author: ROBERTSON, Presiding Justice,

text:
    Howard N. FRENCH v. Mrs. Juanice B. DRUETTA, Executrix of the Estate of W. J. Druetta, Jr.
    No. 52565.
    Supreme Court of Mississippi.
    March 18, 1981.
    Rehearing Denied July 8, 1981.
    John E. Mulhearn, Jr., Mulhearn & Mul-heam, Natchez, for appellant.
    John T. Green, Stratton Bull, Jr., Natchez, for appellee.
    Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Howard N. French appeals from a decree of the Chancery Court of Adams County, dismissing his amended probate of claim against the estate of W. J. Druetta, Jr., deceased.

Although the so-called contract upon which French’s claim was based was dated August 7, 1967, and was between W. J. Druetta, Jr., owner, d/b/a Druetta Construction Company, and Howard French and A. D. Rand, no suit was brought during Druetta’s lifetime; but when he died on April 27, 1979, and notice to creditors was published, French filed his $150,000 claim on July 26, 1979. French’s affidavit to his probate of claim states:

“[Sjubmits written evidence of his claim, being an Agreement dated August 7, 1967 between W. J. Druetta, Jr. and the undersigned Howard N. French, and makes affidavit that the claim is just, correct and owing from the deceased; that it is not usurious; that neither the affiant nor any other person has received payment in whole or in part thereof and that security has not been received therefor, the original of said Agreement being herewith presented with this Probate of Claim, this 26th day of July, 1979.”

The agreement of August 7, 1967, attached to his probate of claim, recites:

“The following agreement is entered into between W. J. Druetta, Jr., Owner, doing business as Druetta Construction Company, Howard French, and A. D. Rand. It is hereby agreed between all parties referred to herein that the following terms and conditions are in effect and will continue until such time as may be mutually agreed to change. For and in consideration of the services, skills, and contributions to Druetta Construction Company by Howard French and A. D. Rand. It is hereby agreed that Howard French and A. D. Rand are to be compensated at the rate of 25% each of the net profit of the business over and above their salaries and payable as follows:
12-V2% of the profits payable at the end of the first year and the remaining 12-72% of profits will be paid after a working capital of $50,000 has been provided and sufficient bonding capacity has been provided for to meet the company’s requirements for bonding purposes.
This agreement is in effect so long as they are employed with the company and render, to the best of their ability, services referred to above. This agreement will terminated (sic) on the date either party withdraws or ceases to be employed. Computation of their percentage of profits will be computed up to and including the date either withdraws or ceases to be employed.
Net Profit referred to herein is gross income less all cost and operating expenses.
SIGNED: S/ W. J. Druetta, Jr. _
W. J. Druetta Witness
S/ Howard N. French _
Howard French Witness
S/ A. D. Rand Year of 1967
A. D. Rand
After probating his claim, French filed numerous motions for discovery. He asked for discovery of the joint federal income tax returns (filed by Mr. and Mrs. Druetta) from 1967 through 1979. From January 4, 1980, until June 11, 1980, except for the 11-day period from May 23 through June 3, Mrs. Druetta, executrix, made available to French for inspection and copying all of the financial records of Druetta Construction Company. Schedule F of the Federal Estate and Inheritance Tax Returns was made available to French. The chancellor denied the production of the joint income tax returns of W. J. Druetta and his wife for the period 1967 through 1978 because these returns were privileged communications and:
“Also there is available to the claimant the books and records of the Druetta Construction Company which were the source of income upon which the returns were filed.”

On July 25,1980, with the court’s permission, an amendment of French’s probated claim was filed. The claim was reduced from $150,000 to $98,436. Added to his affidavit was this language:

“[A]nd affiant shows that the amount hereinbefore set forth is for monies owed claimant pursuant to said Agreement dated August 7,1967 as shown on Exhibit ‘A’ attached hereto and made a part hereof for all purposes, this 25th day of July, 1980.”

Exhibit “A” recited:

RECAP OF NET INCOME
OF WILLIAM J. DRUETTA, JR., CONTRACTOR
ACCOUNTING FIRM YEAR AMOUNT
Lehman Butler 1967 $ 21,628
Lehman Butler 1968 15,756
Lehman Butler 1969 27,962
Jones & Gillon 1970 1,732
Jones & Gillon 1971 27,599
Jones & Gillon 1972 28,435
Jones, Switzer Company 1973 31,030
Jones, Switzer Company 1974 47,059
Jones, Switzer Company 1975 44,885
Jones, Switzer Company 1976 39,946
Jones, Switzer Company 1977 26,674
Jones, Switzer Company 1978 37,309
$350,015
FMV of Business Assets Over Book Value 43,730
$393,745
at 25%
DUE TO FRENCH $ 98,436

After several hearings, the chancellor, on July 31, 1980, entered his decree dismissing the amended probate of claim and the original probate of claim with prejudice.

French has assigned as error:

A. ERRORS IN PRETRIAL DISCOVERY
1. The Trial Court erred in holding that the tax returns of the decedent were “privileged” and not discoverable.
2. The Trial Court erred after sustaining Appellant’s Motion to Compel Discovery in not awarding a hearing on attorney’s fees and expenses in connection with the motion.
3. The Trial Court erred in not requiring discovery of the entire Mississippi State and Federal Inheritance Tax and Estate Tax Returns in connection with the Estate of W. J. Druetta, Jr., deceased.
B. ERRORS ON FINAL HEARING
1. The Trial Court erred in sustaining the “First Defense” of the Objection to Amended Probate of Claim.
2. The Trial Court erred in sustaining the “Second Defense” of the Objection to Amended Probate of Claim.
3. The Trial Court erred in applying the statutes of limitation with regard to the Amended Probate of Claim.

In Long v. Sledge, 209 So.2d 814 (Miss.1968), albeit under a prior statute, this Court answered the same contentions now made by French adversely to his position. In Long, we said:

“Appellants assign as error the refusal of the trial court to require appellee to produce copies of his income tax return for the years, 1962, 1963 and 1964.... However, the provisions of this section are not mandatory and the trial judge has some discretion in the matter.... Furthermore, the statute is penal and the powers granted therein should be exercised with caution. The statute also provides that it does not apply to matters of privilege. Appellee contended that his income tax returns were privileged. However, it is not necessary for us to determine whether appellee’s income tax returns are privileged since we cannot say that the trial court abused its discretion in overruling the motion. The information desired was available by means of subpoena duces tecum requiring the company for which appellee worked to produce their records showing the business produced by appellee in the years in question.” 209 So.2d at 819. (Emphasis added).

In Clark v. Mississippi Power Co., 372 So.2d 1077 (Miss.1979), this Court said:

“[T]he trial court has considerable discretion in matters relating to discovery and its order will not be disturbed unless there has been an abuse of that discretion.” 372 So.2d at 1080.

As in Long, we cannot say that the trial court abused its discretion in overruling the motion to compel discovery of the joint income tax returns of the late Mr. Druetta and Mrs. Druetta.

In its “Order Denying Request for Production of Tax Returns”, the court found that the self-same information was available from other sources when it ruled “the information sought in said Returns may be found and ascertained from the books and records of Druetta Construction Company.” In another order, the trial court found that the books and records of Druetta Construction Company were the source of all the information contained in the income tax returns. The company’s complete books and records were made available to French for inspection and copying for almost five months.

With reference to the recovery of reasonable expenses, including attorney’s fees, by the successful movant, Mississippi Code Annotated section 13-l-237(a)(4) (Supp.1980), has this proviso: “unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.” As executrix of her husband’s estate, it was Mrs. Druetta’s duty and responsibility to protect the estate and its creditors and to consider whether the rights of the estate under the Deadman’s Statute, Mississippi Code Annotated section 13-1-7 (1972) would be adversely affected or even waived by furnishing the complete business records of her husband.

The court had conducted one hearing on the motion. It was not necessary or required that the court conduct a second hearing to determine whether the movant was entitled to expenses.

In our opinion, the chancellor was clearly correct in finding that neither the probate of claim nor the amended probate of claim met the minimum standards set forth in Mississippi Code Annotated section 91-7-149 or 91-7-151 (1972), (providing that under certain conditions the affidavit can be amended after the 90-day limitation period has expired).

The so-called written contract of August 7,1967, does not in and of itself sufficiently state a claim against the estate. It in no wise resembles a promissory note with definite terms based on a debtor-creditor relationship.

The contract provides:

“12-1/2% of the profits payable at the end of the first year and the remaining 12-1/2% of profits will be paid after a working capital of $50,000 has been provided and sufficient bonding capacity has been provided for to meet the company’s requirements for bonding purposes.”

Businesses are necessarily conducted on a calendar year or fiscal year basis for all purposes: income taxes, income and costs, profit and loss and accountings of all kinds. The contract between Druetta, owner, and French and Rand, employees, specifically provided for the figuring of profits, working capital and bonding capacity “at the end of the first year.”

To meet the minimum standards set forth in section 91-7-149, it was vitally necessary for French to allege and prove:

1. When the $50,000.00 working capital was obtained,

2. When sufficient bonding capacity was obtained,

3. When a breach of the so-called contract occurred,

4. French’s full compliance with the purported agreement, and

5. An itemization of profit, and/or loss of Druetta Construction Company.

In Central Optical Merchandising Company v. Lowe’s Estate, 249 Miss. 61, 160 So.2d 673 (Miss.1964), this Court said:

“Presentation of a claim against an estate is in many respects similar to the filing of a suit against a defendant. The main purposes of pleading and procedure are to obtain a clear definition of the issues between the parties and to reveal all of the facts, in order to obtain a fair and equitable decision of the controversy.” 249 Miss, at 72, 160 So.2d at 678.

While the chancellor in the case at bar gave the appellant the benefit of the doubt and allowed him to amend both his affidavit and his statement of account, even the amended probate of claim does not meet the minimum standards set forth in section 91-7-149.

In Stuart C. Irby Co. v. Patton, Administrator, 301 So.2d 845 (Miss.1974), we said:

“This does not authorize unrestricted amendment. The right to amend was extended only to claims meeting certain minimum requirements to avoid a creditor’s loss for technical insufficiency.
“We reach the same conclusion as did the trial court that the affidavit, which appears to be a bankruptcy form, filed by Stuart C. Irby Company, did not conform to the statutes as modified by Central Optical, supra. It provided no information to the administrator of the estate of W. R. Winters, deceased, from which he could reasonably act in either allowing or disallowing the claim stated to be due by Winters Electrical Contractors.” 301 So.2d at 846-47.

For these reasons, the decree of the lower court dismissing the probate of claim and the amended probate of claim is affirmed.

AFFIRMED.

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


source: Caselaw Access Project

author: SMITH, Presiding Justice,

license: Public Domain

text:
    STATE of Mississippi v. Bobby Wayne BLACK.
    No. 52529.
    Supreme Court of Mississippi.
    May 6, 1981.
    Rehearing Denied July 8, 1981.
    Edwin A. Snyder, Eupora, for appellant.
    John D. Guyton, Thornton, Guyton, Dor-rill & Pettit, Kosciusko, for appellee.
    Before SMITH, P. J., and LEE and BOWLING, JJ.
   SMITH, Presiding Justice,

for the Court:

The grand jury of Montgomery County indicted appellant, Bobby Wayne Black, for embezzlement, a felony, the indictment charging him with having embezzled certain property of “Bailey Ford and Mercury, a corporation” entrusted to him by that corporation.

Black was brought to trial upon that indictment. The State’s first witness was Wilton Bailey, Jr., president of Bailey Ford and Mercury, Incorporated. This witness testified that he and a partner had operated an automobile agency at Winona, and that he had bought out the partner and operated the agency individually as sole owner thereafter. It was developed from the testimony of this witness that appellant Black had been employed by him as parts manager during the time he had owned and operated the business individually. He said that in Black’s capacity as his parts manager, Black had been entrusted with the custody and control of the automobile parts alleged to have been embezzled. The witness testified that Black had resigned his employment with him and had gone into business for himself. Thereafter, on April 10,1978, Bailey Ford and Mercury was incorporated under the laws of the State of Mississippi, and a charter was issued to it on that date. At all times afterward, the agency was owned and operated by the corporation.

Black was never employed by Bailey Ford and Mercury, Inc., that entity not having been in existence at the time of the alleged embezzlement. Black never having been employed by Bailey Ford and Mercury, Inc. he was never entrusted with possession, custody or control of any of its property.

The above facts were established by the testimony of the State’s witness and a certified copy of the charter of incorporation of Bailey Ford and Mercury, Inc. These facts are undisputed. A demurrer, motion to quash, and motion to dismiss the indictment were filed on behalf of Black and sustained by the circuit court. The State has appealed from the action of the trial court in sustaining the motion to dismiss and dismissing the indictment.

It is argued on behalf of the State that Mississippi Code Annotated section 99-17-13 (1972) was sufficient authority to permit the amendment of the indictment where there is variance between the indictment and proof. No request to amend was made by the State.

In the case now before the Court, Black was indicted for embezzling property belonging to Bailey Ford and Mercury, a corporation, which, the indictment alleged, that entity had entrusted to his keeping. The grand jury did not indict Black for embezzling property belonging to Wilton Bailey, Jr. which the latter had placed under Black’s control.

Since Black was never indicted by the grand jury for embezzlement of property belonging to Bailey Ford and Mercury, Inc. entrusted to him by that corporation, an entity by whom he was never employed, he may not be convicted of that offense under proof that he had embezzled property belonging to Wilton Bailey, Jr., an individual, entrusted to him by virtue of his employment by that individual.

The action of the circuit court judge in dismissing the indictment must be affirmed. However, this in nowise affects such action, if any, as the grand jury may see fit to take, and consider justified by evidence, respecting an alleged embezzlement by Black of property belonging to Wilton Bailey, Jr.

AFFIRMED.

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


author: PATTERSON, Chief Justice,

text:
    Dorothy KELLER v. CITIZENS BANK, COLUMBIA, MISS., and William C. Callender.
    No. 52432.
    Supreme Court of Mississippi.
    May 13, 1981.
    Rehearing Denied July 8, 1981.

      William A. Weinischke, R. A. Gray, III, Gray, Montague & Pittman, Hattiesburg, for appellant.
    Maurice Dantin, Hall, Callender & Dan-tin, Columbia, for appellees.
    Before PATTERSON, C. J., and WALKER and HAWKINS, JJ.
   PATTERSON, Chief Justice,

for the Court:

This is an appeal from the Chancery Court of Marion County wherein Mrs. Dorothy Keller, hereinafter Keller, sought from Citizens Bank of Columbia, hereinafter Bank, (1) forfeiture of the principal and interest in a promissory note; (2) cancellation of the deed of trust securing it as well as antecedent deeds of trust renewed and extended by the note; and (3) damages of $50,000.00, together with court costs and attorneys’ fees.

From an adverse decree Keller appeals contending the trial court erred:

1. In finding Keller’s execution of a promissory note and deed of trust dated June 26,1978, constituted a waiver that the statute of limitations had barred a previous indebtedness of Keller and her former husband evidenced by a judgment of May 8, 1970, in the Circuit Court of Marion County.

2. In finding that Section 75-17-1 of the Mississippi Code Annotated (1972) as amended, which provides for interest according to the actuarial method, permits the compounding of interest.

3. In finding that none of the instruments contracted for usurious interest and in finding there was no evidence indicating any intent by Bank to exact usurious interest.

4. In finding “that the calculation of simple interest on the indebtedness evidenced by the judgment at 10% simple interest for the period of May 8, 1970, through May 8, 1975, and compound interest after May 8, 1975, to June 26, 1978.”

In 1978, Keller executed to the Bank a promissory note, deed of trust securing the note, truth-in-lending disclosure form, and a memorandum typed by Ben Rawls, the Bank’s president. Keller contends she executed these documents on May 31; Rawls contends they were signed on June 19 whereas the date appearing on the face of the loan documents is June 26, 1978. The date on the memorandum is June 19, 1978. These documents, except for the memorandum, were signed in blank. Rawls testified Keller requested that she be permitted to sign in blank because she was in a hurry; however, Keller testified that Rawls asked her to sign in blank because he didn’t have time to complete them.

The memorandum evidences the purpose of the above transaction:

“please use attached note and truth in lending form and deed of trust to renew and extend for a six month period the entire balances owing by me to your bank, evidenced by notes held by you signed by me, with credit life insurance to be written if possible.
At the end of six months all notes, whenever dated, to be renewed again on monthly payments.
6-19-78n
/s/ Dorothy Keller”

The purpose of the transaction was to consolidate into one note Keller’s debts to the Bank. This note did not itemize the consolidated debts, but simply designated the total amount due to be $18,975.25.

Rawls testified the amount of the June 26 note was the sum of several component parts namely: (1) the renewal of an existing note held by the Bank on which there remained a balance of $361.00; (2) the inclusion of $6,965.80 paid by the Bank to Foxworth Bank for the assignment of a deed of trust executed by Keller to the assigning bank; (3) the balance, $2,305.75, of another promissory note owing by Keller to the Bank; (4) credit life insurance of $165.00; (5) recording fees of $6.00; and (6) $8,171.70, the amount computed by Bank’s president to be the unpaid balance of Keller and her former husband on a judgment of May 8, 1970. Two days after the note’s execution the total was discovered to be in error by $1000.00 and accordingly, the indebtedness was reduced in that amount.

The controversy centers on the amount of the consideration now owing the Bank by Keller emanating from the May 8, 1970, judgment which resulted from Keller and her former husband’s failure to pay a previous indebtedness to the Bank. The judgment for $4,343.02 with interest computed until the note of June 26, 1978, was included as a component part of the total indebtedness of $18,975.25 on the new note. Rawls testified that when he originally computed interest on the judgment for inclusion in the new note he compounded the interest, but when Keller’s attorney protested, the amount was adjusted to simple interest.

Keller testified she had no knowledge the 1970 judgment was being included in the new note. Rawls testified they did discuss the earlier judgment and a letter was introduced from Rawls to Keller dated June 21, 1978, five days before the promissory note of June 26, 1978. It states in part:

I have worked out the balance owing on the judgment, based on the note signed by you and your former husband, being $8,171.70 as of next Monday.
Your total balance owing to us, will then be $18,804.25.

Rawls explained this letter as follows:

A. This advises Mrs. Keller as to the balance owing on the judgement [sic] indebtedness as of the following Monday, which would, I assume, be June 26, 1978, as being $8,171.70. The purpose was to advise her that the calculations that were necessary to arrive at the balance and the total balance of the indebtedness had been completed and to give her the benefit of that information.
Q. And, that is dated some five days before the loan would become effective?
A. That is correct.

Keller denied receiving this letter. However, Rawls testified it was never returned to the Bank as undelivered. Keller admitted receiving another letter from Rawls of June 26, 1978, which mentioned the judgment. It follows:

“Dear Dorothy:
Your indebtedness to the bank (not including the note you endorsed) and your indebtedness previously owing to Fox-worth Bank, have now all been renewed into one note, with credit life insurance written, and with a six months maturity.
At the end of the six month period, we will renew the note, at your option, on a monthly payment schedule, and with payment of the amount of interest accrued and credit life insurance premium needed. That sum will be approximately $1,100.00.
Please furnish to us the current address, telephone number, place of employment, etc., for Lydie Llew (Bob) Keller, now in Georgia, in construction work so you advised. The indebtedness yet owing on the note signed by him and you, reduced to judgment in the Circuit Court of Marion County, Mississippi, has to be taken care of sooner or later.
Sincerely yours,
Ben Rawls”

Rawls explained this letter:

A. Mrs. Keller had requested, and we had volunteered as between she and Mr. Keller to assist her in having him make the payments. That is really the intent of that letter. That is what it eludes to. She was to bring information as to his whereabouts, and we were to pursue it. Whatever we collected from Mr. Keller, would have been credited on the note that we had.

The lower court found, inter alia, the following:

1.That on June 19, 1978, the complainant, Dorothy Keller, requested Ben M. Rawls, President of Citizens Bank, in writing to permit her to sign the promissory note, deed of trust and loan closing statement in blank with the amount due to be subsequently calculated and inserted in the instrument as a convenience to her and the complainant did there appoint said Ben M. Rawls as her agent to complete said instrument; that by letter of Ben Rawls dated June 21, 1978, complainant was advised the amount of indebtedness due on the deficiency judgment and the total amount owing unto Citizens Bank provided in said note and deed of trust to become effective June 26, 1979 [sic]; that complainant’s acceptance of said amount and renewal of her indebtedness to Citizens Bank and her failure to question or object to said amounts and renewal prior to June 26, 1978, and subsequent thereto for over six (6) months constituted ratification of said note and deed of trust.
2. That usurious rate of 'interest during the period commencing May 8, 1970, and ending June 26, 1978, was 10%; that effective July 1, 1974, Section 75-17-1 of the Mississippi Code of 1972, as amended, provided for interest “calculated according to the actuarial method”, which in effect permits compounding of interest; that the calculation of simple interest on the indebtedness evidenced by the aforesaid judgement [sic] at 10% simple interest for the period of May 8,1970, through May 8,1975, and compound interest after May 8, 1975, to June 26, 1978, results in permitted interest charge of $4,415.34; that calculation of 8% compound interest on said indebtedness as included in the renewal note of June 27, [sic] 1978, amounts to $3,828.68, or an amount considerably less than allowed by law.
3. That the total indebtedness owing unto defendant, Citizens Bank, by the complainant, Dorothy Keller, as of September 22, 1979, is $20,492.90, computed as follows, to-wit:
As of 6-26-78: Renewal, consisting of:
Note $ 361.00
Foxworth Bank notes 6,965.80
Note 2,305.75
Life Ins. prem. 165.00
Recordation 6.00
Judgment: principal 4,343.02
Interest (reduced as per Gray) 2,853.15
$16,999.72 $16,999.72
6-28-78 Plus NSF check added 25.00 17,024.72
8-22-78 1-30-79 Plus separate note Legal 656.00 75.00 17.680.72 17.755.72
2-3-79 Legal 75.00 17.830.72
2-23-79 Publication 42.96 17.873.68
2-28-79 2-28-79 Legal Trustee 250.00 50.00 18.123.68 18.173.68
3-5-79 Publication 23.52 18,197.20
3-30-79 Publication 59.65 18,256.85
Interest from 6-26-78 to 9-22-79 10* simple $2,236.05 20,492.90
Amount of interest included in total
Judgement [sic] interest 2,853.15
Note interest 2,236.05
Total interest • 5,089.20

We are of the opinion the trial court properly considered the judgment of May 8, 1970, which was barred by the statute of limitations, in determining Keller’s liability to the Bank. We think so because the defunct judgment was a sufficient basis to form the consideration for a component part of the new obligation effective June 26, 1978. Section 15-1-3, Mississippi Code Annotated (1972), is authoritative on the point. It provides:

The completion of the period of limitation prescribed to bar any action, shall defeat and extinguish the right as well as the remedy. However, the former legal obligation shall be a sufficient consideration to uphold a new promise based thereon. (emphasis added).

The trial court found Keller was fully advised of all sums alleged by the Bank to be due, which included the consideration emanating from the barred judgment of May 8, 1970, and in accord with established rule the decision of a chancellor on findings of conflicting facts will not be disturbed on appeal unless manifestly wrong. Brent v. Cox, 246 So.2d 552 (Miss.1971). In the case at bar the chancellor had the parties before him, heard their testimony and decided Keller was advised of the amount of the consideration for the new note. We cannot say the lower court was manifestly wrong on this point.

However, we are of the opinion, the trial court erred in computing the amount of the consideration arising from the-1970 judgment. Section 15-1-3, supra, provides “the former legal obligation” is sufficient for a new promise (obligation) based thereon. This leaves the amount of the former legal obligation, the consideration for the new promise, to be decided. Obviously, the judgment debt of May 8, 1970, was barred at the expiration of seven years. Section 15-1-43, Mississippi Code Annotated (1972) provides:

All actions founded on any judgment or decree rendered by any court of record in this state, shall be brought within seven years next after the rendition of such judgment or decree, and not after, and an execution shall not issue on any judgment or decree after seven years from the date of the judgment or decree.

It is our opinion that when the principal judgment debt was barred it necessarily followed that interest on the defunct judgment was also barred. Stated differently, when the judgment debt expired because of limitations, the basis for further accruals of interest also expired. As stated in Proctor v. Hart, 72 Miss. 288, 290-91, 16 So. 595, 596 (1895), in discussing a predecessor statute to Section 15-1-3:

The change wrought by this new statute is radical. Not only the remedy is denied, the action barred, but the right itself is extinguished upon the completion of the period of limitation. The remedy and the right, whatever it was, are alike destroyed. There remains nothing to revive. A new contract, evidenced by a new promise in writing, may be made, and the former legal obligation may be sufficient consideration to uphold it, but it is no longer the revivifying of a right heretofore unenforceable by reason of a remedy being denied merely. It is a new contract based upon the former legal liability as its consideration; it is the creation of a new right and a new remedy for its enforcement. The extinguished right, the original debt and all its incidents, as well as the lost remedy, are all destroyed, upon the completion of the period of limitation, under our present statute.
The promissory note made by the appellant to the appellees, after the bar had attached, is clearly such a new promise as creates personal liability, but it does no more. It does not revive and restore a dead debt with all its incidents, (emphasis added).

Therefore, the former legal obligation, which served as consideration in part for the new note, was limited in amount to the principal of the judgment plus interest for the statutory limitation period of seven years in our opinion.

As stated earlier, Rawls testified that when he originally computed interest on the judgment he charged an interest rate of 8% compounded. However, when Keller’s attorney protested, the amount was adjusted to 8% simple. Furthermore, the lower court left the interest on the judgment as reduced by Keller’s attorney. It should be noted that the time to determine if a transaction is usurious, is the time of the contract and not the subsequent in-court correction. Chandler v. Cooke, 163 Miss. 147, 137 So. 496 (1931).

We think the Bank’s original computations as to the rate of interest were not in accord with that permitted by statute because it was compounded. The interest rate permitted on the viable period of the 1970 judgment, which was founded on a 1969 contract, is set forth in Mississippi Code Annotated, Section 39 (1942) [revised Mississippi Code Annotated, Section 75-17-7 (1972) and (Supp. 1980)], which provides in part:

All judgments and decrees founded on any contract, shall bear interest, after the rate of the debt on which the judgment or decree was rendered.

From the record it appears that the note leading to the 1970 judgment provided for interest of 8% per annum. Therefore, interest should have been charged at the contract rate of 8% per year for seven years to determine the amount of the former legal obligation.

In sum, the 1970 judgment was barred by the statute of limitations; although, its skeletal remains could and did serve as consideration for part of the new note. However, the trial court erred in computing the interest because it did not limit the accrual of interest to the seven year period. Therefore, we reverse and remand for such further findings as may be necessary to recompute the amount of the consideration for the new debt in accord with this decision. We also remand for a determination of whether the consideration arising from the former legal obligation is an item subject to a charge of usury within the contemplation of Miss. Code Ann., Section 75-17-1 (1972) (current version at 1980 Supp.), which provides for the legal rate of interest on all “notes, accounts and contracts” and if so, whether the component part only is usurious or whether usury permeates the entire note.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

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

BROOM, J., takes no part.


text:
    David BATES v. STATE of Mississippi.
    No. 52574.
    Supreme Court of Mississippi.
    May 20, 1981.
    Rehearing Denied July 8, 1981.
    Harold J. Barkley, Jr., Jackson, for appellant.
    Bill Allain, Atty. Gen. by Catherine Walker Underwood, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Hinds County; William F. Coleman, Judge.

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

AFFIRMED.

PATTERSON, C. J., ROBERTSON, P. J., and SUGG, LEE, BOWLING and HAWKINS, JJ., concur.


author: HAWKINS, Justice, SUGG, Justice,

text:
    Johnny L. MILLER v. STATE of Mississippi.
    No. 52559.
    Supreme Court of Mississippi.
    May 20, 1981.
    Rehearing Denied July 8, 1981.
    Albert S. Johnston, III, Johnston & Stein-berger, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before ROBERTSON, P. J., and SUGG and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

The appellant Johnny L. Miller was convicted in the Circuit Court of Stone County of the crime of armed robbery of John’s Discount Drugs, Inc., by committing an assault upon the person of Vickey Parker with a pistol and taking away certain property named in the indictment, and sentenced to serve a term of ten (10) years. We affirm.

On September 14, 1978, around 1:00 in the afternoon, Mrs. Vickey Parker, a 22 year old clerk in John’s Drugs, Inc., in Wiggins, was checking out a customer. At that moment a man, approximately six feet tall, rather heavy set, walked into the store, and when Mrs. Parker asked him if she could help him, he replied, “Yes, you can.” He thereupon raised his shirt and pulled out one of those instruments called a “handgun” on television, but by her a “pistol,” and instructed her to give him all of her cash out of her register and all of her Class A narcotics. Frightened, Mrs. Parker gave him all of the money, but told him she did not know where the narcotics were. She said the narcotics were spread out in the prescription department, and she was not the pharmacist. The man told her to tell him when the pharmacist was coming in, and just at that time Mrs. Parker saw the pharmacist, a Mrs. Mary Murphy coming across the parking lot, and a minute or so later Mrs. Murphy came into the store. Another robber was at the front of the store, and went with Mrs. Murphy to the back of the store. According to Mrs. Parker she let the robber have at least $200.00, and perhaps $300.00.

Mrs. Parker had ample opportunity to make a detailed observation of the robber holding the gun on her. She testified she was looking directly at him, and she was staring at the gun he was holding. His hair was pulled down in his face over his forehead, he had a red cap pulled down over his head. The cap had. a small brim on it, and he had an overshirt on. She testified he had a real strong, stern look about him, and she noticed he had a protruding chin. She described him as having a “sliding mandible” that slid forward, the mandible being the lower jaw. She recognized this because she was an oral surgeon’s assistant, and testified, “the first thing I see when I look at somebody is their mouth.” She also recalled the robber had a rather short beard, just beginning to grow. According to her, the man weighed approximately 200 pounds, was about four feet from her, about two arms length, and she observed him for at least three minutes. She got “a real good look at him, right in the face.” She identified a photograph made of the appellant later that day as being the man who robbed her, she identified the appellant at a preliminary hearing held a short time later, and also positively identified the appellant in circuit court as being the man who robbed her. Her identification was positive and unequivocal.

The other robber was described by the pharmacist Mrs. Mary Murphy as having reddish hair and a full beard. He had on an orange and green checked shirt, cowboy style, with gripper snappers rather than buttons. He had a cap pulled down over his head.

Upon leaving the drug store the robbers got into a 1977 or 1978 model Trans Am Pontiac automobile which was being backed up by a driver. They entered through the right passenger door. The cap fell off of one of the men as the car proceeded east. The city marshal, Joel Simpson, who happened to be close by at the time, began chase when he observed the car speed off and run a four way stop sign. Although Marshal Simpson reached a speed of 112 miles, the Trans Am left him, and in his opinion was running considerably in excess of 120 miles per hour.

Mississippi Highway Patrolman Douglas Anglado, assigned to Jackson County, was proceeding north on the Seeman Road under the 1-10 overpass at the Ocean Springs exit, and about a mile north of the interstate he noticed a white Trans Am coming from the opposite direction, not speeding. Patrolman Anglado spun around in the highway and when he did, the Trans Am sped off, and although the patrolman reached a speed of 110 or 115 miles per hour the car left him.

Mississippi Highway Patrolman Bill Dillon received radio communication of the robbery and of the Trans Am automobile, and that Officer Anglado was chasing a white Trans Am automobile. Officer Dillon began chase when he spotted the Trans Am automobile on the Interstate Highway 10. He followed the car for approximately five miles, driving approximately 150 miles per hour and clocking the Trans Am at over 135 miles per hour. There was one person in the car. A road block was set up at the intersection of Interstate 1-10 and Highway 57, and the automobile stopped there. The appellant was removed from the car and arrested. He did not have a shirt on. He was charged with speeding and reckless driving. He was also photographed at that time without a shirt on.

Mrs. Murphy identified the shirt picked up by the officers as the shirt worn by the man she handed the drugs to.

The appellant’s defense at the trial was essentially an alibi. Ronald C. Howell and two more witnesses testified appellant was at Howell’s home at the time of the robbery. Both Howell and the appellant testified the Trans Am automobile belonged to another individual named Richard Pittman, and the appellant wanted to borrow Howell’s truck which was off at the time being driven by Pittman. According to Howell and the appellant, the Trans Am automobile was loaned by Howell to the appellant to go to a DuPont industry and apply for a job. His explanation for speeding when the Highway Patrolman turned around to follow him was that he was on probation at the time and did not want his probation dropped. He further testified he was not going to DuPont at the time the officer saw him. He claimed he removed his shirt because the air conditioning was not working in the Trans Am, it was a hot day and he was sweating. He did not want to apply for a job with a sweaty shirt. The appellant testified he was six feet three inches tall barefooted, and weighed between 235-240 pounds when arrested. He had one tatoo on each arm, and one on his right hand, the tatoo on the hand being on the outside back of his hand. He testified he gave his brother the new shirt when he was visited at the jail. The tatoo on his right hand could be completely covered by the small finger of the district attorney, and when the appellant held a pistol in front of the jury, he testified he did not know whether or not the tatoo was noticeable to the jury or not.

Appellant strenuously and ably argues the trial court erred in overruling his motion to exclude the testimony of Mrs. Parker because showing her a single photograph of appellant immediately following his arrest was impermissibly suggestive and her in-court identification of appellant was not shown to be based upon an independent source. Thus, he was denied due process of law as provided in the Fifth and Fourteenth Amendments.

There was a valid purpose in the police officers showing Mrs. Parker the photograph of appellant the day of the robbery. Identification was important, not only to the State but the appellant as well. With her recollection of the robbery and appellant fresh on her mind, accuracy was more likely, and had she stated the photograph was not the same man who confronted her in the store, it is likely appellant would not have been charged with the robbery, although his conduct subsequent to the robbery was circumstantially quite suspect. See, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), 388 U.S. p. 301, 87 S.Ct. p. 1972, 18 L.Ed.2d p. 1206, wherein the suspect was taken to the hospital room of a victim.

The United States Supreme Court has criticized identifications which are suggestive, such as showing a single photograph of the suspect to an eyewitness to a crime; producing only the suspect (sometimes handcuffed) for identification by an eyewitness to a crime; also, showing a series of photographs but only one photograph possibly being the perpetrator of the crime (e. g., the perpetrator being blonde, and all photographs except one showing brunettes), or, in a lineup of several persons, only one person bearing any possible resemblance to the perpetrator (e. g., perpetrator being blonde, and all persons in lineup with exception of accused being brunettes). See, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), 388 U.S. pp. 227-235, 87 S.Ct. pp. 1932-1936, 18 L.Ed.2d pp. 1158-1162. The ideal, of course, is to seek to avoid identifications which have been prompted by suggestive procedures.

That Court, however, has not held failure to follow the ideal procedure for identification necessarily violative of due process, because such procedure in itself does not “intrude upon a constitutionally protected interest,” such as a warrantless search, or improper failure to afford counsel. See Kirby v. Sturges, 7 Cir., 510 F.2d 397, p. 406, cited in footnote to Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140, 432 U.S. p. 113, 97 S.Ct. p. 2252, 53 L.Ed.2d p. 153.

In investigating crimes and pursuing criminals law enforcement officers are charged with the duty of ferreting out the criminal, as well as protecting the rights of all persons suspected of crimes. A conscientious officer does the best he can with the means available to him. In identifying a criminal perpetrator it is not always possible, especially in rural communities such as the case here, to follow some textbook ideal. Such failure to take all possible precautions, except in the most unusual or manifestly suspect circumstances, should only go to the credibility of the identification testimony, not its competency. Juries are capable of weighing the testimony of eyewitnesses. The United States Supreme Court has recognized this. It is, therefore, a matter for the trial court, considering all circumstances surrounding the identification, to determine whether or not from the “totality of the circumstances,” the testimony pertaining to the identification should be admitted or excluded. The United States Supreme Court has given guidelines on admissibility in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), 409 U.S. p. 199, 93 S.Ct. p. 382, 34 L.Ed.2d p. 411, ahd cited in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). This test has been followed in Mississippi in the cases of Stewart v. State, 377 So.2d 1067 (Miss.1979), Scott v. State, 359 So.2d 1355 (Miss.1978), Fells v. State, 345 So.2d 618 (Miss.1977), and Bankston v. State, 391 So.2d 1005 (Miss.1980). The stated test from Neil v. Biggers, 409 U.S. p. 199, 93 S.Ct. p. 382, 34 L.Ed.2d p. 411, is as follows:

“We turn, then to the central question, whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (emphasis added)

As stated in Manson v. Brathwaite, 432 U.S. p. 114, 97 S.Ct. p. 2253, 53 L.Ed.2d p. 154, “... reliability is the linchpin in determining the admissibility of identification testimony ...”

From the facts revealed by the record, as set forth in this opinion, it is clear the witness Mrs. Parker satisfactorily met all the tests of Neil v. Biggers and there was no error on the part of the trial court in overruling the motion to exclude such testimony.

Complaint is also made of the refusal of the circuit court judge to give defendant’s instruction D-8:

“INSTRUCTION NO. D-8—FILED NOVEMBER 2, 1979
“The Court instructs the jury that the evidence in this case raises the question of whether the Defendant was in fact a criminal actor and necessitates your resolving any conflict in testimony on that issue.
“The burden of proof is on the prosecution with reference to every element of the crime charged and this burden includes the burden of proving beyond a reasonable doubt the identity of the Defendant as the perpetrator of the crime charged.
“If the State has failed to prove the Defendant to be the perpetrator of the crime charged beyond a reasonable doubt, then you shall find the Defendant not guilty.”

The first and third paragraphs of this instruction redundantly emphasize the sole point in issue, namely: was appellant the person who held the gun on Mrs. Parker and robbed her. The second paragraph alone contains a correct statement of the law and the trial judge might very well have given the instruction had it contained this single paragraph. We held in Newell v. State, 308 So.2d 71 (Miss.1975) it is discretionary for the trial judge to modify requested instructions.

No reversible error was committed by the trial judge in refusing this instruction in any form, however. Juries decide pertinent factual disputes in a case. We must accord them reasonable intelligence as well as reasonable fair-mindedness. Nothing could have been plainer to the jury in deciding this case than they had to believe beyond a reasonable doubt Mrs. Parker was correct in identifying appellant as the person who robbed her that day in the store. Without such belief, they were under a sworn duty to acquit appellant.

The trial judge had already given the jury two instructions which amply covered what the defense sought to additionally cover by this instruction. Instruction S-l instructed the jury they had to believe beyond a reasonable doubt appellant Johnny L. Miller feloniously committed the assault upon Mrs. Parker with a pistol and robbed her. Instruction C.14D instructed the jury the burden was upon the State to prove the defendant guilty of every material element of the crime, and concluded with this sentence:

“Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the Defendant is guilty.”

In Staten v. State, 30 Miss. 619 (1856) this Court stated a defendant on trial for a felony is entitled to have the law distinctly and precisely stated. 75 Am.Jur.2d Trial § 573, p. 588 states:

“The purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict, so far as it is competent for the court to assist them.”

23A C.J.S. Criminal Law § 1189, p. 471, states:

“Instructions are statements of the law applicable to the facts, and are given for the guidance of the jury in considering the testimony.”

The learned trial judge having once clearly and succinctly informed the jury of the law and their duty in arriving at a verdict, was under no obligation to repeat it in any form. Fisher v. State, 150 Miss. 206, 116 So. 746 (1928); Lacaze v. U. S., 391 F.2d 516 (5th Cir. 1968).

We find no merit in any of the other assignments, and it follows the conviction should be, and is hereby affirmed.

AFFIRMED.

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

PATTERSON, C. J., and SUGG and WALKER, JJ., specially concur.

SUGG, Justice,

specially concurring:

I concur in the results reached in this case but am of the opinion that Instruction D-8 requested by the defendant was a clear statement of the factual issue involved in this case. It homed in on the real issue— was the defendant one of the robbers?

In my opinion refusal of the instruction was not reversible error because the other instructions adequately covered the issue of identity and the burden of proof required by the state.

PATTERSON, C. J., and WALKER, J., join in this opinion.

      . These pages from the opinion, together with numerous footnote citations, show the peril of such identification. The opinion then contains the following conclusion, 388 U.S. p. 235, 87 S.Ct. p. 1936, 18 L.Ed.2d p. 1162: “The trial which might determine the accused’s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness— ‘that’s the man.’ ” (emphasis added)

      . INSTRUCTION NO. S-l - FILED NOVEMBER 5, 1979 IN THE CIRCUIT COURT OF STONE COUNTY, MISSISSIPPI
      STATE OF MISSISSIPPI
      VERSUS NO. 994
      JOHNNY L. MILLER
      INSTRUCTION NO. S-l
      The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that the Defendant, Johnny L. Miller, on or about the time and date charged and testified about, in Stone County, Mississippi, did unlawfully, wilfully and feloniously commit an assault upon the person of one Vickey Parker, with a certain deadly weapon, to-wit: a pistol, and did then and there feloniously put her, the said Vickey Parker, in fear of immediate injury to her person by the exhibition of the ‘said deadly weapon as aforesaid and with the unlawful and felonious intent to steal, he the said Johnny L. Miller did then and there unlawfully, wilfully and feloniously take, steal and carry away from the person and in the presence of and against the will of the said Vickey Parker, certain personal property, which she, the said Vickey Parker, being then and there an agent of John’s Discount Drugs, Inc., a Mississippi Corporation, located at Wiggins, Mississippi, then had in her custody or under her control, to-wit: 1 x 1000 Percódan; xh x 100 Percodan; 1 x 100 Preludin Enduret 75 mg; 1x7 Preludin Enduret 75 mg; 1 x 100 Preludin 50 mg; 1 x 20 Quaalude 300 mg; 1 x 7 Quaalude;
      2 Boxes Demorol Ampulee, approximately worth $200.00 and between $200 and $300 in American currency in denominations of $1.00, $50.00 and $10.00 and $20.00 of the personal property of the said John’s Discount Drugs, Inc., a Mississippi Corporation; then if you so believe from the evidence in this case beyond a reasonable doubt the defendant is guilty and it is your sworn duty to say so by your verdict.
      “GIVEN”
      J. R. G.


author: SUGG, Justice,

text:
    David Wayne HOLDEN v. STATE of Mississippi.
    No. 52618.
    Supreme Court of Mississippi.
    May 20, 1981.
    Rehearing Denied July 8, 1981.
    Fielding L. Wright, Jr., James H. Heidelberg, Wright & Heidelberg, Pascagoula, for appellant.
    Bill Allain, Atty. Gen. by Wayne Snuggs, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and LEE, JJ.
   SUGG, Justice,

for the Court:

David Wayne Holden was convicted of murder and sentenced to life imprisonment by the Circuit Court of Jackson County. On appeal Holden assigns as error the admission of testimony from his ex-wife and the refusal of a jury instruction.

On the night of December 3,1978, Holden shot and killed Boots Vice but testified that the killing was in necessary self defense. Doris Delaughter was the ex-wife of Holden but was married to him at the time of the homicide. The homicide occurred in the back yard at the residence of John Goff, the step-father of Doris Delaughter. At that time Doris Delaughter and Holden had been separated for five months and she was living at the Goff home with her three children, the youngest of whom was Holden’s child. On Friday, December 1, 1978, Holden had just returned from a hunting trip when he received a telephone call from his ex-wife, Doris. They agreed that Holden could come to the Goff residence to see his child. Holden remained at the Goff home until Sunday afternoon, December 3, and shortly before he left the Goff home, his ex-wife, Doris, testified that he told her, in the presence of five other people, “I’m gonna shoot Boots Vice and then I'm going to shoot you.” Holden denied making this statement.

On the night of December 3 Doris De-laughter saw Boots Vice, her paramour, at Oakwood, and later that night Boots Vice came to the Goff residence to spend the night. Doris testified that when Holden arrived at the Goff residence, she heard him blow the horn of his Volkswagen and call, “Boots Vice, come on outside, Boots Vice." Other occupants of the house also heard Holden call Boots Vice to come outside.

In his first assignment of error Holden argues that Doris Delaughter was not competent to testify over his objection because she was married to him at the time of the homicide. The homicide occurred on December 3, 1978, Holden was indicted by a grand jury of Jackson County at the April, 1980, term even though several intervening grand juries had been empanelled since the homicide, and trial was held on July 14, 1980. Doris Delaughter and David Wayne Holden were divorced after the homicide but before trial.

Holden states in his brief that the basis of his argument “is the common law husband and wife privilege now codified in Mississippi jurisprudence as section 13-1-5, Mississippi Code of 1972 as annotated and amended.”

Appellant’s argument overlooks the fact that section 13-1-5 has no application in the present case because the statute does not change the common law rule that the husband or wife may testify against the other after divorce, if the testimony does not relate to privileges communications. Hesdorffer v. Hiller, 111 Miss. 16, 71 So. 166 (1916). In Hesdorffer the question before the Court was whether the husband of Mrs. Hiller could testify about a transaction that occurred while the parties were married. The proof showed that the husband, after the transaction but before his deposition was given, was divorced from Mrs. Hiller. The Court held that the true common law rule was that a husband or wife may testify against the other after divorce, if the testimony does not relate to privileged communications, and neither could testify for the other because of the identity of interest. The Court then stated:

Mr. Wigmore, writing on this subject says:
“Nor is it material that the testimony relates to matters which occurred during the marriage. The few rulings taking the contrary view are misled by the analogy of a different privilege, namely, that which prohibits the disclosure of marital confidential communications.”
This is the crux of the whole matter: Does Mr. Hiller’s testimony disclose “confidential communications?” If not, he is a competent witness against his wife, all identity of interest having been destroyed by the divorce decree. This court had in mind the distinction made here when it decided the case of Whitehead v. Kirk, 104 Miss. 776, 61 So. 737, 62 So. 432, 51 L.R.A.(N.S.) 187. We used this language in that case: “Of course many things are said and done by husband or wife, which on their face bear no semblance of confidence.”
Section 1916, Code 1906, leaves the common-law rule applicable to the facts of this case as it originally existed. The statute removes the disability of the husband or wife on account of their identity of interest, and permits either to certify against each other “in all controversies between them.” For the purposes of this decision, we will assume that the statute has nothing to do with the present case, there being no controversy between husband and wife. So, at last, the common-law rule will control. We find that the testimony of Mr. Hiller does not disclose a confidential communication between himself and his wife. This being true the divorce decree removes all incompetency of the witness to testify. The husband and wife are no longer one. (Ill Miss, at 20, 21, 71 So. at 167)

In Dycus v. State, 396 So.2d 23 (1981), we followed Hesdorffer and held that former spouses are not disqualified from testifying against each other about statements occurring during the marriage, but they may not reveal marital communications made with the expectation of privacy. We held that since Elizabeth Dycus, the wife of defendant, was divorced from the defendant at the time of the trial, she was competent to testify about any oral communication made by Dycus in the presence of third parties provided he was without any reasonable expectation of privacy.

In the present case the common law rule controls. We find that the testimony of Doris Delaughter does not disclose a confidential communication between her and her ex-husband, David Wayne Holden. This being true, the divorce decree removed all incompetence of the witness to testify, and the court properly admitted her testimony.

In his second assignment of error Holden contends the court erred in refusing to grant the following jury instruction.

INSTRUCTION NO. D-14
When, as in this case, some evidence of self defense is offered by the defendant, the prosecution must then prove beyond a reasonable doubt that the defendant did not act in self defense. The defendant, in other words, does not have the burden to prove beyond a reasonable doubt he acted in self defense; if the evidence has created a reasonable doubt the defendant did act in self defense, you must find him not guilty.

Holden argues the refusal of this instruction shifted the burden of proof to the defendant. The state argues that the instructions as a whole adequately instructed the jury as to the state’s burden of proof.

It is a familiar rule that all instructions must be considered together, and if the instructions considered as a whole fully instruct as to the state’s burden of proof, the refusal of an instruction will not constitute reversible error. Sloan v. State, 368 So.2d 228 (Miss.1979). Instruction D-14 was a proper instruction; however, we are of the opinion that all of the instructions, when considered as a whole, fully instructed the jury as to the state’s burden of proof, and Holden was not prejudiced by the refusal of Instruction D-14.

AFFIRMED.

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

      . Section 13-1-5 Mississippi Code Annotated (Supp.1978), effective from and after July 1, 1978 provides:
      Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.

      . 1916. (1739) Husband and wife introduced by each other, etc. — Husband and wife may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. (See § 1679)


text:
    Cary M. COWAN and Donald L. Fader v. STATE of Mississippi.
    No. 52524.
    Supreme Court of Mississippi.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Donald J. Steighner, Colom & Mitchell, Columbus, for appellants.
    Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before ROBERTSON, P. J., and SUGG and HAWKINS, JJ.
   ROBERTSON, Presiding Justice,

for the Court:

Paul Carey, Cary Cowan and Don Fader were jointly indicted in the Circuit Court of Lowndes County for manslaughter in the killing of Partee DePriest, “a human being, by culpable negligence, without authority of law by the negligent operation of an automobile.” After a full trial, the jury returned verdicts of guilty as charged against Cary Cowan and Don Fader and a verdict of “not guilty” for Paul Carey. Cowan and Fader were each sentenced to 8 years confinement with the Mississippi Department of Corrections.

On September 29,1979, around 6:15 p. m., Don DePriest, his wife, Pattie, and their 11-year-old son, Partee, were traveling in a westerly direction on Bluecutt Road. De-Priest was driving, his wife Pattie was sitting on the front seat on the passenger side, and Partee was on the back seat. DePriest stopped at the intersection of Bluecutt Road and Highway 45. He waited about three minutes for traffic to clear, looked right and left and, seeing no traffic, proceeded into the intersection and began to make a left turn on Highway 45. DePriest noticed out of the corner of his eye “a wall of cars” coming north on highway 45 “at an exceptionally high rate of speed.” His Honda automobile was first struck by the car driven by Cowan around the windshield post on the left side. The car driven by Fader apparently hit the DePriest car a glancing blow as Fader attempted to go around the DePriest car on the left. The right front and rear fenders of Fader’s car were damaged. Fader kept going and never stopped. Carey, who apparently was racing the other two earlier but whose car did not hit the DePriest car, stopped and called an ambulance and the sheriff. When Fader was arrested the next day, his car had been repainted a different color.

Partee DePriest was badly injured; he had a massive skull fracture. He was transported by ambulance to the intensive care unit at Golden Triangle Medical Center where he remained for three days. During this period Dr. Wilson operated, removing a bone and elevating a depression on the left side of Partee’s skull. Partee’s brain stem began to swell and this affected his respiration. He went into respiratory arrest and had to be placed on a respirator. On October 3, Partee was transported to Ochsner Foundation Hospital in New Orleans. He never regained consciousness. Dr. Richard A. Coulon, Jr., a pediatric neurosurgeon, who treated Partee, on October 22, 1979, advised the family that Partee’s “brain had ceased to function as an organ and it was our opinion that it had ceased to function and this was irreversible.” Dr. Coulon advised the family that Partee was legally dead and that he would recommend taking him off of the respirator. The family agreed. Partee’s heart stopped within 20 minutes after the respirator was removed. Dr. Coulon testified that if Partee had been kept on the respirator his heart probably would have kept pumping for between “fifteen to thirty days at the most, perhaps even less than that.”

Appellants have assigned as error:

I. It was error for the trial court to permit a conviction of manslaughter where the attending physician in Louisiana disregards the Louisiana statute defining death and removes the ventilation from the injured patient causing the child’s spontaneously functioning heart to cease beating which results in his death.

II. It is error in Mississippi for a trial court to permit an undefined medically disputed term “brain death” to be equated with death of a person with no Mississippi statute of facts of the case on which to base the determination as to what criteria are to be used in equating brain death or death of the person if any, and who and under what circumstances such a determination can or cannot be made.

III. The trial court erred in excluding the testimony of witness Hubert Chandler as to the timing of vehicles traveling through the intersection of the fatal collision.

IV. The trial court erred in granting the instructions of the state, over the objections of the defendants, which defined culpable negligence without any statement that the wilful and wanton conduct must have been the proximate cause of the collision resulting in the death of the deceased.

V. The trial court erred in overruling appellants’ demurrer to the indictment on the ground that an indictment which does not contain such a description of the offense, as to notify the accused of the nature and cause of the accusation against him, is fatally defective. An indictment which charges a defendant with unlawfully, wil-fully and feloniously killing a human being by culpable operation of an automobile is ambiguous, vague and uncertain and is, therefore, fatally defective for failure to inform the defendant of the nature and cause of the accusation against him.

VI. An indictment which charges an offense in the words of a statute which generally defines an offense, is insufficient where it alleges the offense in the language of the statute, but does not state the specific acts on which the charge is based, and is not sufficiently definite to be of any value as a bar to further prosecution.

I. and II.

Dr. Coulon’s testimony was undisputed and uncontradicted that he followed Louisiana law in declaring Partee DePriest dead before the respirator was removed. He also testified that Ochsner Foundation Hospital used a combination of all three medically approved methods of determining whether a person is legally dead. Louisiana law provides in part:

“In the event that artificial means of support preclude a determination that these functions have ceased, a person will be considered dead if in the announced opinion of a physician, duly licensed in the state of Louisiana based upon ordinary standards of approved medical practice, the person has experienced an irreversible total cessation of brain function.”

Mississippi did not have such a statute when appellants were tried on May 21 and 22, 1980, but on March 24, 1981, the following act became law:

AN ACT TO ADOPT THE UNIFORM DETERMINATION OF DEATH ACT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. This act may be cited as the Uniform Determination of Death Act.
SECTION 2. An individual who has sustained either (a) irreversible cessation of circulatory and respiratory functions or (b) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.
SECTION 8. This act shall take effect and be in force from and after its passage.

In Thompson v. State, 220 Miss. 200, 70 So.2d 341 (1954), which involved a conflict of medical opinion as to whether the decedent’s death was caused by a stab wound and subsequent hemorrhage therefrom or other causes, this Court held that it was within the province of the jury to determine the cause of death. The evidence was positive and undisputed that the cause of Par tee’s death was the massive head injury sustained in the automobile accident. The jury was amply justified from the evidence in finding that Partee’s death was proximately caused by the culpable negligence of Cowan and Fader in racing through an intersection at speeds variously estimated by eyewitnesses from 70 to 100 miles per hour.

This Court said, in Schroer v. State, 250 Miss. 84, 160 So.2d 681 (1964):

“The unlawful act or omission of accused need not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the death, and, if it did, he is not relieved of responsibility by the fact that other causes also contributed. Moreover, responsibility also attaches where the injury materially accelerates the death, although the death is proximately occasioned by a preexisting cause.” 250 Miss, at 91, 160 So.2d at 684.

In State v. Johnson, 60 Ohio App.2d 45, 395 N.E.2d 368 (1977), a somewhat similar case, the Ohio Appeals Court said in pertinent part:

“As elaborated hereafter, the evidence was overwhelming that the blows Baum received from appellant were the cause of his death. What Dr. Walus did was to cease administering extraordinary measures to preserve life. His act could not conceivably be deemed the sole proximate cause of Baum’s death. It would have to have been such for the court to find it an independent intervening cause as a matter of law.
“Both witnesses who testified as medical experts for the state agreed on the cause of death. Dr. Walus stated that Baum died from ‘massive head trauma.’ Dr. Robert Ritterhoff, the deputy coroner of Hamilton County and the individual who performed the autopsy on Baum, testified that the cause of death was ‘skull fracture * * * caused by external force.’ At the time of the autopsy, which was conducted less than three hours after Baum’s death, Dr. Ritterhoff ‘* * * saw a dead brain that had been dead for some days.’ His conclusion, brought out on cross-examination, was that the discontinuance of supplemental oxygen to Baum was not a cause of death. Dr. Ritterhoff’s unequivocal and uncontra-dicted testimony was sufficient to establish the necessary causal connection between appellant’s criminal act and Baum’s death....
“... One who has inflicted an injury upon another is criminally responsible for his death, despite the fact that different or more skillful medical treatment might have saved his life, or that death was immediately caused by a surgical operation rendered necessary by the condition of the injury. ...
“The weight and sufficiency of expert and opinion testimony is a matter for the jury. In homicide cases involving the effect of expert medical testimony as to the cause of death, the general principle is that the injury need not be proved to be the direct or sole cause of death, as long as it started a chain of causation which resulted in or substantially contributed to the death.
“To sum up, we conclude that no act of Dr. Walus either in operating or in stopping the supplemental oxygen supply was, as a matter of law, an independent intervening cause so as to require the granting of appellant’s motion to acquit. We further conclude that there was ample evidence of probative value to support the jury’s conclusion that the acts of appellant were the proximate cause of Baum’s death.... ”
60 Ohio App.2d 45, 395 N.E.2d at 373-74.

The evidence establishing causal connection between appellants’ acts of culpable negligence and Partee DePriest’s death was overwhelming, and the jury was justified in so finding.

There is no merit in the first and second assignments of error.

III.

Although the appellants failed to cite a single authority in support of their third assignment of error, that the trial court erred in excluding the testimony of Hubert Chandler as to the timing of the vehicles traveling through the intersection at the time of the fatal collision, and although under Ramseur v. State, 368 So.2d 842 (Miss.1979), this Court is under no duty to consider this assignment of error, we have, nevertheless, given it some thought.

Chandler was not an eyewitness. He was later employed by the appellants to investigate the accident. He was allowed to testify as to distances and a diagram and chart prepared by him was admitted into evidence. He was not allowed to give his opinion or conclusion as to how long it would take to make a left turn from a dead stop and thus clear the intersection.

In Gandy v. State, 355 So.2d 1096 (Miss.1978), this Court held that an investigator may only testify to the position of the vehicles, marks on the highway, position of debris, glass and dirt where he saw them. It is for the jury to determine from the physical facts the point of impact and how the collision occurred. The officer is prohibited from expressing his opinion as to the position of the vehicle at the time of the collision, nor is he permitted to express an opinion as to the point of impact. See also Gandy v. State, 373 So.2d 1042 (Miss.1979). Lynch v. Suthoff, 220 So.2d 593 (Miss.1969), a civil case, involved testimony by a police officer as to the point of impact and the drawing and outlining on a map of the automobile showing its assumed direction. This Court found this testimony to be inadmissible. In Jones v. Welford, 215 So.2d 240 (Miss.1968), this Court stated:

“Considering these points chronologically, we discuss first the assignment with reference to the officer’s testimony as to ‘point of impact.’ The investigating officer cannot, of course, assume the duty of the jury and decide the issue as to how an accident occurred; nor can he give his opinion as to where a collision took place, based upon his observation as to the accident, nor give his opinion from what others told him. Standard Oil Co. v. Crane, 199 Miss. 69, 23 So.2d 297 (1945); Schumpert v. Watson, 241 Miss. 199, 129 So.2d 627 (1961).”
215 So.2d at 242.

From the foregoing authorities, it is clear that Chandler could not express an opinion as to the point of impact or how the accident occurred. Such testimony would have invaded the province of the jury and usurped its function.

The trial court was correct in excluding the opinion testimony of Hubert Chandler as to how the accident could not have happened based on his analysis of other witnesses’ testimony.

IV.

Although appellants shoot with a scatterbarrel gun under this assignment of error and do not draw a bead on any particular instruction, the gist of their argument seems to be that nowhere in the instructions was there a statement that the culpable negligence of the appellants, if any, must be the proximate cause of the fatal collision.

If this be the appellants’ criticism of the instructions, the answer is that instructions S — 1 (as to Fader), and S-3 (as to Cowan), and appellants’ own instructions (D-10 as to Cowan) and (D-29 as to Fader), inform the jury in very clear and positive terms that the evidence must show beyond a reasonable doubt that the fatal collision was the direct result of the culpable negligence of the defendants before a verdict of guilty could be returned against them, and that their culpable negligence must have been the proximate cause of the death of Partee DePriest.

This Court has repeatedly held that instructions must be read and considered as a whole and that when the jury is properly instructed considering all the instructions there is no error. Hutchinson v. State, 391 So.2d 637 (Miss.1980).

The instructions, when read together, correctly stated the applicable law and this assignment of error is without merit.

V. and VI.

The joint indictment charged that Paul Carey, Cary Cowan and Don Fader

“did unlawfully, wilfully & feloniously, kill and slay one WILLIAM HUNTER PARTEE DePRIEST, a human being, by culpable negligence, without authority of law by the negligent operation of an automobile, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi, in violation of Section 97-3-29, Mississippi Code, 1972, As Amended.”

The appellants were arraigned on November 26, 1979, whereupon they entered their pleas of “not guilty”. On December 4, 1979, appellants demurred to the indictment. On the same date, the state moved to amend the indictment by substituting § 97-3-47 for § 97-3-29. The state’s motion was granted and on December 14,1979, the appellants’ demurrer to the indictment was overruled.

In Dendy v. State, 224 Miss. 208, 79 So.2d 827 (1955), there was a similar indictment for manslaughter by culpable negligence. In Dendy, this Court said:

“[W]e think that the reference to the code section in the indictment was sur-plusage and unnecessary to the charge of the crime for which appellant was tried.... Here the offense was ‘certainly and substantially described.’ Code, § 2454 [§ 99-7-37 MCA (1972)] provides, ‘it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the Constitution.’ Manifestly there was a clerical mistake in the citation appearing in the indictment prior to its amendment. These statutes were intended to apply to a situation of this type. Appellant had ample and sufficient notice of the offense with which he was charged. ...” 224 Miss, at 213, 79 So.2d at 829.

Other late cases in which we have declared the citation of a statute in an indictment as surplusage are Moore v. State, 264 So.2d 414 (Miss.1972); Alston v. State, 258 So.2d 436 (Miss.1972); and Westmoreland v. State, 246 So.2d 487 (Miss.1971).

There is no merit in assignments of error V. and VI.

For the reasons stated, the conviction and sentence of Cary Cowan and the conviction and sentence of Don Fader are affirmed.

AFFIRMED.

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


author: HAWKINS, Justice,

text:
    In re Matter of the Extension of the Boundaries of the City of Long Beach, Mississippi. Mrs. Marjorie CURET v. CITY OF LONG BEACH, Mississippi.
    No. 52707.
    Supreme Court of Mississippi.
    May 27, 1981.
    Rehearing Denied July 8, 1981.

      Jerry 0. Terry, Greaves, Terry & Sheely, Gulfport, for appellant.
    Larry L. Lenoir, Gulfport, C. York Craig, Jr., Watkins, Ludlam & Stennis, Jackson, for appellee.
    Before PATTERSON, C. J., and LEE and HAWKINS, JJ.
   HAWKINS, Justice,

for the Court:

This is an appeal by Mrs. Marjorie Curet and others from a decree of the Chancery Court of Harrison County approving, ratifying and confirming an ordinance extending and enlarging the municipal corporate limits of Long Beach. We affirm.

Prior to the adoption of the ordinance on August 14, 1979, expanding the city limits, Long Beach comprised 2,050 acres, approximately three and one-half square miles. Its south boundary is the Gulf, its eastern boundary line coincided with the west municipal boundary line of the City of Gulf-port, and its western boundary coincided with the east municipal boundary line of the City of Pass Christian. The proposed area of annexation contains 4,350 acres, or approximately seven square miles to the north.

The city meticulously and thoughtfully prepared its case for presentation to the chancery court, and in a trial lasting some nine days, by lay and expert testimony, as well as voluminous documents and exhibits, clearly adduced substantial evidence under the statute and previous rulings of this Court to justify its expansion. The chancellor, after hearing the testimony and reviewing the evidence, rendered a detailed opinion completely endorsing this expansion.

The two main assignments of error (and the only ones we need note on this appeal) are the court erred in approving the extension ordinance, or at least in failing to diminish the area sought to be annexed. The proposed area of annexation, while quite large in comparison with the present corporate limits, was found by the chancellor to be reasonable. There is no need to specifically review the voluminous evidence in this case. Suffice it to say in his finding the chancellor was abundantly supported by the evidence under the criteria established in previous cases of this Court and the statute. See: City of Jackson v. City of Ridgeland, 388 So.2d 152 (Miss.1980); Extension of Boundaries of Horn Lake v. Renfro, 365 So.2d 623 (Miss.1978); Dodd v. City of Jackson, 233 Miss. 372, 118 So.2d 319 (1960); Bridges v. City of Biloxi, 253 Miss. 812, 178 So.2d 683 (1965); Smith v. City of Meridian, 237 Miss. 486, 115 So.2d 323 (1959); Mississippi Code Annotated Section 21-1-27 (1972); Mississippi Code Annotated Section 21-1-33 (1972).

The chancery court decree of May 5,1980, ratifying, approving and confirming the enlarging, extending and defining the corporate limits and boundaries of the City of Long Beach, Mississippi, being clearly supported by credible substantial evidence, it must be, and is hereby affirmed.

AFFIRMED.

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

      . From oral argument, we presume that the corporate limits of Long Beach at the time the ordinance in question was adopted were the same as when the city was originally incorporated.


author: WALKER, Justice,

text:
    CIG CONTRACTORS, INC. v. MISSISSIPPI STATE BUILDING COMMISSION.
    No. 52681.
    Supreme Court of Mississippi.
    June 3, 1981.
    Rehearing Denied July 8, 1981.

      Rolf L. Anderson, Reynolds & Johnson, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Richard E. Ul-mer, Sp. Asst. Atty. Gen., Donald Clark, Jr., McKibben, Tolbert & Associates, Jackson, for appellee.
    Before SMITH, P. J., and WALKER and BROOM, JJ.
   WALKER, Justice,

for the Court:

Cig Contractors, Inc. filed a declaration in the Circuit Court of the First Judicial District of Hinds County, Mississippi, against the Mississippi State Building Commission, seeking damages in the sum of $120,000 which were alleged to have resulted from the Commission’s breach of contract. The trial court sustained the demurrer to the declaration and Cig appeals.

The declaration alleges that Cig Contractors, Inc., and the Mississippi State Building Commission entered into a contract on February 17, 1975, for the construction of a portion of the physical science facility (chemistry building) at the University of Mississippi. This contract required Cig to be responsible for the concrete, masonry, and general contracting work on the project. The Building Commission entered into separate contracts with B. J. Lee Company for the mechanical portion; Warren Electric Company for the electrical portion; and Hamilton Industries, Inc., for the laboratory case-work portion.

The declaration further alleges that after the Building Commission issued the notice to proceed, Cig began the excavation work for the construction of the utilities tunnel which was to be built under the main structure of the project. After installing the utility tunnel, Cig backfilled around the tunnel as required by the plans and specifications. B. J. Lee Company then excavated down to the elevation required to install various mechanical pipes which entered the walls of the tunnel. After the back fill around the tunnel was put back in place under the inspection and observation of the Building Commission, Cig placed a concrete slab on top of the backfill. Sometime after the concrete slab was poured it was noted that one of the pipes extending out of a concrete wall in an area adjacent to the elevator shaft was tilted. Upon further investigation it was found that the pipe had no soil compacted around it. It became necessary for Cig to remove the concrete slab in order to rebuild and replace the subsoil which had eroded from under the slab.

In its declaration Cig seeks to recover $80,000, the repair costs incurred by Cig involved in removing and replacing the concrete slab and compacting the soil underneath it. The suit also seeks to recover from the Building Commission an additional $40,000 in overhead costs.

The declaration alleges that the Building Commission had the duty to test and inspect the soil prior to the placing of the concrete slab by Cig, quoting Section 2c of the specifications to the contract, which states:

Soils Testing and Inspection Service: Owner will provide soils testing and inspection service for quality control testing during earth-work operations.

The declaration also alleges that B. J. Lee Company, under its contract with the Building Commission, was to have packed in the dirt below the concrete slab in order to prevent water from entering the subgrade, and that the Building Commission’s failure to enforce these provisions of B. J. Lee Company’s contract damaged the work of Cig, requiring the extensive repairs. The declaration also alleges that the Commission’s actions or inactions were a breach of its implied promise and obligation to coordinate and cooperate with Cig and to do nothing which would hinder, delay or otherwise interfere with the performance by Cig of its contract.

To this declaration the Building Commission demurred, which demurrer was sustained by the trial court. The demurrer was grounded upon two theories:

(1) The Building Commission was not subject to suit because of sovereign immunity; and

(2) The declaration failed to state a cause of action.

The order sustaining the demurrer does not state upon which ground it is founded, but the parties agree that the lower court orally indicated that it was sustained upon the ground of sovereign immunity.

Much of the briefs of both parties addresses the question of whether or not the defense of sovereign immunity was waived by the legislature when it included in the power granted to the Building Commission by Chapters 280 of the Laws of 1956, the authority to “contract and be contracted with and to sue and be sued.” The appellee Building Commission contends that the authority to sue and be sued in contractual matters under this Act of the legislature is limited to certain “revenue producing projects.” However, in Horne v. State Building Commission, 233 Miss. 810, 823, 103 So.2d 373 (1958), a case which did not involve a revenue producing project, the Court commented on the applicability of that act saying:

Prior to the enactment of Chapters 280 of the Laws of 1956, approved April 5, 1956, there was no statute which conferred upon the State Building Commission the power and authority to sue or be sued.

Section 1 of the Act provides:

The State Building Commission created by Chapter 328, Laws of Mississippi, 1944, as amended by Chapter 276, Laws of Mississippi, 1946, and Chapter 467, Laws of 1950, is hereby continued as a public body corporate of the State of Mississippi and, in addition to the powers and duties otherwise prescribed by law, the State Building Commission shall have powers and duties hereinafter set forth and granted. (Emphasis added).

Although the question was not expressly before the Court in Horne, supra, we are of the opinion that Chapter 280 of the Laws of 1956 granting the State Building Commission the power to “ contract and be contracted with and to sue and be sued,” is supplemental to the existing general powers and authority of the State Building Commission in contractual matters and not limited to the “revenue producing projects” referred to in that Act. The portions of the Act which are limited to certain revenue producing projects are clearly and unambiguously so designated.

Moreover, this writer doubts seriously that this Court would uphold a claim of sovereign immunity in contractual matters between a subdivision of the State and individuals doing business with it. The general rule is that when the legislature authorizes the State’s entry into a contract, the State necessarily waives its immunity from suit for a breach of such contract. 81A C.J.S. States § 172 (1977). Where the state has lawfully entered into a business contract with an individual, the obligations and duties of the contract should be mutually binding and reciprocal. There is no mutuality or fairness where a state or county can enter into an advantageous contract and accept its benefits but refuse to perform its obligations.

Although this declaration may be inart-fully drawn, it is obviously an attempt to allege what amounts to a breach of contract, and therefore, the defense of sovereign immunity is not available in this instance.

The Building Commission also contends, that even if the lower court was wrong in sustaining the demurrer on the ground of sovereign immunity the decision should be affirmed if that decision was correct for any other reason, in this instance, if the declaration failed to state a cause of action.

The Building Commission argues that this declaration failed to state a cause of action upon which, the relief sought could be granted. It contends that the express provisions of the contract negative any allegations that the Building Commission owed any implied duty to coordinate the work of the separate prime contractors on this project. However, the plaintiff did not attach a copy of the contract to its declaration and nowhere in the record is a copy of the contract provisions to be found. In 17A C.J.S. Contracts § 535 (1963), it is stated:

Where a written agreement is pleaded in haec verba, its terms, rather than allegations pertaining thereto, control in determining the construction of the contract and the sufficiency of the pleading as against a demurrer. In such case an allegation inconsistent with the legal effect of the writing or putting a false construction thereon may be struck out as surplusage but is not ground for demurrer. On the other hand, where the contract is not set out in haec verba but only the substance, or the pleader’s construction of the provisions, thereof is stated, a demurrer to the petition must be ruled on the language of the petition, rather than the language of the contract. A further effect of a failure to set out the contract in haec verba is that a particular defect therein may be disclosed only by the evidence, and not by the pleading, and hence is not available on demurrer.

Although no recent Mississippi cases could be found on this subject, there is an old case which holds it is not necessary to use the words of the party, but the plaintiff may declare according to their legal effect, in declaring on a written contract. Mullen v. Jelks, 1 Miss. (Walk.) 205 (Miss.1825).

However, there are numerous cases from this State in which it is said that all well-pleaded allegations of a declaration must be taken as true in considering whether a demurrer should be sustained or overruled. Downs v. Corder, 377 So.2d 603 (Miss.1979); Poole v. Brunt, 338 So.2d 991 (Miss.1976).

If the allegation in the declaration that the Building Commission was to perform testing and inspection of the soil prior to Cig placing the concrete slab is taken as true, along with the allegation that the Building Commission failed to perform this obligation thereby causing damages to the plaintiff, then this declaration does set out a cause of action sufficiently to overcome the demurrer, and the lower court erred in sustaining same.

The Building Commission contends that this case is factually on all fours with Hanberry Corp. v. State Building Commission, 390 So.2d 277 (Miss.1980). However, in that case the express provisions of the contract were attached to the declaration, and the Court was able to determine that the express provisions negatived any allegation that the Building Commission had an implied contractual duty to coordinate the work of the three prime contractors and to see that the work of each was performed properly. Although this is the same, or substantially the same, allegation contained in this declaration, the express provision of this contract are not before the Court, and the Court cannot rely on them to affirm the sustaining of a demurrer. In this case, it must be assumed as true that the contract states what the pleadings say it states. If the contract does not state what the declaration says it states, the suit will no doubt fail on the evidence.

For the reasons stated above, the order of the trial court sustaining the Building Commission’s demurrer is reversed and this cause is remanded thereto for further proceedings not inconsistent with this opinion.

REVERSED AND REMINDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION.

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

      . Such grant of authority does not extend to tort claims. French v. Pearl River Valley Water Supply District, et al., 394 So.2d 1385 (Miss. 1981).