s petition under advisement and allowed him to fully participate in the appeal. However, before the court rendered its decision it first denied the attorney general’s motion to intervene. The attorney general has appealed this ruling and has included in his brief assignments of error going to the merits of the rate increase. Mississippi Power & Light has now made a motion to strike those additional assignments of error dealing exclusively with the rate increase. This brings the question of the attorney general’s right to intervene in the first instance squarely before us.

In State v. Warren, 254 Miss. 293, 307, 180 So.2d 293, 299 (1965), this Court outlined generally the common law duties of the attorney general, saying:

At common law the duties of the attorney general, as chief law officer of a realm, were numerous and varied. He was chief legal adviser of the crown, was entrusted with the management of all legal affairs, and prosecution of all suits, criminal and civil, in which the crown was interested. He had authority to institute proceedings to abate public nuisances, affecting public safety and convenience, to control and manage all litigation on behalf of the state, and to intervene in all actions which were of concern to the general public.

See also 2 R.C.L. Attorney General § 4, pp. 915-916.

Later, in Gandy v. Reserve Life Insurance Company, 279 So.2d 648, 649 (Miss.1973), speaking to the attorney general’s common law powers and authority, the Court said:

The Attorney General is a constitutional officer possessed of all the power and authority inherited from the common law as well as that specifically conferred upon him by statute. This includes the right to institute, conduct and maintain all suits necessary for the enforcement of the laws of the state, preservation of order and the protection of public rights. State v. Warren, 254 Miss. 293, 180 So.2d 293, 182 So.2d 234 (1965); Dunn Construction Co. v. Craig, 191 Miss. 682, 2 So.2d 166, 3 So.2d 834 (1941); and Capitol Stages v. State, 157 Miss. 576, 128 So. 759 (1930). (Emphasis added).

Also, consistent with this Court’s pronouncement with reference to the attorney general being a constitutional officer and possessed with common law duties, Mississippi Code Annotated section 7-5-1 (1972) provides in part:

The attorney general provided for by section 173 of the Mississippi Constitution shall be elected at the same time and in the same manner as the governor is elected. ... He shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state. No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the attorney general. He shall have the powers of the attorney general at common law and is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of state-wide interest.

It is glaringly apparent from the pronouncements of this Court, cited above with reference to the attorney general’s common law duties and the statute which reaffirms those duties, that he will be confronted with many instances where he must, through his office, furnish legal counsel to two or more agencies with conflicting interest or views. It is also readily apparent that in performing their duties, the agencies will from time to time make decisions, enter orders, take action or adopt rules and regulations which are, in spite of good intentions, either illegal or contrary to the best interest of the general public.

Under our scheme of laws, the attorney general has the duty as a constitutional officer possessed with common law as well as statutory powers and duties to represent or furnish legal counsel to many interests— the State, its agencies, the public interest and others designated by statute.

Paramount to all of his duties, of course, is his duty to protect the interest of the general public.

The question presented under these circumstances is whether the attorney general must abrogate his responsibility to one or the other. We think not, because, without legal counsel from his office, the agencies would have no representation. The case law and statutes make it unquestionably clear that he is the state’s chief legal officer and is charged with managing all litigation on behalf of the state. Moreover, no state agency may employ legal counsel without the prior approval of the attorney general and any such special counsel appointed performs their duties under the supervision and control of the attorney general and serves at his pleasure and may be dismissed by him.

The various state agencies, therefore, are dependent upon the attorney general for legal counsel either by or through his office.

Although this case is one of first impression in this State, a number of other states have addressed the problems involved.

In discussing the unique role of the attorney general in a dispute between two state agencies, the Illinois Supreme Court stated in EPA v. Pollution Control Board, 69 Ill.2d 394, 14 Ill.Dec. 245, 372 N.E.2d 50, 52-53 (1977):

[T]he Attorney General’s powers encompass advising and representing the State and all agencies in all legal proceedings. In addition, although an attorney-client relationship exists between a State agency and the Attorney General, it cannot be said that the role of the Attorney General apropos of a State agency is precisely akin to the traditional role of private counsel apropos of a client. (See Secretary of Administration & Finance v. Attorney General (1975), 367 Mass. 154, 159, 326 N.E.2d 334, 336). Indeed, where he or she is not an actual party, the Attorney General may represent opposing State agencies in a dispute. See Progressive Party v. Flynn (1948), 401 Ill. 573, 580, 82 N.E.2d 476; see also City of York v. Pennsylvania Public Utility Com. (1972), 449 Pa. 136, 295 A.2d 825, and Arizona State Land Department v. McFate (1960), 87 Ariz. 139, 348 P.2d 912; cf. People ex rel. Scott v. Illinois Racing Board (1973), 54 Ill.2d 569, 301 N.E.2d 285.

The Court continued saying:

The Attorney General’s responsibility is not limited to serving or representing the particular interests of State agencies, including opposing State agencies, but embraces serving or representing the broader interests of the State. This responsibility will occasionally, if not frequently, include instances where State agencies are the opposing parties. (Id. at 53).

In Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262 (1977), the Massachusetts Supreme Court was concerned with the authority of the attorney general to prosecute an appeal to the Supreme Court of the United States from a judgment of the district court contrary to expressed objections of state officers whom he represented:

The authority of the Attorney General, as chief law officer, to assume primary control over the conduct of litigation which involves the interests of the Commonwealth has the concomitant effect of creating a relationship with the State officers he represents that is not constrained by the parameters of the traditional attorney-client relationship. (Id. at 1266).

The Court went on to say:

Our decision affirms the Attorney General’s authority to prosecute an appeal where he believes that important interests of the Commonwealth will be sacrificed if the State officers’ unwillingness to consent to appeal is permitted to prevail. Only in this way will official responsibility for these suits and proceedings, at all stages of their progress, be secured. See McQuesten v. Attorney Gen., 187 Mass. 185, 187, 72 N.E. 965 (1905). (Id. at 1267).

In Providence Gas Company v. Burke, 419 A.2d 263 (R.I.1980), the Supreme Court of Rhode Island held:

In the event that following a commission decision the Attorney General, having previously represented the division, desires to seek review, he should do so in his own name rather than on behalf of the division. In our opinion it is the function of the division to serve the commission in bringing to it all relevant evidence, facts, and arguments that will lead the commission in its quasi-judicial capacity to reach a just result. Once the commission has made its decision, it is inappropriate for the division and its administrator to challenge that decision, even when the administrator (chairman) has dissented. In such a situation, the people and rate payers of the State of Rhode Island may most properly be represented by the Attorney General in seeking review of the commission’s decision. The Attorney General need not be precluded from seeking such review merely because he has previously represented the division as counsel. (Id. at 270).

As to other jurisdictions which have addressed the question of the right of the attorney general to intervene on appeal on behalf of the State and to protect the public interest, see: Commonwealth v. Paxton, 516 S.W.2d 865 (Ky.1974); State v. Public Service Commission, 129 Mont. 106, 283 P.2d 594 (1955); Public Service Coordinated Transport v. State, 5 N.J. 196, 74 A.2d 580 (1950); People v. Illinois Racing Board, 54 Ill.2d 569, 301 N.E.2d 285 (1973). In Paxton, the Kentucky Supreme Court reversed a lower court’s ruling that the attorney general had no standing to intervene and allowed intervention in order to adequately represent the people rather that the “machinery of government.” Id. at 867. See generally Connecticut Commission on Special Review v. Connecticut Freedom of Information Commission, 174 Conn. 308, 387 A.2d 533 (1978); Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262 (1977); EPA v. Pollution Control Board, 69 Ill.2d 394, 14 Ill.Dec. 245, 372 N.E.2d 50 (1977).

The prevailing rule is that where the attorney general has common law powers, he has the inherent right to intervene in all suits affecting the public interest when he has no personal interest therein.

However, there is a minority view as expressed in City of York v. Penn. Pub. Utility Comm’n., 449 Pa. 136, 295 A.2d 825 (1972).

In that case, the Pennsylvania Court dealt with the question of respective powers of the attorney general and the state boards and commissions in holding:

Finally, we must decide whether the Commonwealth Court properly refused the request of the Attorney General of Pennsylvania to intervene as an appellant in the proceedings in the Commonwealth Court. We believe that the Attorney General’s request was properly refused.
We recognize that the Attorney General’s power of intervention, both under statute and at common law, are broad. However, we agree that to allow the Attorney General to intervene as an appellant in an appeal from an order of the Public Utility Commission would create an irreconcilable conflict of interest and thus cannot be permitted. We take the liberty of quoting extensively from the opinion of the Commonwealth Court on this point:
“[F]atal to the Attorney General’s position here is the statutory duty that he has to represent the Public Utility Commission and to be allowed to intervene would create an irreconcilable conflict of interest. We are in full accord with what Judge Woodside said in Ault Unemployment Compensation Case, 188 Pa. Super. 260, 146 A.2d 729 n. 1 (1958): ‘The Attorney General appeared personally before us and argued this and companion cases in favor of the claimants and against the Unemployment Compensation Board. We are of the opinion that he should not have argued against an agency of the Commonwealth which the legislature directed him to represent in litigation. See Section 903(b) of The Administrative Code of April 9, 1929, P.L. 177, 71 PS § 293.
“ ‘The attorney general is charged by the Administrative Code with the duty of not only representing the boards and commissions in court but also of giving them legal advice. See Section 902, 71 PS § 292 and section 512, 71 PS § 192. However, within their respective fields these boards and commissions are given authority to make decisions which involve not only findings of fact, but also conclusions of law. They must determine the law applicable to the facts of the cases before them. As we view it, the legislature did not intend that the attorney general should examine each case before these quasi-judicial bodies to determine how he thinks the board or commission should decide them. The legislature provided for the review of these decisions by courts to which appeals are allowed. Appeals from these decisions are not to the attorney general.’ ” (Id. at 831-832). (Emphasis theirs).

Considering our scheme of laws with respect to the attorney general being the chief legal officer of the State with the duty to represent the many agencies of the State and his duty to protect the public interest, we are of the opinion and hold that the majority rule will afford maximum protection to the public interest as well as afford complete legal representation to the various state agencies.

The attorney general has a large staff which can be assigned in such manner as to afford independent legal counsel and representation to the various agencies. The unique position of the attorney general requires that when his views differ from or he finds himself at odds with an agency, then he must allow the assigned counsel or specially appointed counsel to represent the agency unfettered and uninfluenced by the attorney general’s personal opinion. If the public interest is involved, he may intervene to protect it.

We have carefully considered each of the points raised by Mississippi Power and Light Company and find them to be without merit.

Therefore, the motion of Mississippi Power & Light Company to strike the assignments of error of the attorney general with respect to the merits of the rate case is overruled and he may proceed as an inter-venor in this case.

MOTION OF MISSISSIPPI POWER & LIGHT COMPANY TO STRIKE THE ASSIGNMENTS OF ERROR OF THE ATTORNEY GENERAL WITH RESPECT TO THE MERITS OF THE RATE CASE IS OVERRULED, AND HE MAY PROCEED AS AN INTERVENOR IN THIS CASE.

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

APPENDIX “A”

      . A copy of the order appointing special counsel is attached as appendix “A.”


author: DAN M. LEE, Justice,

text:
    Wendell H. TRAPP, Jr., Substituted Trustee, for the Use and Benefit of FIRST MISSISSIPPI BANK OF COMMERCE, and First Mississippi Bank of Commerce v. B. E. TIDWELL and Elizabeth Tidwell.
    No. 53333.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 8, 1982.

      Smith, Downs, Ross, Trapp & Coleman, Wendell H. Trapp, Jr., Corinth, for appellants.
    Price, Krohn & McLemore, Robert G. Krohn, Corinth, for appellees.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Chancery Court of Alcorn County wherein B. E. Tid-well and Elizabeth Tidwell, defendants/ap-pellees, obtained a temporary injunction enjoining First Mississippi Bank of Commerce (FMBC) from conducting a foreclosure sale on a certain piece of property securing a promissory note executed by B. E. Tidwell while he was employed as an officer of FMBC. FMBC filed an answer, crossbill and motion to dissolve the injunction, seeking to foreclose on the above-mentioned property. Although the note executed by B. E. Tidwell was current, FMBC sought to foreclose on its deed of trust under a dragnet clause due to several fraudulent transactions consummated by B. E. Tidwell while Tidwell served as an officer of the bank. Following a lengthy hearing, the chancellor found the dragnet clause applied only to those sums which were contracted for by Tidwell (Tidwell’s promissory note and Tid-well’s bank overdraft). Aggrieved of the chancellor’s findings, FMBC appeals. We affirm.

B. E. Tidwell began working for FMBC in July 1974. During his employ at FMBC, Tidwell served as vice-president, senior vice-president and director. In July 1976 Tidwell left the bank.

On January 23, 1976, B. E. Tidwell executed a promissory note in the amount of $33,000 in favor of FMBC. This note was secured by a deed of trust on certain property known as the Cross Town Package Store. The deed of trust contained the following provision:

“Also, to secure any other indebtedness heretofore, now or hereafter (within the period of four years from the date hereof) contracted with either the payee in or the holder of the above described note or notes by the grantor or grantors herein or either of them whether such other indebtedness be evidenced by note, open account, overdraft or any other manner whatsoever, including also, any indebtedness of any grantor made as a joint maker, surety, endorser or guarantor.”

The note was current when the present controversy arose.

The property that was secured by this deed of trust was later conveyed to Frankie Tidwell (B. E. Tidwell’s wife) and then to Elizabeth Tidwell (B. E. Tidwell’s mother).

FMBC subsequently instituted foreclosure proceedings against the property based on losses suffered by the bank as a result of Tidwell’s actions while he was an officer of the bank.

The bank alleged the following amounts were due by Tidwell and were encompassed within the coverage of the aforementioned dragnet clause:

(A) A promissory note executed by B. E. Tidwell dated January 23, 1976, in the principal sum of $33,000 with $27,217.18 due and owing.
(B) An overdraft to the personal checking account of B. E. Tidwell in the sum of $1,505.76 as of August 1, 1979.
(C) A promissory note executed by T. R. Byrd dated November 21, 1975, in the principal amount of $6515, the proceeds of which were deposited directly to the account of B. E. Tidwell. As of August 1, 1979, $7,125.67 was owed on this note.
(D) A promissory note executed by Tim Tucker dated May 26, 1976, in the principal sum of $6500, the proceeds of which were diverted to the use of B. E. Tidwell. $8,570.56 was the balance due on this note as of August 1, 1979.
(E) A promissory note executed by B. E. Tidwell and his wife, Frankie Tidwell, on February 7, 1975, in the principal sum of $12,755. This loan was secured by real property as well as a 1974 MGB automobile. After the Tidwells defaulted upon the note, the bank instituted foreclosure proceedings against the real property. The bank purchased the property at the foreclosure sale for $10,347.98 and also obtained a default judgment against the Tidwells in the amount of $3400 when it sought to replevy the automobile.
(F) A loss to FMBC in the amount of $16,900 resulting from the issuance of a credit life insurance policy on the life of B. C. Garrett by Merit Life Insurance Company in connection with a promissory note showing B. C. Garrett as the borrower, dated February 24, 1976, in the principal amount of $19,597.50. The proceeds of the loan were deposited to the account of Cross Town Package Store, a business in which B. E. Tidwell had an interest.
(G) Two promissory notes executed by Carol P. Bonds dated November 15, 1974, and November 18, 1974, in the respective amounts of $2,883.76 and $2448, the proceeds of which were diverted into B. E. Tidwell’s personal checking account. As of August 1, 1979, $5,331.76 remained owing on these notes.
(H) A promissory note executed by Carol P. Bonds dated July 9, 1975, in the principal amount of $32,445.04. This loan was made as a result of a fraudulent financial statement and the proceeds were actually received by M. M. Bartlett who was in extreme financial difficulty as well as beyond his legal lending limits at the bank. All of this was known by B. E. Tidwell.
(I) A promissory note executed by Robert F. Gates dated March 21, 1975, in the principal sum of $31,000, the proceeds of which were diverted to the use of M. M. Bartlett to evade the legal lending limit of the bank. This loan was likewise secured by non-existent collateral of which B. E. Tidwell had full knowledge.
(J)A promissory note executed by Frankie Tidwell dated March 24, 1976, in the principal amount of $8,002.50 and secured by a 1976 Oldsmobile automobile. The security interest in the automobile was never perfected. When B. E. Tid-well was notified about the defective security interest, he did nothing to correct the same. Tidwell and his wife subsequently succeeded in obtaining a lost certificate of title and thereafter pledged the automobile as collateral for a loan at another bank. $10,024.48 remained owing on this note as of August 1, 1979.

B. E. Tidwell was subsequently indicted in federal court for various counts of false pretense, embezzlement and misappropriation of bank funds.

At the conclusion of the lengthy hearing, encompassing voluminous exhibits and testimony, the learned chancellor, construing the dragnet clause most strongly against the drawer (FMBC), found that only those debts which arose by way of contract were encompassed within the dragnet clause, and stated in part as follows:

It will be necessary for the Court to consider each one of the claims separately and to make an individual determination.
Perhaps the most critical issue before the court is the determination of the extent and coverage of the dragnet clause in the deed of trust. This is important because the value of the mortgaged property is much greater than the original debt. It has been estimated that the value of the mortgaged property may be in the approximate amount of $120,-000.00, while the balance on the original note as of August 1, 1979 was $27,217.18.
The claims by the Bank against B. E. Tidwell arise primarily out of actions by Tidwell while he was an employee and officer of the Bank. The Bank claimed losses from the acts of Tidwell and others in the amount of $2,500,000.00 and called on their bonding company to make good these losses. After negotiation the bonding company, United States Fidelity and Guaranty Company, paid the Bank the amount of $620,000.00, Exhibit 16, with the Bank retaining its rights to recover from all persons all or any part of the losses it has sustained. United States Fidelity and Guaranty Company waived its right of subrogation. B. E. Tidwell was convicted of criminal acts in the United States District Court and received a prison sentence.
For the reasons above the dragnet clause is important here. At the outset, it appears that the Bank prepared the deed of trust with the dragnet clause in it. The language of the dragnet clause provision was chosen by the Bank. The cases cited in the briefs show that an instrument drawn by a party in interest must be construed most strongly against the drawer.
The dragnet clause is quoted above and it must be noted that the critical words in the clause are “contracted with”. The clear and precise language allows the security to attach to other indebtedness arising by way of contract. There is no intention either expressed or implied to have the security lien of the dragnet clause attach to an unliquidated claim or tort. The clear language of the dragnet clause extends to other indebtedness contracted by the borrower, (emphasis ours).

The chancellor, in considering each of the claims independently, then made the following specific findings:

CLAIM A
The original note and deed of trust is identified as Exhibit 2. At the time the injunction was issued this note was current in its payments. There was due at the time of the calculation of the balance as of August 1, 1979, the unpaid balance of $27,217.18. See Exhibit 15 for schedule of balances.
CLAIM B
This claim relates to an overdraft of B. E. Tidwell, Exhibit 3, to the Bank. It is admitted that B. E. Tidwell owes the amount of the overdraft, but it is contended by him that it does, not come within the coverage of the dragnet clause. The overdraft is specifically within the dragnet clause, which states that the dragnet clause includes “also to secure any other indebtedness . whether such indebtedness be evidenced by.overdraft or any other manner whatsoever ...” The amount due on the overdraft as of August 1, 1979 was $1,505.76. The court is of the opinion that this indebtedness is within the provisions of the dragnet clause. See Exhibit 15 for record of balance.
CLAIM C
This claim is Exhibit 4 and is a promissory note originally executed by T. R. Byrd on November 21, 1975 in the principal amount of $5,615.00. It is admitted that this is an obligation of B. E. Tidwell to the Bank, but it is denied that it is covered by the dragnet clause. This is a loan made by B. E. Tidwell in his capacity as a loan officer purportedly to T. R. Byrd, with listed security. The proceeds of this transaction were deposited directly to the account of B. E. Tidwell. This was a fraudulent transaction and was manipulated by Tidwell to unlawfully convert the proceeds of the loan to his own use. It is admitted by Tidwell that he owes the Bank money, but it is denied that it is covered by the dragnet clause of the deed of trust. The conversion of this money appears to the court to be a matter of tort, rather than a matter of contract covered by the dragnet clause. The court is of the opinion that the T. R. Byrd note does not come within the provisions of the dragnet clause. However, the Bank is entitled to a judgment for the balance due as of August 1, 1979 in the amount of $7,125.67 plus interest. See Exhibit 15. This excludes attorney’s fees included in the final balance on Exhibit 15. The Court is of the opinion attorney’s fees called for in the note would not apply here. On the face of the note, attorney’s fees were contracted for by T. R. Byrd, not B. E. Tidwell.
CLAIM D
This claim is on the Tim Tucker note, Exhibit 5. This transaction is similar to the T. R. Byrd. It is admitted that B. E. Tidwell owes the Bank this debt, but it is denied it is covered by the dragnet clause. This was a fraudulent loan from which Tidwell received the money, although Tidwell did not sign the check of the Bank to Tucker. However, he did receive the money and convert it to his own use. For the same reason given in the T. R. Byrd transaction, the court is of the opinion that this does not come within the dragnet clause, and neither would the matter of attorney’s fees. The balance calculated from Exhibit 15, is that as of August 1,1979, Tidwell owes the amount of $8,570.56 for which a judgment is given, plus interest.
CLAIM E
This claim is shown by Exhibits 6 and 7 and relates to a promissory note executed by Bill Tidwell and his wife, Frankie Tid-well on February 7, 1975 in the original principal amount of $12,755.00. The security for this loan was real estate and an automobile. The Bank instituted Replev-in proceedings for the automobile in the Circuit Court, resulting in a judgment of $3,400.00 on May 30, 1977. This loan included both the real estate and automobile described in the loan documents. Default was made in the payments of the loan and the real estate was foreclosed by the Bank. Sale was made by the Trustee and the Bank became the purchaser at the Trustee’s sale for $10,347.98. The trustee’s deed is dated May 11, 1977. In the course of the trial counsel for the Bank stated that it made no claim on the Tidwell note dated February 2, 1975, Exhibit 7, and the amount shown on the Schedule of Debts, Exhibit 15, was deducted from the totals claimed by the Bank. It is not clear how the Bank applied the proceeds from the foreclosure, but since the Bank does not now make any claim on the Tidwell note of February 2, 1975. it should not be included in this suit as a claim. It is likewise not clear if the foreclosure on the real estate discharged the claim on the automobile. The foreclosure on the real estate and the Replevin suit took place about the same time. It does not now appear that the judgment should be within the coverage of the dragnet clause.
CLAIM F
The B. C. Garrett — Merit Life Insurance claim is shown by Exhibit 8. There has been no issue raised as to the liability of B. E. Tidwell to the Bank. Tidwell contends this claim is not covered by the dragnet clause. This claim arose from Tidwell causing a credit life insurance policy to be issued on the life of B. C. Garrett by Merit Life Insurance Company. This was a fraudulent transaction perpetuated by Tidwell on the Bank for which he is fully liable. The amount of this claim as of August 1, 1979 is $19,-532.00 for which the Bank is entitled to a judgment, plus interest. However, this not being covered by the dragnet clause, it cannot be included as a claim under the dragnet clause in this suit. Tidwell contends that the release between the Bank and Merit Life Insurance Company also releases him since he was an agent of Merit. The Court finds no merit in this contention of Tidwell.
CLAIM G
Exhibit 9 is for two promissory notes signed by Carol P. Bonds in the original amounts of $2,883.76 and $2,448.00. B. E. Tidwell admits he is liable for these indebtedness, but denies they are within the coverage of the dragnet clause. The proceeds from these notes were fraudulently obtained by Tidwell, and which went into his personal account. These notes total $5,331.76 for which the Bank is entitled to a judgment plus interest from November 15, 1974. However, this claim does not come within the dragnet clause.
CLAIM H
Exhibit 10 relates to the note of July 9, 1975 signed by Carol P. Bonds in the principal amount of $32,445.04. B. E. Tidwell was the loan officer handling this transaction. He secured the note from Carol P. Bonds, which showed Bonds owned 150 head of cattle and 200 acres of soybeans. Her financial statement reflected a net worth of $54,800.00. Bonds did not own any cattle or soybeans. The financial statement was admittedly fraudulent. The entire transaction was made for an unlawful purpose. Tidwell claims the funds were put into the account of one of its customers to evade the legal lending limit of the Bank. The customer M. M. Bartlett, owner of E-Z Lounger and True Frames, Inc. were in extreme financial difficulty, all of which was known to Tidwell. It is chimed by Tidwell that he was told by the Chairman of the Board and the President of the Bank to make the loan. B. E. Tidwell was the loan officer who handled the fraudulent transaction well knowing it to be fraudulent. He was the responsible officer of the Bank, and even if told by his supervisors, he was not relieved from his own wrongdoing. The Bank is entitled to recover the amount of $32,445.04, plus interest from July 1975. However, this type of fraudulent action does not come within the provisions of the dragnet clause.
CLAIM I
This claim is that of the Robert F. Gates loan which is very similar to the loan of Carol P. Bonds in Claim H. Exhibit 11 shows the note of Robert F. Gates, plant manager for M. M. Bartlett, for $30,160.00 dated March 21, 1975. As in the Bonds loan, the Gates loan was supported by a financial statement which was prepared by Tidwell and was a fraudulent statement. Gates could not have repaid the loan. The security for the loan was 350,000 board feet of lumber, which Gates did not have. The proceeds of this loan was taken by Tidwell and placed in Gates’ account who in turn paid the money over to M. M. Bartlett and E-Z Lounger for the purpose of evading the legal lending limit of the Bank. M. M. Bartlett and E-Z Lounger were in deep financial difficulty. This transaction must be classed as fraudulent on the part of B. E. Tidwell. A Judgment against B. E. Tidwell will be awarded for the unpaid balance as of August 1, 1979 in the amount of $39,328.45 plus interest accrued to date. However, this claim does not fall within the provisions of the dragnet clause of the deed of trust.
CLAIM J
This claim is identified in Exhibit 14. On March 24, 1976 B. E. Tidwell made a loan to his wife, Frankie Tidwell for $8,002.50. A 1976 Oldsmobile was pledged as security. B. E. Tidwell did not show the Bank as a lienholder in the application for the certificate of title to the automobile. The security instrument in the automobile was never perfected, and was the responsibility of B. E. Tid-well as loan officer. Later during a bank examination, this failure was pointed out to B. E. Tidwell, who did nothing about it. B. E. Tidwell left the Bank and he and his wife Frankie Tidwell applied for a lost certificate of title with the Motor Vehicle Comptroller and in fact borrowed money from another bank on the same automobile and the note to the Bank here was never paid. The circumstance of the making of this loan to his wife by B. E. Tidwell make it quite clear this loss to the Bank was a result of gross negligence and fraud. The Bank is entitled to a judgment against B. E. Tidwell for $10,-024.48, plus interest. This is calculated as of August 1, 1979. Unfortunate as it is in this claim, being a loan to the wife of B. E. Tidwell, the court is of the opinion that the loss does not come within the dragnet clause of the deed of trust.

I. Did the dragnet clause within FMBC’s deed of trust operate to secure claims of FMBC which arose as a result of appellee’s fraudulent actions while employed at FMBC?

The dragnet clause contained in FMBC’s deed of trust provided as follows:

“Also, to secure any other indebtedness heretofore, now or hereafter (within the period of four years from the date hereof) contracted with either the payee in or the holder of the above described note or notes by the grantor or grantors herein or either of them whether such other indebtedness be evidenced by note, open account, overdraft or any other manner whatsoever, including also any indebtedness of any grantor made as a joint maker, surety, endorser or guarantor.”

There is no question that dragnet clauses are enforceable if properly executed and stated in clear and unambiguous language. Newton County Bank, Louin Branch Office v. Jones, 299 So.2d 215 (Miss.1974).

Newton County Bank, Louin Branch Office v. Jones, supra, involved the attempted foreclosure of homestead property owned in fee simple by Mrs. Myrtis Jones. On November 4, 1968, Mrs. Jones and her husband executed a deed of trust on their homestead which deed of trust contained a dragnet clause to secure all future loans and advances made to the grantors, or any one of them. Subsequently the husband, who only had a homestead interest in the property, received additional advances from the bank secured by cattle allegedly owned by him. When default was made, the bank sought to foreclose its deed of trust against the land, but the lower court enjoined the foreclosure proceedings. In reversing the lower court, this Court held the advances made to the husband alone were within the purview of the dragnet clause entitling the bank to proceed against the homestead property upon default of the indebtedness by the husband.

The case sub judice is clearly distinguishable from Newton County Bank, Louin Branch Office v. Jones, supra. In the present case FMBC sought to foreclose on its deed of trust securing B. E. Tidwell’s original promissory note for indebtedness to the bank which arose because of the tor-tious or fraudulent action of Tidwell and did not involve an innocent third party. Tidwell was not a party to the contracts whereby the indebtedness was created, but was merely instrumental in approving the extension of indebtedness to various individuals.

The deed of trust having been drafted by FMBC must be most strongly construed against FMBC. Williams v. Life Insurance Company of Georgia, 367 So.2d 922 (Miss.1979). In Amos v. Lance, 355 So.2d 84 (Miss.1978), we held the failure to reduce an alleged deficiency to a liquidated claim or judgment could not be the sole basis for foreclosure of a deed of trust containing a dragnet clause. The chancellor found and we agree that there was no intention, either express or implied, that the dragnet clause attach to an unliquidated claim or tort. The amount of indebtedness allegedly owed by Tidwell as a result of his tortious and fraudulent actions was never reduced to a liquidated amount. In fact, throughout the trial the bank remained unsure as to the exact indebtedness of Tidwell to the bank. The chancellor as the finder of fact specifically found the claims sought to be included under the dragnet clause were acts of Tidwell and others, in the amount of $2,500,000.00, were unliquidated or tort claims and we are unable to say his findings as such were manifestly wrong.

Moreover, prior to purchasing the aforementioned property, Mrs. Tidwell met with Ed Caviness, Chairman of the Board and President of FMBC pertaining to the assumption of the Tidwell note secured by the deed of trust containing the dragnet clause. With FMBC’s permission, Mrs. Tid-well, who is admittedly a bona fide purchaser in an arm’s length transaction, having assumed approximately $120,000 in mortgages on this property, which was its full value, was allowed by FMBC to assume the $32,000 loan. Mrs. Tidwell was never advised of the bank’s intentions to include the other claims of indebtedness against her son before she assumed the deed of trust nor was she advised of a different amount due on the deed of trust, including everything the bank now claims under the dragnet clause. The bank having failed to do so, is now estopped from asserting a larger amount secured by the deed of trust. To allow the bank to grant Mrs. Tidwell permission to assume a loan with a balance of approximately $32,000 and then later, to her detriment, accelerate that balance to approximately $103,000 by virtue of an obscure dragnet clause, would offend any concept of justice.

Based on our review of the record, extensive briefs, and detailed findings of the chancellor as to both the facts and the law, we are unable to say he was manifestly wrong in his findings of fact or conclusions of law.

II. Did the chancellor err in allowing appellee to collaterally attack a final judgment of the Circuit Court of Alcorn County?

One of the claims (Claim E) alleged by FMBC to be covered by its dragnet clause was a promissory note in the total amount of $12,755 dated February 7, 1975, and executed by B. E. and Frankie Tidwell. This note was secured by a 1974 MGB automobile and a deed of trust on one and one-half acres of land. When the Tidwells defaulted on the note, the bank foreclosed on the property, purchasing the same for $10,-347.98. FMBC also sought to replevy the automobile securing the loan. However, no answer was filed by the Tidwells and a default judgment in the amount of $3400 was entered against the Tidwells.

FMBC contends the chancellor erred in allowing B. E. Tidwell to testify in a manner which constituted a collateral attack on the judgment and resulted in a ruling by the lower court that the judgment was invalid. In our opinion, the chancellor properly allowed testimony as to the $3400 judgment in an effort to determine (1) if it was an obligation that would be included under the dragnet clause whether it be by default judgment, contract, note or whatever; (2) further, that if it was a contract debt, was any amount still due thereon; and (3) whether the amount due on the loan involved in this transaction ($12,755) was in fact paid by Tidwell or satisfied by virtue of the foreclosure sale of the real estate which secured the note together with the 1974 MGB automobile.

Moreover, this further establishes that the unliquidated claims against Tidwell were not ascertainable when the bank attempted to foreclose upon the real estate and pay the amount of the loan ($9,074.58) plus trustee’s fees and advertising costs of the trustee’s sale. The purchase of the real estate by the bank was sufficient to liquidate the entire loan secured by the one and one-half acres of real estate and the MGB automobile. However, the bank examiner ordered the bank to reduce the amount received at the trustee’s sale from $10,-347.98 to $1,215.91, being the value of the real estate as determined by the bank examiner, thereby creating a $7,858.67 deficiency on the note which the bank attempted to encompass within the provisions of the dragnet clause.

We are unable to say the chancellor was manifestly wrong as to his findings on Claim E or that he erred in allowing testimony concerning the $3400 judgment.

The chancellor must be complimented upon his handling of this detailed and complicated trial, requiring many days of trial, and five volumes of exhibits and testimony. His detailed findings of fact upon each separate claim and his interpretation of whether the amount was liquidated or unliquidat-ed and would come within the dragnet clause, have been of great benefit to this Court.

After extensive study of the record, the briefs and applicable law, we are unable to say the chancellor was manifestly wrong in any of his findings of fact or conclusion of law. It therefore follows that this cause is affirmed.

AFFIRMED.

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


text:
    Roscoe ROBINSON v. STATE of Mississippi.
    No. 53588.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 8, 1982.
    H. David Clark, II, Forest, for appellant.

      Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   DAN M. LEE, Justice,

for the Court:

This is an appeal from the Circuit Court of Scott County wherein Roscoe Robinson, defendant/appellant, was indicted, tried and convicted for the December 6, 1980, willful, unlawful and felonious murder of Ernest Grayson with malice aforethought. Upon conviction, Robinson was sentenced to a term of life imprisonment in the Mississippi State Penitentiary. Robinson appeals from the verdict of the jury adjudging him guilty of the crime for which he was charged. We affirm.

On December 6, 1980, around noon, Ernest Grayson was shot and killed in front of the Oakdale Apartment Complex in Forest, Mississippi. Just prior to the shooting, appellant and Grayson were engaged in an argument. Appellant was heard to say, “Nigger, I’m going to kill you,” whereupon Grayson responded he was not scared of appellant and he (appellant) had better go on and leave him alone.

While the argument was in progress, appellant was standing in the opening of a breezeway to an apartment building. Grayson was leaning against a brick post. Robert Kyzar was sitting near the opening of the breezeway; however, he died before the cause came to trial. Billy Bishop, Linda Bishop, Loni Boykin and James Boykin were leaving the apartment building while appellant and Grayson were arguing.

Appellant disappeared into the breezeway, off of which his apartment was located, and then returned to the entry of the breezeway. After the first shot was fired, Billy Bishop, Linda Bishop and Loni Boykin directed their attention toward the apartments. Their view of appellant’s hands was obstructed by a brick post. However, each asserted appellant’s arm was extended toward Grayson. Loni Boykin asserted she saw appellant’s arm moving behind the brick post and smoke emerging therefrom. James Boykin testified he saw a gun in appellant’s right hand. Grayson and Kyzar ran upon the firing of the first shot. None of the witnesses saw Grayson with a weapon or make any type of advance toward appellant.

The jury returned a verdict of guilty as charged and appellant received a life sentence.

I. Was the verdict of the jury against the overwhelming weight of the evidence?

Appellant contends the evidence presented in the present case was insufficient to support the verdict of the jury, primarily because the only witness who testified he saw appellant with a gun was James Boy-kin, who allegedly testified in appellant’s first trial that he had not seen a gun.

A conviction may be had on circumstantial evidence alone. Tolbert v. State, 407 So.2d 815 (Miss.1981). Disregarding the direct evidence of James Boykin, the state’s evidence established appellant threatened to kill Grayson, then disappeared into the apartment breezeway, shortly returned to the scene of the argument where shots were heard. Both Grayson and Kyzar ran while appellant stood with his arms extended forward pointing toward Grayson. Smoke was seen in the vicinity of the brick post which hid appellant’s hands from view of the witnesses. Appellant then disappeared into the breezeway and returned shortly thereafter.

Appellant asserts the record is totally devoid of any evidence that appellant willfully, unlawfully and feloniously with malice aforethought murdered Grayson. Appellant evidently overlooks the argument that ensued between himself and Grayson only minutes before the shooting wherein appellant stated he was going to kill Gray-son. This evidence was competent to reveal motive and establish malice or deliberation in the homicide. See May v. State, 205 Miss. 295, 38 So.2d 726 (1949).

Appellant also contends James Boy-kin impeached his own testimony and readily admitted he was confused about what he had seen and previously testified to in appellant’s previous trial. On direct examination, Boykin testified he saw a gun in appellant’s hand. On cross-examination, Boykin first denied his present testimony conflicted with his earlier testimony, but then he asserted he really could not remember. On redirect, Boykin asserted he was confused about what he testified to at appellant’s previous trial, not what happened on the day Grayson was shot.

An examination of the record fails to support appellant’s contention that Boykin impeached his own testimony. At most, the record reveals Boykin was confused about what he testified to in appellant’s previous trial. Had appellant desired to impeach Boykin’s testimony about seeing a gun on the day in question, he should have obtained a transcript of the former proceedings. Otherwise, there is no way for this Court to know what his previous testimony was.

In Sadler v. State, 407 So.2d 95 (Miss.1981), this Court stated:

Among the alleged errors assigned is that the trial court should have sustained Sadler’s motion for a new trial on the ground that the jury verdict was not supported by sufficient credible evidence.
Considering the evidence, as we must, in the light most favorable to the state and accepting as true the evidence supporting or tending to support the verdict, with all inferences supportive of the verdict that reasonably may be drawn therefrom, we find no merit in this contention. Glass v. State, 278 So.2d 384 (Miss.1973). In Spikes v. State, 302 So.2d 250 (Miss.1974), this Court said:
“On appeal, in this situation, in passing upon the sufficiency of evidence to support a verdict, this Court must accept as true the evidence which supports the verdict. Murphree v. State, 228 So.2d 599 (Miss.1969). [302 So.2d at 251].” (407 So.2d at 97)

Accepting the evidence pursuant to the foregoing rule, the evidence was sufficient to support the verdict of the jury.

II. Did the trial court err in failing to quash the special venire upon motion of the appellant?

Appellant filed a motion for special venire facias which was sustained by the trial judge. Forty additional jurors were summoned; however, only twenty-three jurors appeared. Five of the twenty-three jurors summoned were excused by the trial judge. Appellant moved to quash the special venire on the ground that the special venire amounted to no venire at all from which appellant could select a jury.

Smith v. State, 242 Miss. 728, 137 So.2d 172 (1962), is dispositive of the issue. There the trial court ordered, upon Smith’s request, the summoning of a special venire of forty jurors. Only eighteen appeared. The court excused three for cause and after challenges by the parties of others, only six jurors remained from the original venire. Smith moved to quash the special venire because only eleven out of the forty called were available. In upholding the trial court’s action in overruling Smith’s motion to quash, this Court stated:

Code Sec. 1795 provides that after the venire is exhausted the trial court shall make up the jury “from the regular panel and tales jurors who may have been summoned for the day.” This was what the court did. There is no evidence to show appellant was prejudiced by this procedure, or the jury was not impartial. In Walford v. State, 106 Miss. 19, 63 So. 316 (1913), under somewhat similar facts, it was said: “The sheriff failed to summon forty jurors, and therefore to that extent failed to obey the order of the court; but under section 2718 this provision of the jury law is directory merely. Since there is no hint in the record that an impartial jury was not obtained, appellant suffered no harm by reason of the fact that the sheriff only summoned thirty men, and cannot complain thereof.”
A special venire will not be quashed except for fraud or total departure from the procedure laid down by statute. Here there was no total departure nor any suggestion of fraud. Riley v. State, 208 Miss. 336, 44 So.2d 455 (1950). See also Harrison v. State, 168 Miss. 699, 152 So. 494 (1934); Williams v. State, 26 So.2d 64 (Miss.1946); Code Sec. 1796. The provisions of the law in relation to the listing, drawing, summoning and empaneling juries are directory. Code Sec. 1798.
(242 Miss, at 733, 137 So.2d at 173)

Since there is no evidence to show appellant was prejudiced by this procedure or the jury was not impartial, this assignment of error is without merit.

III. Was appellant entitled to a manslaughter instruction?

Appellant contends he should have been granted a manslaughter instruction because none of the witnesses knew of the nature or cause of the argument between appellant and Grayson.

Although the substance of the argument between Grayson and appellant was unknown, the state’s evidence established a prima facie case of murder. In Gaddis v. State, 207 Miss. 508, 42 So.2d 724 (1949), this Court stated:

Words of reproach, criticism or anger do not constitute sufficient provocation to reduce an intentional and unjustifiable homicide from murder to manslaughter. Richardson v. State, 123 Miss. 232, 85 So. 186; Williams v. State, Miss., 26 So.2d 174; McLaurin v. State, 205 Miss. 554, 37 So.2d 8.
(207 Miss. at 515-16, 42 So.2d at 726)

Appellant offered no evidence in his own defense. There was absolutely no evidence before the jury that the shooting of Gray-son was a result of heat of passion. Therefore, the manslaughter instruction tendered by appellant was properly refused as not being supported by the evidence. Norman v. State, 385 So.2d 1298 (Miss.1980).

IV. Did the trial court err in further instructing the jury after the trial court was informed that the jury had been unable to reach a verdict?

The jury retired to deliberate at 3:17 p. m.; at 6:35 p. m., the trial court was informed the jury had not been able to reach a verdict. The trial court inquired as to the numerical division of the jury, whereupon it was informed the vote had been ten to two for the last hour and twenty minutes. The trial judge then polled each juror as to his or her opinion on whether the jury could agree on a verdict if given more time to deliberate. One juror expressed he did not know, two jurors thought they could and nine jurors did not think a verdict could be reached. The jury was recessed for supper and when it returned at 8:30 p. m., the trial judge gave an additional instruction. At 9:37 p. m. the jury returned a verdict of guilty as charged.

The additional instruction given by the trial judge was in accordance with this Court’s decision in Sharplin v. State, 330 So.2d 591 (Miss.1976). See also Banks v. State, 394 So.2d 875 (Miss.1981); Jordan v. State, 365 So.2d 1198 (Miss.1978); and Parr v. State, 362 So.2d 634 (Miss.1978). Rule 5.14 of the Uniform Criminal Rules of Circuit Court Practice provides in part:

If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give an appropriate instruction. The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

The jury deliberated approximately four hours before arriving at its verdict. During this period the trial judge recessed the jurors for dinner. We are of the opinion that the trial judge did not err in requiring further deliberation by the jury, especially after the jury was allowed to recess for dinner.

Based on the foregoing, appellant’s conviction and sentence are hereby affirmed.

AFFIRMED.

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

ROY NOBLE LEE, J., took no part.


author: ROY NOBLE LEE, Justice,

text:
    Jack ETHRIDGE v. STATE of Mississippi.
    No. 53329.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 8, 1982.
    Nora J. Hall, Roy 0. Parker & Associates, Tupelo, for appellant.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before WALKER, BROOM and ROY NOBLE LEE, JJ.
   ROY NOBLE LEE, Justice,

for the Court:

Jack Ethridge was convicted in the Circuit Court of Lee County, Honorable Thomas J. Gardner, III, presiding, on a charge of murder and was sentenced to life imprisonment. He has appealed and assigns three (3) errors in the trial below.

I.

Did the lower court err in admitting into evidence the following items on the grounds that they were irrelevant and prejudicial to the jury: (a) two .38-caliber pistols, (b) bloodstained clothing belonging to the witness Wayne Dillard, (c) a section of paneling with an indentation allegedly caused by a bullet?

Evidence for the State reflects that on July 29, 1980, about 2:00 a. m., the Sheriff’s Office of Lee County received a complaint that Mrs. Clytee Ethridge was missing. Mrs. Ethridge’s daughter reported the information. At approximately 7:00 a. m., a sheriff’s deputy went to the Ethridge home and an investigation was initiated by him and other officers. As a result of the investigation, the appellant, Jack Ethridge, husband of Mrs. Clytee Ethridge, and Wayne Dillard, were taken to the sheriff’s office and informed of their constitutional rights. Appellant executed an agreement permitting search of the home, and Dillard gave a statement implicating appellant in the homicide of Mrs. Ethridge. He took them to a place where her body was found and also to other locations where items of evidence were recovered.

Dillard testified at the trial that he rented a house from appellant and previously had worked for him in a bulldozing and dragline operation. On Monday, July 28, 1980, he worked for the appellant, mowing his lawn and doing some bushhogging. After finishing, around 7:00 p. m., they sat talking with some friends and Dillard went home around 8:00 p. m. He had started to eat supper when appellant came to the house and told him to come with him. They went to appellant’s home and appellant asked Dillard, if he was going to stay with him, whereupon, Dillard replied, “He guessed he would.” Appellant then told Dillard that he thought Mrs. Ethridge was going to leave him, and he had killed her. They went into the back bedroom and found Mrs. Ethridge’s body on the floor, wrapped it in a blanket, and carried the body out and placed it in appellant’s truck.

Appellant and Dillard wiped up the blood with a white dress, which they later burned. They took the body about ten (10) miles from the Ethridge home, drove off Highway 41 about three-fourths (¾) of a mile down a dirt road, and then left the body approximately fifty (50) yards off the road in the woods. The men tried to clean blood from the truck and put corn shucks in the pickup bed to conceal any bloodstains they missed. Dillard’s pants were covered with blood. Before going into his house, he removed the pants and threw them in the woods. He arrived home at approximately 11:00 p. m. Appellant said that he would report Mrs. Ethridge as missing and that he would call his daughter and ask whether or not his wife had been there.

The following morning, Scruggs, a nephew of Ethridge, went to Dillard’s home and told him that Mrs. Ethridge was missing and that he should go to the Ethridge home. When Dillard did not comply, Scruggs contacted Dillard again and told him that Eth-ridge was asking for him. Dillard then went to appellant’s home where appellant told him to take the truck and clean it up, that there was blood on the back bumper and a shirt under the seat. Appellant gave Dillard money for gas, and he drove off in the truck for that purpose.

Ethridge testified and denied that he knew anything about the homicide. He admitted that he was with Dillard on the afternoon and night of the homicide, but said that someone must have hired Dillard to get him away from the house while the homicide was being committed. He testified that, after leaving Dillard on the night of the homicide, he went home, the television was on, and his wife was missing.

The State offered in evidence, and the lower court admitted, two .38-caliber pistols, the bloodstained clothing of Wayne Dillard, and a section of paneling with an indentation supposedly caused by a bullet. The indentation in the paneling was at a point six and one-half (6½) to seven (7) feet above the floor of the bedroom where Mrs. Ethridge was killed. Appellant contends that the admission of that physical evidence constitutes reversible error.

The pathologist testified that the cause of death was a bullet wound which entered the head of Mrs. Ethridge above the left ear and exited above the right ear, and that the wound was consistent with the size of a .38-caliber bullet; that he could not identify the exact caliber, but that the wound was caused by a handgun of mid-caliber size. The two .38-caliber pistols introduced in evidence were found in appellant’s home, where Mrs. Ethridge was slain, and were identified as being his.

Appellant cites Herman v. State, 75 Miss. 340, 341, 22 So. 873 (1898) and Lanier v. State, 291 So.2d 695 (Miss.1974) in support of his contention that all the physical evidence mentioned should not be admitted. However, those cases are distinguished from the case at bar on the facts. It was competent to show that the appellant owned a .38 pistol or pistols, since the evidence of the fatal wound indicated it was similar in size to a wound caused by that size bullet. The introduction of the pistols, under the facts of this case, was relevant to proof of the fatal wound and had probative value as to the connection of appellant with the homicide.

The bloodstained clothing, including pants worn by Wayne Dillard, corroborated the testimony of Dillard and had relevance to the crime itself. The section of paneling with an indentation in it, which the crime laboratory found to have traces of lead, and which was found in the bedroom in close proximity to the body, also had relevance and probative value bearing upon the commission of the crime.

We are of the opinion that there was no error in admitting the items into evidence.

II.

Did the lower court err in allowing the sheriff and his deputy to remain in the courtroom after the rule had been invoked?

The appellant concedes that sequestration of witnesses is a procedural matter and is within the sound discretion of the trial judge. Action of the court in permitting officers of the court, such as the sheriff and deputy, whose business and duty it was to secure the courtroom, is not an abuse of the court’s discretion. See Pilcher v. State, 296 So.2d 682, cert. den. 420 U.S. 938, 95 S.Ct. 1149, 43 L.Ed.2d 415 (1974); Irving v. State, 361 So.2d 1360 (Miss.1978); Fondren v. State, 253 Miss. 241, 175 So.2d 268 (1965); and Stokes v. State, 240 Miss. 453, 128 So.2d 341 (1961).

The court invoked the rule as to all officers except the sheriff and his chief deputy, who were performing duties in the courtroom. The testimony of those officers related only to the identification of a photograph of the body and blanket in which it was wrapped, and in establishing chain of custody of blood samples taken from the appellant and the witness Dillard. The chain of custody was stipulated to by attorneys for appellant and the prosecution.

There is no merit in this assignment.

III.

Did the lower court err in overruling defendant’s motion for a mistrial during the testimony of witness Harold Ethridge, after this witness mentioned irrelevant and inflammatory matters?

The expert witness, Harold Ethridge, testified that he found pieces of tissue (meat and skin) in the kitchen of appellant’s home. Appellant’s counsel objected and moved for a mistrial and offered into evidence copies of reports from the Mississippi Crime Laboratory which did not mention the finding of any human tissue in appellant’s home. Appellant contends that the testimony was irrelevant, inflammatory and prejudicial.

The expert testified that he had not scientifically analyzed the material, but he knew it was tissue. He could not state whether it was animal or human tissue. We are of the opinion that the admission of such testimony did not constitute reversible error. Taylor v. State, 254 So.2d 728 (Miss.1971); Ivey v. State, 206 Miss. 734, 40 So.2d 609 (1949).

The evidence in this case is overwhelming beyond reasonable doubt that the appellant committed this heinous homicide on his wife. He does not even contend on this appeal that the conviction was against the weight of the evidence. Without question, he received a fair trial. His unreasonable and contradicted denial of his implication in the crime was not believed by the jury, nor do we give credence to it.

The judgment of the lower court is affirmed.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    VOLKSWAGEN OF AMERICA, INC. v. Jane E. NOVAK and Wayne A. Novak.
    No. 53358.
    Supreme Court of Mississippi.
    Aug. 11, 1982.
    Rehearing Denied Sept. 8, 1982.

      Henderson Duke & Dantone, Edward D. Lamar, Greenville, for appellant.
    Lake, Tindall, Hunger & Thackston, Charles S. Tindall, III, Lott, Sanders, Gwin & Fonda, Arnold F. Gwin, Greenwood, Campbell & DeLong, Fred C. DeLong, Jr., James T. Milam, for appellee.
    Before PATTERSON, C. J., and BOWLING and DAN M. LEE, JJ.
   PATTERSON, Chief Justice,

for the Court:

Volkswagen of America, Inc. (VWoA) brings this appeal from a judgment of the Circuit Court of Washington County in favor of Jane and Wayne Novak (Novak) in the amount of $19,398.18 for breach of warranty on a station wagon sold to appellees by John Hinkle, Inc. (Hinkle), to which MAC Sales, Inc. (MAC) succeeded.

On March 14, 1980, the Novaks purchased a 1980 Volkswagen Dasher diesel powered station wagon for $10,318.98 from Hinkle who delivered to them a manufacturers new car limited warranty from VWoA along with the automobile.

The first major problem they experienced with the vehicle occurred the last week of June, 1980, while they were traveling to Texarkana, Arkansas. The engine, with only 5,716 miles, failed which necessitated the car being towed to Hinkle for repairs and the Novaks renting another vehicle.

Before the repairs were completed, MAC purchased the assets of Hinkle and became the franchised Volkswagen dealer in Green-ville, Mississippi, where the purchase had been made. After three weeks in MAC’s shop, the vehicle was repaired by the installation of a new engine.

Several weeks later, on a trip to Atlanta, Georgia, the engine began to “act up” and was taken to a VWoA dealer in Atlanta for a checkup. The Novaks, upon returning to Greenville, took the automobile to MAC for more repairs where it stayed for an additional week or so.

Upset with all the repairs the new automobile was requiring Novak wrote the president of VWoA on August 3, 1980, informing him of the difficulties with the car. In his letter Novak stated “at this point I feel that the only equitable solution would be to return this obvious embarrassment to your company for suitable research into the original problems and replace it with a comparable vehicle and start our relationship anew.” He received a reply from a district office informing him that VWoA would look into the problem.

Despite the repairs and persistent complaints, the automobile continued to malfunction and the replacement engine, with only 5,852 miles on it, failed on November 18, 1980. A third engine was then ordered for the automobile but was so defective when sent from the factory that it would not develop sufficient oil pressure and the automobile could not be driven out of MAC’s repair shop. A fourth engine was then ordered.

Novak again wrote the president of VWoA demanding a new replacement vehicle and on January 19, 1981, appellees’ attorney, wrote VWoA, Hinkle, and MAC to inform them that if a new engine was not installed with a written warranty or a new replacement vehicle offered on or before January 25, 1981, the contract would be revoked. This demand was not met before the date specified and on January 26, 1981, appellees notified VWoA, Hinkle and MAC of their revocation of acceptance. The vehicle was then left at MAC’s lot.

Novak filed suit against Hinkle, MAC and VWoA to revoke acceptance of the purchase contract for the alleged reason the vehicle did not conform to the contract due to defects which substantially impaired its value. The court granted MAC and Hinkle directed verdicts and submitted the case to the jury on the question of rescission and breach of warranty against VWoA. The jury returned a verdict for $19,398.18, which included the purchase price, attorneys fees, incidental and consequential damages.

The first issue is whether the purchasers are entitled to revoke acceptance of the sales contract and recover the purchase price from VWoA, the manufacturer of the automobile.

Miss.Code Ann. § 75-2-608 (1972), provides the remedy of revocation of acceptance by a buyer upon breach of contract by the seller. In order to revoke acceptance the buyer must (1) accept the goods without knowledge of the non-conformity; (2) the non-conformity must substantially impair the value of the goods; and (3) revocation must occur within “a reasonable time after the buyer discovers or should have discovered the grounds for it and before any substantial change in condition of the goods which is not caused by their own defects.” Revocation is not effective until the buyer notifies the seller. When these conditions are met, the buyer becomes subject to the duties imposed by Miss.Code Ann. §§ 75-2-602(2), and 75-2-604 for the care of the goods.

Appellee points out that Miss.Code Ann. § 11-7-20 (Supp.1981), abolished privity of contract for breach of warranty claims including actions brought under the Uniform Commercial Code. § 11-7-20 states:

In all causes of action for personal injury or property damage or economic loss brought on account of negligence, strict liability or breach of warranty, including actions brought under the provisions of the Uniform Commercial Code, privity shall not be a requirement to maintain said action.

We agree with appellees assertion that revocation of acceptance is a “suit brought under the UCC” and is specifically authorized by § 75-2-608, and thus falls within the confines of § 11-7-20. Therefore, we are of the opinion that a seller is responsible for the economic loss which results from his breach of an implied warranty of merchantability without regard to privity. When the breach justifies revocation of acceptance, we hold, the seller is liable for the return of the purchase price, plus other damages as authorized by statute.

In the present case Novak met the requirements of § 75-2-608 (revocation of acceptance). Unquestionably the nonconformity substantially impaired the value of the vehicle to Novak and therefore justified revocation of acceptance.

VWoA argues however that they were not a party to the sales contract, therefore, revocation of acceptance and return of the purchase price is not available because they are not “sellers” as defined by Miss.Code Ann. § 75-2-103(1)(d) (1972). While the argument is somewhat persuasive, we are nevertheless of the opinion that the retailers sales contract accompanied by the manufacturer’s warranty, are so closely linked both in time of delivery and subject matter, that they blended into a single unit at the time of sale. We are fortified in this statement by the general observance that sales are usually made, not only upon the make and model of the automobile, but also upon the assurance of the manufacturer, through its warranty, that the vehicle will conform to the standards of merchantability.

Although we do not believe we err in holding VWoA to be a seller and liable as such, it is also liable under its express warranty to “repair and replace” as stated in Royal Lincoln Mercury Sales, Inc., et al. v. Wallace, 415 So.2d 1024, 1028 (Miss.1982), wherein this Court held that “If it [the repair and replacement warranty] fails, however, as a remedy in its essential purpose, then its function as a limitation of liability also fails.” Likewise, VWoA cannot shield itself from liability with the limited warranty of “repair and replacement.” VWoA cannot, in our opinion, continue indefinitely to repair an automobile which is patently defective. The evidence proved this automobile was so defective that it did not conform to its primary purpose of transportation, and that it would be difficult, if not impossible, to sell for a reasonable price, thus leaving the purchaser with no redress short of filing suit.

VWoA argues the lower court erred in granting MAC and Hinkle directed verdicts. It is clear from Altamil Corp. v. Miss. State Highway Com’n., 391 So.2d 1013 (Miss.1980); Lowery v. Conner, 189 So.2d 922 (Miss.1966); and Junkins v. Brown, 238 Miss. 142, 117 So.2d 712 (1960), that VWoA has no standing to complain of the directed verdicts granted its co-defendants.

VWoA next contends the trial court’s action in allowing Moorman, MAC’s shop foreman and service manager, to testify as an expert with regard to Volkswagen diesel engines was an abuse of discretion since he had never worked on a Volkswagen diesel engine before he came to work for MAC in July, 1980. The evidence showed Moorman had been a mechanic for 8 years and had worked exclusively on diesel engines three years with a construction contractor and as mentioned, was the service manager of the VWoA authorized dealership. According to Early-Gary, Inc. v. Walters, 294 So.2d 181 (Miss.1974), this was not error, but rather rested within the sound discretion of the trial judge and since the discretion was not abused this was not error.

VWoA argues attorneys fees should not be allowed since the issue was decided by the jury. In Royal Lincoln, we held that 15 U.S.C. § 2310(d)(2), has application to cases of this nature. This congressional enactment provides that attorneys fees are to be determined by the court. In the present case the question of attorneys fees was presented to the jury by stipulation setting out the hours actually worked and the value per hour as being a reasonable fee. Although not technically correct, the jury assessed attorneys fees just as the court would have done via the stipulation. It is our opinion this was harmless error at most.

Appellant finally asserts that while appellees in their declaration pray for money damages, they are, in essence, seeking rescission of the contract, an action in equity. Although it is never too late to object to jurisdiction, this court, absent other error, will not reverse for this reason alone in a jurisdictional dispute between courts. Miss.Const.Art. 6, § 147; Louisville & N. R. Co. v. Hasty, 360 So.2d 925 (Miss.1978); McLean v. Green, 352 So.2d 1312 (Miss.1977).

There being, in our opinion, no reversible error, the case is affirmed.

AFFIRMED.

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

      . “Seller” means a person who sells or contracts to sell goods.

        But see Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 80 (Tex.1977), in discussing the definition of “seller” stated: ‘Under the terms of the Code, a manufacturer may also be a seller. The Code does not limit its definition of seller to the immediate seller of a product. Instead the Code defines a seller as ‘a person who sells or contracts to sell goods.’ Tex.Bus. & Comm.Code Ann. § 2.103(4). Nobility Homes ‘sells or contracts to sell goods;’ consequently, Nobility Homes is a seller under the Code.”


text:
    Jack JOHNSTON, Appellant as Realigned, v. Mrs. Mary Kathryn Ellis STINSON and Glen A. Stinson, Appellees as Realigned.
    No. 53393.
    Supreme Court of Mississippi.
    Aug. 18, 1982.
    Rehearing Denied Sept. 8, 1982.
    Johnson & Johnson, Forrest A. Johnson, Jr., Natchez, for appellant.
    Zuccaro, Riley, Pintard, Brown & Carby, J. Walter Brown, Jr., Joseph S. Zuccaro, Natchez, for appellees.
    Before WALKER, P. J., and BROOM and ROY NOBLE LEE, JJ.
   WALKER, Presiding Justice,

for the Court:

This is an appeal from the Circuit Court of Adams County wherein judgment was entered in favor of Johnston, appellant as realigned, for $19,560.13 in actual damages. He had also asked for punitive damages, but the court directed a verdict against him on that issue as well as crop loss. Aggrieved with the court’s ruling as to damages, Johnston has perfected his appeal to this Court.

The Stinsons have filed their cross-appeal contending that no judgment in any amount should have been rendered against them.

We affirm on direct appeal and reverse and render on cross-appeal.

On April 7, 1980, Johnston filed a declaration against the Stinsons for tortious conversion of certain farm equipment. He sought $704,083.50 in actual and punitive damages.

Johnston and the Stinsons had entered into a lease agreement whereby Johnston agreed to lease certain farm land belonging to the Stinsons for a five-year period. A security agreement and sales contract were entered into wherein Johnston agreed to purchase various pieces of farm equipment from the Stinsons. The agreements provided, among other things, that Johnston would carry not only liability insurance but that he would insure all farm equipment covered by the sales contract against risk of loss up to the full insurable value of each item.

It is undisputed that Johnston only insured what he termed “rolling stock” amounting to approximately one-half the value of the equipment with no coverage whatsoever on the remaining equipment. The failure to secure adequate coverage as provided for within the terms of the lease and sales agreements, as well as failure to comply with numerous other provisions, was called to Johnston’s attention several times by Stinson. It can hardly be disputed that there was a material breach of the contract committed, giving Stinson the right to repossess the equipment covered by the agreement.

Numerous questions are raised on direct and cross appeals. However, it is not necessary for us to reach any other question raised since a breach of the contract was committed by Johnston so as to give Stin-son the right to retake the farm equipment covered in their sales contract.

As previously stated, it is undisputed that Johnston did not purchase adequate insurance against loss of the farm equipment as provided for in the contracts. Under these circumstances, the Stinsons had a right to repossess the equipment. The repossession was done peacefully and in accordance with Mississippi Code Annotated section 75-9-503 (1972), which provides as follows:

Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action. If the security agreement so provides the secured party may require the debtor to assemble the collateral and make it available to the secured party at a place to be designated by the secured party which is reasonably convenient to both parties. Without removal a secured party may render equipment unusable, and may dispose of collateral on the debt- or’s premises under Section 9-504 [§ 75-9-504].

The Stinsons did what they had a legal right to do and the lower court properly sustained Stinson’s motion for a directed verdict on both the issue of punitive damages and alleged crop-loss damages.

However, the court erred in submitting the question of whether there had been a breach of the contract to the jury and failing to sustain Stinson’s motion for a directed verdict on that issue. Therefore, judgment against the Stinsons in favor of Johnston for $19,560.31 is, therefore, set aside.

Affirmed on direct appeal and reversed and rendered on cross-appeal.

AFFIRMED ON DIRECT APPEAL AND REVERSED AND RENDERED ON CROSS-APPEAL.

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

      . Our decision in this matter does not affect any rights between the parties involving the sale of soybeans produced and sold off that tract of land known as “Stockfelt.”