author: ROBERTSON, Presiding Justice for the Court: BOWLING, Justice, LEE, Justice, specially

text:
    Edward E. CASH v. ILLINOIS CENTRAL GULF RAILROAD COMPANY and Columbus Scrap Material Company, Inc.
    No. 51824.
    Supreme Court of Mississippi.
    Sept. 17, 1980.
    Ramsey, Bodron, Thames & Robinson, Bobby D. Robinson, Vicksburg, for appellant.

      Ward, Martin, Terry & Way, Burkett H. Martin, Heidelberg, Woodliff & Franks, W. Swan Yerger, Keith E. Henderson, Jackson, for appellees.
    Sherwood W. Wise, Wise, Carter, Child & Caraway, Jackson, 0. Winston Cameron, Deen, Cameron, Prichard & Young, Meridian, Erskine W. Wells, Wells, Wells, Marble & Hurst, Jackson, David Cottrell, Jr., Eaton, Cottrell, Galloway & Lang, Gulfport, Tally D. Riddell, Quitman, Francis T. Zachary, Hattiesburg, Fred B. Smith, Ripley, amicus curiae.
   ON PETITIONS FOR REHEARING

ROBERTSON, Presiding Justice for the Court:

The petition for rehearing filed by Illinois Central Gulf Railroad Company is granted, the original opinion withdrawn, and the judgment of the Circuit Court of Warren County, based on the jury verdict in favor of Defendant Illinois Central Gulf Railroad Company, is affirmed.

The petition for rehearing filed by Columbus Scrap Material Company is denied. This Court adheres to its ruling that an additur, increasing the $23,052.21 jury verdict to $50,000 and then applying the finding of the jury that plaintiff was 50% con-tributorily negligent, thus reducing the total judgment of $50,000 to $25,000, should be made. If the additur is accepted by Columbus Scrap Material Company within 15 days, then the judgment is affirmed as to Columbus Scrap Material Company. If the additur is not accepted, then the case as to Columbus Scrap Material Company will be reversed and remanded for a new trial on the question of damages alone.

The original opinion is withdrawn, and the following opinion substituted therefor:

Plaintiff, Edward E. Cash, brought suit against defendants, Illinois Central Railroad Company (ICG) and Columbus Scrap Material Company, Inc. (CSMC), in the Circuit Court of Warren County, for damages sustained by him when he stepped off of ICG’s lead gondola car onto a piece of scrap metal and injured his left knee.

Cash was 42 years of age at the time of his injury. He had worked mostly as a switchman for ICG since October, 1948. About 2:30 P.M., August 16,1973, Cash was on the lead gondola car as a lookout and signalman for the engineer as he pushed three or four railroad cars along the spur track in CSMC’s yard. It was Cash’s duty to look ahead to see if there was any scrap metal on the railroad right-of-way, which would block the railroad cars. If there was, he was to advise the engineer by radio to stop the train. It was also his duty as switchman to signal the engineer to stop the line of ears a few feet before it was to be coupled with a filled gondola car, and then Cash was to make the coupling between the filled and empty cars. Cash saw some scrap metal on the railroad right-of-way which he thought might hit his leg, so, as the line of cars proceeded at two-to-five miles an hour, Cash radioed the engineer to stop. As he stepped off of the ladder on the lead car, he inadvertently stepped on another piece of scrap metal and twisted his left knee.

Cash charged in his declaration that ICG breached its absolute, continuing and non-delegable duty to exercise reasonable care to furnish him with a safe place to work, and that ICG’s negligence constituted in whole or in part the direct and proximate cause, or a contributing cause, of Plaintiff’s accident and injuries.

He charged that he was a business invitee of Columbus Scrap, and that CSMC owed him the duty:

“[T]o exercise reasonable care to provide a safe place to work and to refrain from allowing the accumulation of scrap material in the pathways where they knew or by the exercise of reasonable care should have known that the Plaintiff would be required to work in performing his switching duties and rendering service [to Columbus Scrap Material Company].”

After a full trial, the jury returned these two separate handwritten verdicts:

“We, the Jury, find for the Plaintiff against Columbus Scrap Metal and assess his damages in the amount of $23,052.21.
We further find the Plaintiff guilty of contributory negligence & reduce the amount awarded 50%.”
“We, the jury, find for the Defendant, Illinois Central Gulf Railroad.”

In accordance with the jury verdict against CSMC, the court reduced the $23,-052.21 verdict to $11,526.11. A motion for additur was made on May 12, 1978, which motion was overruled by the court on September 12, 1978.

I.

Although appellant has assigned six errors committed by the trial court as to ICG, he concentrates on his second assignment of error, that

“THE COURT ERRED IN ALLOWING DEFENDANT RAILROAD INSTRUCTION NUMBER SIX WHICH INCORRECTLY APPLIED ASSUMPTION OF RISK AS A DEFENSE.”
ICG’s instruction D-6 reads:
“The Court instructs the jury that if you believe from a preponderance of the evidence that Plaintiff knew that there was debris alongside the railroad track, or in the exercise of reasonable care should have known of its presence, and that in stepping on such debris he did not exercise reasonable care and precaution for his own safety, then he was guilty of contributory negligence. The Court further instructs you that if you believe from a preponderance of the evidence that such contributory negligence on his part, if any, was the sole, proximate cause of the accident, then it is your sworn duty to return a verdict for the Defendant Railroad.”

Cash contends that D-6 is an assumption of risk instruction couched in contributory negligence terminology and thus violated Section 54 of the Federal Employers’ Liability Act, which provides:

“In any action brought against any common carrier under or by virtue of any of the provisions of this chapter to recover damages for injuries to, or the death of, any of its employees, such employee, shall not be held to have assumed the risks of his employment in any case where such injury or death resuited in whole or in part from the negligence of any of the officers, agents, or employees of such carrier . . (Emphasis added).

Appellant argues that by using the word “contributory” in Instruction D-6 ICG is admitting some fault on its part, and therefore appellant’s contributory negligence could not have been the “sole, proximate cause”. Cash contends that D-6 confused the jury and caused them to inadvertently bring in a verdict for defendant railroad company.

Plaintiff requested and was granted instruction 4, which reads:

“The Court instructs the Jury that under the Federal Employers’ Liability Act, the Plaintiff cannot be held to have assumed the risk of injury by accepting employment with the Defendant, Illinois Central Gulf Railroad Company, and if you find by a preponderance of evidence that the Defendant, Illinois Central Gulf Railroad Company, was negligent in failing to provide a reasonably safe place to work, and you further find that the Defendant’s negligence, if any, caused or contributed in whole or in part to the cause of Plaintiff’s injuries, if any, your verdict shall be for the Plaintiff and against Defendant, Illinois Central Gulf Railroad Company, in an amount of damages, if any, which may be shown by a preponderance of the evidence that he has incurred.” (Emphasis added).

Plaintiff thus was allowed by the court to instruct the jury in clear, specific, and forceful language that not only did Cash not assume the risks of his employment but also that if ICG’s negligence “caused or contributed in whole or in part to the cause of Plaintiff’s injuries, if any, your verdict shall be for the Plaintiff and against Defendant, Illinois Central Gulf Railroad Company.”

Plaintiff was granted 12 other instructions. Plaintiff’s Instruction P-1 read:

“The Court instructs the Jury that at the time of Plaintiff’s injuries the Illinois Central Gulf Railroad Company was under a continuing and non-delegable duty to exercise reasonable care to furnish the Plaintiff with a reasonably safe place to work, including safe pathways upon which to walk and work, and that such duty extended to any place the railroad sent him to work regardless of whose property he went on to perform that work.
“If you believe by a preponderance of the evidence that the Defendant, Illinois Central Gulf Railroad Company negligently failed to exercise reasonable care to furnish Plaintiff, Edward E. Cash, with a safe place to work and that such negligence, if any, contributed in whole or in part to cause his injuries, your verdict shall be for the Plaintiff and against Illinois Central Gulf Railroad Company.”

Plaintiff was also granted instruction P-3, which read:

“The Court instructs the Jury that under the Federal Employers’ Liability Act, the employee, Edward E. Cash, had a right to assume that his employer, Illinois Central Gulf Railroad Company, had exercised reasonable care with respect to providing a reasonably safe place to work, and if you find from a preponderance of all the evidence in this case that the Defendant, Illinois Central Gulf Railroad Company, negligently failed to provide a safe walk-way for its employee, Edward E. Cash, and that his injuries, if any, resulted in whole or in part as a result of said failure on the part of the Defendant, Illinois Central Gulf Railroad Company, then your verdict shall be for the Plaintiff, Edward E. Cash.” (Emphasis added).

Plaintiff’s instruction 18 advised:

“The Court instructs the jury that the Defendant, Illinois Central Gulf Railroad Company, and Defendant, Columbus Scrap Material, Inc., are relying upon a defense of contributory negligence on the part of the Plaintiff.
“However, the Court further instructs the jury that the defense of contributory negligence is an affirmative defense, and thus the burden of proof is on the Defendant, Illinois Central Gulf Railroad Company and Defendant, Columbus Scrap Metal, Inc., to establish by a preponderance of evidence that the Plaintiff is guilty of contributory negligence, if any.” (Emphasis added).

Both ICG and CSMC were granted instructions that, if the jury found that plaintiff’s negligence, if any, was a contributing cause of the accident, the jury could reduce any amount awarded in the proportion that his negligence contributed to the accident.

In Barnett v. Terminal Railroad Association of St. Louis, 228 F.2d 756 (8th Circuit, 1956), cert. den. 351 U.S. 953, 100 L.Ed. 1476, 76 S.Ct. 850, the Court said:

“While contributory negligence is not a defense to an action brought under the Federal Employers’ Liability Act yet where the negligence is that of the employee alone there can be no recovery. In Chicago, St. P., M. & O. R. Co. v. Arnold, supra, [8th Cir., 160 F.2d 1002, 1006] this court approved as proper an instruction that ‘if the jury found that the plaintiff was guilty of negligence and that his negligence was the sole proximate cause of the accident and his injuries’ the verdict should be for the defendant.” 228 F.2d at 761-62. (Emphasis added).

Appellant contends that Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943), sheds light on the problem with which we are confronted. Tiller is not applicable. Tiller reached the United States Supreme Court on a directed verdict for the defendant railroad company. The Supreme Court reversed, holding that it was a question for the jury.

Again appellant contends that Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), is applicable. Rogers is clearly distinguishable. In Rogers there was a jury verdict for the plaintiff. The Supreme Court of Missouri, 284 S.W.2d 467, reversed “upon the ground that the petitioner’s evidence did not support the finding of respondent’s liability.” The United States Supreme Court granted certiorari to consider the question of whether the decision invaded the jury’s function. Thus the main question in Rogers was whether there was sufficient evidence for submission of the case to the jury. The Supreme Court of the United States decided that there was, and reversed and remanded the case. The U.S. Supreme Court found no fault with an instruction similar to ICG’s Instruction D-6. That Court said:

“The jury was instructed to return a verdict for the respondent if it was found that negligence of the petitioner was the sole cause of his mishap. We must take it that the verdict was obedient to the trial judge’s charge and that the jury found that such was not the case but that petitioner’s injury resulted at least in part from the respondent’s negligence.” 352 U.S. at 505, 77 S.Ct. at 447-48, 1 L.Ed.2d at 498-99.

Plaintiff and both Defendants were careful to see that the jury was fully, completely and accurately instructed as to the law on their opposing theories of liability vel non. It is elementary that all instructions given the jury by the trial court must be read and considered together. Scoggins v. Vicksburg Hospital, Inc., 229 Miss. 770, 91 So.2d 837, 70 A.L.R.2d 368 (1957).

By its very actions in bringing in two separate and distinct verdicts, the jury clearly demonstrated that it had considered the instructions as a whole and fully and accurately understood the law. By its verdict for ICG, the jury found that the railroad had fulfilled its duty of exercising reasonable care to furnish the plaintiff a reasonably safe place to work and that, as to the railroad, the plaintiff’s negligence was the sole, proximate cause.

It was a different story as to Columbus Scrap Material Company. The jury, in its separate handwritten verdict, found that the plaintiff was guilty of 50% contributory negligence. MCA section 11-7-17 (1972) provides:

“All questions of negligence and contributory negligence shall be for the jury to determine.”

In affirming a jury verdict for the railroad company, the Supreme Court of Mississippi, in Orr v. Columbus & Greenville Ry. Co.., 210 Miss. 63, 48 So.2d 630 (1950), said:

“The initial inquiry in every negligence ease is not whether the plaintiff was negligent, but whether the defendant was. If the defendant is held not to have been negligent, the first bridge to be crossed collapses and the case ends. Upon a contrary finding it is elemental that such negligence must have proximately caused or contributed to plaintiff’s injury. If such causation is not found, the case collapses at this stage. If the injury is found to have been caused solely by the negligence of the plaintiff, this is of necessity an adjudication that the conduct of the defendant, even though negligent, contributed not at all'to the injury.
“We are of the opinion that the body of instructions properly submitted these issues and tests of liability, and that the record discloses no reversible error.” 210 Miss, at 70, 48 So.2d at 633. (Emphasis added).

We affirm the jury verdict for the defendant, Illinois Central Gulf Railroad Company.

II.

Columbus Scrap, in its single cross-assignment of error, contends that “the trial court erred in overruling the Peremptory Instruction requested by Defendant, Columbus Scrap Material Company, Inc.”

As stated heretofore, there was conflicting evidence and it was clearly a case for the jury to decide. The trial court was correct in overruling the peremptory instruction and in submitting this case to the jury to decide.

III.

After carefully considering the proof of damages and the fact that the plaintiff did file a motion for additur which the trial court denied, we are of the opinion that the jury verdict was contrary to the overwhelming weight of the evidence. It was virtually undisputed that from the time of his injury until the time of trial plaintiff had lost $89,368.68 in wages. Plaintiff was a 42-year-old man at the time of his injury. He had finished the eighth grade in school. He had worked for the railroad company since October, 1958, virtually all of his working life. The work of a railroad switchman was and still is heavy physical work, and this was all the plaintiff knew. He testified that he had tried but could not continue to do the heavy physical work of a switchman. He testified of his many attempts to find work that he could do, and his continuing failure to find such a job. When he could no longer work as a switch-man for the railroad, he not only lost wages but he also lost numerous fringe benefits. He had been forced to convert his group health insurance to- a personal plan, which cost him $98.00 a month.

Dr. John G. Caden, orthopedic surgeon, operated on Cash and removed the medial knee cartilage which was torn in the accident. Dr. Caden further found that Cash would not be able to return to his work as a switchman because of a combination of disabilities involving 15% permanent disability to the knee from the injury and a pre-ex-isting arthritic condition known technically as chondromalacia.

After considering all of these elements of damage, as well as his uncontradicted testimony of continued pain and suffering and his limited ability to do physical work around his home and for his family, we are of the opinion “that the damages awarded were contrary to the overwhelming weight of credible evidence,” [MCA section 11-1-55 (Supp.1979)], and that there should be an additur so as to increase the total verdict to $50,000. Then, in accordance with the jury’s verdict finding Cash 50% contributo-rily negligent, the total verdict of $50,000 should be reduced to $25,000. CSMC, of course, would then have the option of accepting or rejecting this additur. In the event CSMC does not accept this additur within 15 days from the date of this opinion, this cause will be reversed as to CSMC and remanded for a new trial on damages only.

AFFIRMED AS TO ILLINOIS CENTRAL GULF RAILROAD COMPANY; REVERSED AND REMANDED FOR A NEW TRIAL ON DAMAGES ONLY AS TO COLUMBUS SCRAP MATERIAL COMPANY, INC., UNLESS ADDITUR IS ACCEPTED WITHIN 15 DAYS; AFFIRMED ON CROSS-APPEAL OF COLUMBUS SCRAP MATERIAL COMPANY, INC.

SMITH, P. J., and WALKER, BROOM and LEE, JJ., concur.

LEE, J., and SMITH, P. J., specially concur.

BOWLING and SUGG, JJ., dissent as to part I but concur as to parts II and III.

COFER, J., dissents.

PATTERSON, C. J., took no part.

BOWLING, Justice,

dissenting:

I respectfully dissent from the majority opinion affirming the verdict for appellee Illinois Central Gulf Railroad Company.

In my humble opinion, the basic error in the majority opinion is that it does not recognize that the suit against the railroad company was brought solely under the Federal Employer’s Liability Act [45 U.S.C.A., §§ 51-56], and this Court is bound by the Federal Court interpretations of that act for many years. If appellant Cash had been injured while employed in this State by an employer other than a railroad company, his claim would, of course, have had to be made under the provisions of the Mississippi Workmen’s Compensation Act. The Federal statute completely preempts the compensation field in the case of injuries to railroad company employees and, as shown by the many cases over the years interpreting the Federal act, the courts are required to interpret it liberally, the same as we are required to interpret the Mississippi Workmen’s Compensation Act. In both, doubts legally should be resolved in favor of compensating an injured employee.

The basic provision of the Federal Act [commonly known as the FELA] is that the injured employee does not assume a risk incident to his employment in any case where such injuries resulted in whole or in part from the negligence of any of the officers, agents or employees of the railroad company [§ 54 FELA].

We take no exception to the majority opinion’s finding that in the event the injury was incurred solely as a result of negligence of the injured employee, he is not entitled to recover anything. A reading of defendant’s instruction D-6, with which we are concerned here, clearly shows that the instruction did not refer to sole negligence by the employee. It referred to his alleged “contributory” negligence which, without doubt, assumes that the railroad company also was negligent. With deference, the cases cited in the majority opinion deal with instructions to the jury as to the injured person’s “sole” negligence and not to his “contributory” negligence. An instruction involving the injured employee’s “contributory” negligence, as hereinbefore set out, obviously assumes some negligence on the part of the employer and under the comparative negligence doctrine, both in this state and in FELA, the only time this instruction would be proper would be when the injured person’s total recovery would be reduced in proportion to his negligence. There is no such qualification in defendant’s instruction No. 6. With deference, this instruction, along with the others mentioned in the majority opinion, could serve only to confuse the jury rather than charge the jury correctly as to the law involved.

The point I am making here was set out by the Fifth Circuit Court of Appeals in the case of Almendarez v. The Atchison, Topeka and Santa Fe Railway Company, 426 F.2d 1095 (1970), where the Court said the following:

The railroad first contends that the court erred in refusing to grant its request for an instruction on the defense of sole proximate cause. The requested instruction reflected the railroad’s main line of defense: that the plaintiff’s conduct in walking backward and failing to keep a proper lookout was contributorily negligent to the extent that it constituted the sole cause of the injury.
We agree with the plaintiff that the railroad’s theory to support its requested instruction is an attempt to engraft the common-law doctrine of sole proximate cause onto the Federal Employers’ Liability Act. The standards of liability for negligence under the Act must not be confused with those under the common law. This proposition, in the light of a requested instruction on sole proximate cause which was granted, was well stated by Judge Brown in Page v. St. Louis Southwestern Ry., 349 F.2d 820 (5th Cir. 1965):
“[0]rdinarily in FELA cases there is really no place for this issue in the jury submission as such. * * * This effort to cross-examine the jury-* * Meads only to confusion and a proliferation of metaphysical terms scarcely understandable to the most astute scholar. * * * “Of course the substantive law recognizes that if the negligence of the Employee is the sole cause of the injury or death, there is no liability, (citing cases). This is sometimes spoken of as the employee’s contributory negligence being the sole proximate cause, but this is both an inaccurate use of the term ‘contributory’ and seems to be wholly unnecessary since a jury, honestly determining that the injured employee’s actions were the sole cause of injury, necessarily finds (either on a general charge or by special interrogatories) that no act of the railroad, even though found to be negligent, played any part in bringing about the injury. * * * We ought to avoid those practices which ‘distract the jury’s attention from the simple issues of whether the carrier was negligent and whether that negligence was the cause, in whole or in part, of the plaintiff’s injury.’ ” 349 F.2d 826-827.

In regard to the above pronouncement of the Fifth Circuit, the same principles are laid down in Barnett v. Terminal Railroad Association of St. Louis, 228 F.Rep.2d 756 (5th Cir. 1956); Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and Tiller v. Atlantic Coastline R.R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610 (1943).

Therefore, I am of the opinion that the granting of the railroad company’s instruction No. 6 constitutes reversible error. I do not believe that this Court can interpret the Federal Employer’s statute involving railroad employees by allowing the jury to be instructed that “contributory” negligence completely bars the employee when, as stated, this definitely adjudicates that the employer was guilty of some negligence. Also, as hereinbefore seen, with this undisputed situation, the injured employee is entitled to recover if the employer is guilty of any negligence that contributed to the injury. As stated at the outset, this situation is brought about by the provision in the Federal statute of many, many years completely abolishing any assumption of the risk by the employee. The majority opinion abolishes the quoted section of FELA provisions, which is not our prerogative.

I am of the opinion that the erroneous instruction granted the railroad company was responsible for the verdict of the jury exonerating the railroad company. It is noted that Columbus Scrap obtained a proper instruction on contributory negligence, as follows:

The court instructs you that in the event that you should find that the plaintiff was negligent, as defined in any of the other instructions herein, and that such negligence proximately contributed to his accident and injuries, then it will be your sworn duty as jurors to reduce the damages which you would otherwise award him in such proportion as the negligence of the plaintiff bears to the entire negligence involved.

The jury found plaintiff was guilty of contributory negligence and reduced the verdict by the amount of the contributory negligence found by it. If the instruction for the railroad company had been couched in the same language as that of Columbus Scrap, I feel that the jury would have found for the plaintiff against the railroad company. The railroad company’s instruction is misleading because it authorizes the jury to find contributory negligence is a bar to recovery against the railroad company.

I would reverse as to the employer railroad company and remand the cause for a new trial under proper and nonmisleading instructions.

SUGG and COFER, JJ., join in this dissent.

LEE, Justice, specially

concurring:

I concur in the majority opinion.

The appellant contends that Instruction D-6 is erroneous in that the term “contributory negligence” indicated negligence on the part of the railroad company and it then told the jury that, if appellant’s contributory negligence was the sole proximate cause of the accident, the verdict should be for the railroad company. He further argues that the instruction confused the jury.

In my opinion, Instruction D-6 should not have been given in the language mentioned. It would have stated the law correctly with the word “contributory” deleted. However, after a careful examination of all instructions, and considering them together, I think that the jury could not have been confused or misled, and that the error was harmless. This is borne out by the fact that the jury found appellant to be guilty of contributory negligence in the amount of fifty percent (50%) as to Columbus Scrap Material Company, Inc., and reduced his damages accordingly.

SMITH, P.J., joins in this opinion.


source: Caselaw Access Project

author: SUGG, Justice, for the Court:

license: Public Domain

text:
    DOBBS-MAYNARD COMPANY, INC. v. Herschel G. JUMPER.
    No. 52049.
    Supreme Court of Mississippi.
    Sept. 24, 1980.
    Barrett J. Clisby, Roberts & Clisby, Oxford, George M. Mitchell, Jr., Eupora, for appellant.
    Fred B. Smith, Robert W. Elliott, Smith, Elliott & Fortier, Ripley, for appellee.
    Before SMITH, P. J., and SUGG and COFER, JJ.
   SUGG, Justice, for the Court:

Dobbs-Maynard Company, Inc., plaintiff, filed suit against Herschel G. Jumper for $46,350.99 plus interest from December 30, 1975 which plaintiff alleged was the balance due on a note executed by the defendant to the plaintiff on November 10,1975 in the amount of $58,850.99. The jury returned a verdict for the defendant, plaintiff appealed and assigned four errors. (1) The trial court erred by not sustaining plaintiff’s motion to strike defendant’s affirmative defenses as having no basis in law; (2) the court erred by not allowing portions of a transcript of a case tried in the United States District Court for the Northern District into evidence; (3) the court erred by failing to grant plaintiff’s motion for peremptory instruction; and (4) the court erred by not sustaining plaintiff’s motion for judgment n. o. v. or in the alternative by not granting a new trial.

The issue in the trial court was whether defendant owed plaintiff the balance due on the promissory note of November 10, 1975. Plaintiff contended that the note was given to it by defendant as payment or security for the campaign debt of defendant. Defendant raised the following affirmative defenses: (1) Fraud and misrepresentation of fact by plaintiff through its agent, Martinson; (2) lack or failure of consideration; (3) conditional delivery or delivery for a special purpose; (4) preexisting agreement and condition precedent; and (5) plaintiff was not a holder in due course of the note. The evidence introduced by each of the parties will be set forth in the opinion as each question is discussed.

I

WAS THE PLAINTIFF A HOLDER IN DUE COURSE?

The note in question was executed on November 10, 1975 at the Sun-N-Sand Motel in Jackson, Mississippi. The only persons present when the note was signed were Mike Martinson and the defendant. Mar-tinson is the president, sole stockholder, and general manager of Dobbs-Maynard Company, Inc., the plaintiff. According to Mar-tinson he had unsuccessfully attempted to collect the balance due on the account owing by defendant to the plaintiff. Martin-son stated that defendant executed the note representing the outstanding balance due on defendant’s campaign for Highway Commissioner of the Northern District and that he requested the note to be signed because a note is better security than an open account and he needed the note so he would have better protection, “If something like this came to pass, and it has come to pass.”

The defendant testified that he signed the note at the request of Martinson as an accommodation to Martinson, who told him he was in a financial bind and needed the note so he could show it on his financial statement in order to get a loan from a bank. Defendant testified that Martinson assured him that he would never see the note again and that its sole purpose was to let Martinson borrow money on a bolstered financial statement.

Plaintiff claims it is a holder in due course of the note under section 75-3-302 Mississippi Code Annotated (1972) which provides in part the following:

(1) A holder in due course is a holder who takes the instrument
(a) for value; and
(b) in good faith; and
(c) without notice that it is overdue or has been dishonored or of any defense against or claim to it on the part of any person.
(2) A payee may be a holder in due course.

Plaintiff contends that it took the note for value within the meaning of section 75-3-303 Mississippi Code Annotated (1972) which provides in part:

A holder takes the instrument for value
(b) when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due;

The payee of a note may be a holder in due course when the instrument was not delivered to the payee by the maker but by an intermediary or an agent of the maker. We cite three cases where courts of other jurisdictions have held the payee of a negotiable instrument is a holder in due course. S. & C. Transport Co., Inc. v. McAlister, 528 P.2d 1140 (Okl.1974); Eldon’s Super Fresh Stores, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 296 Minn. 130, 207 N.W.2d 282 (1973); Waterberry Savings Bank v. Jaroszewski, 4 Conn.Cir. 620, 238 A.2d 446 (1967). These cases illustrate the conditions under which a payee may be considered a holder in due course.

The Court of Appeals of Oklahoma, Division 1, held in S. & C. Transport Co., Inc. v. McAlister, supra, that the payee in four checks was a holder in due course under the Uniform Commercial Code. The checks in question were signed by McAlister, the defendant, and delivered to J. W. Pitts who completed the checks and delivered them to the plaintiff, S. & C. Transport Co. Pitts was engaged in the feed and grocery business but his credit rating had become strained and plaintiff would not continue to transport feed to Pitts except on a cash basis. Pitts and McAlister entered into a business arrangement under which McAlis-ter would deliver signed checks to Pitts to be completed by him and delivered to the plaintiff. The maker of the checks, McAlis-ter, did not deliver the checks to the payee, but delivery was accomplished by an intermediary, Pitts, so the court held that the payee was a holder in due course because it took the checks without notice of any defense on the part of McAlister.

In Eldon’s Super Fresh Stores, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, the Minnesota Supreme Court held that Merrill Lynch was a holder in due course of a check issued by Eldon’s to Merrill Lynch and delivered to Merrill Lynch by an agent of Eldon’s. The agent of Eldon’s, who delivered the check to Merrill Lynch, applied the check in payment of stock purchased by him, instead of purchasing stock for Eldon’s as instructed by his principal. The court held that Merrill Lynch was a holder in due course under the Uniform Commercial Code because it took the check without notice of any defense against it or claim to it on the part of any person. The court concluded that a payee could become a holder in due course to a check delivered from the maker by its agent and that negotiation from a prior holder was not necessary to make the payee a holder in due course.

In Waterberry Savings Bank v. Jaroszewski, supra, the Fourth Circuit Court of Connecticut held that where no representative of payee was present when a note was signed, and no agent of payee participated in negotiations leading to the execution of the note, payee was a holder in due course under the Uniform Commercial Code.

The facts in this case are distinguishable from the facts in the three cases cited above in that the note was executed in an arm’s-length transaction between an agent of the plaintiff and the defendant. Not only was Martinson an agent of the plaintiff, but was the president, general manager, and sole stockholder of the plaintiff corporation. Plaintiff, through its agent, Martinson, solicited and was awarded advertising work by Herschel Jumper in his bid for reelection as Highway Commissioner in the 1975 Democratic Primary. Martinson handled all the business of plaintiff in connection with Jumper’s campaign and had full knowledge of all the facts surrounding the debt owed by Jumper to plaintiff. Plaintiff, through its agent, participated in and had full knowledge of the transactions out of which the note arose. This participation and knowledge of plaintiff precludes it from being entitled to the status of a holder in due course.

II

SHOULD PORTIONS OF THE TRANSCRIPT IN THE FEDERAL CASE HAVE BEEN ADMITTED INTO EVIDENCE?

At the trial defendant testified that he did not owe the plaintiff “one dime.” However, defendant testified as a witness in the case of United States of America v. Edgar L. Boteler, Jr. on May 31, 1977 in the United States District Court for the Northern District of Mississippi as follows:

A. As I told him, many friends or citizens gave me contributions, throughout the campaign and prior to the campaign, that I used. Some of the money was my own personal money. After the campaign was over, I went to the Peoples Bank in Ripley and borrowed $20,000 to pay on the note, which I still owe most of. I went to the First American Bank in Corinth and borrowed $4,000 and paid on the campaign. Dobbs Maynard firm. Later on, Mr. Maynard called and needed some more money. My wife went to Kosciusko, where she was born and reared, and put her own personal property up for security and borrowed $5,000 to pay Dobbs Maynard on that campaign.
And according to the statements I still receive, I still owe some $43,000 on that campaign, of which I’m going to pay if they will give me the time and opportunity. This is how-and prior to that, I took money out of my own government check, disability check, and paid much of the expense for that campaign.
Let me assure you again, not one dime, by the way, of E. L. Boteler was ever spent in my campaign.
BY MR. FAWER:
Q. Just so it’s understood, Mr. Jumper, Mr. Moreton asked you some questions about how you funded your campaign. I think you said you got these contributions, some of your own money. Then he directed your attention to-after the campaign you had to borrow some money. Right?
A. Yes, I’ve borrowed money since the campaign. But I’ll pay them.
Q. Tell the jury, the cash we’re talking about, that was cash paid during the campaign?
A. Yes. I assume the case was paid during the campaign.
Q. The 20,000 you borrowed from Ripley you borrowed on September 22, 1975, and you got a draft for it and that paid a debt you still had to Dobbs Maynard, after you had paid them already $50,000 in cash and about $15,000 by check.
A. I do know that there is a note for the $20,000 and I sat at the president of the bank’s desk and called Mike Martin-son from his office and told Mike Martin-son to draw a draft for that amount.
Q. But that was after the campaign.
A. That was after the campaign, yes.
Q. But just so the jury understands, the 50,000 that you paid Dobbs Maynard in cash was during the campaign-
A. If the record says it was, I agree.
Q. Right. And the 4,000 from Corinth and the 5,000 additional-I don’t know, I think you said you borrowed that against some land. I’m not sure.
A. My wife borrowed 5,000 against her property-
Q. And those were all in 1976, payments by check, to further reduce the debt you had to Mike Martinson.
A. I don’t remember the exact dates. But it was late ’76-yeah, I would say it was in ’76 sometime. ’75, ’76.
Q. That is in addition to the $50,000 in cash that you gave to Mr. Martinson?
A. Why, sure, it would be in addition. And I still owe him more money.
Q. Because you signed a note for $58,-000 to Mr. Martinson. Right?
A. I didn’t remember, offhand, the exact amount.
Q. Refreshes your recollection, though, doesn’t it? That after the campaign, of the 140-
A. I don’t remember what it was then, but I know I paid some on it since then, yes.
Q. All right. The point is, during the campaign you paid him a total of approximately $100,000, half of it, $51,000, in cold cash.
A. You’ve got the record that he gave you. He didn’t give it to me.
MR. FAWER:
Could I have this document marked for identification?
THE COURT:
Let it be marked.
THE CLERK:
Defendant’s Exhibit No. 32 for identification.

Exhibit 32 was later introduced in evidence in the federal case and it was argued orally before this Court that Exhibit 32 and the itemized statement of plaintiff in this case are identical. We are unable to determine if Exhibit 32 is identical with the statement introduced in the state court for the reason that Exhibit 32 is not a part of the record before this Court.

Defendant pled several affirmative defenses and in support thereof testified that the plaintiff’s agency fee for the first primary was $25,000 and for the second primary $20,000. Defendant testified that Martinson agreed to forgive the agency fee of $45,000 if defendant was not successful in his bid for reelection. Defendant also testified, as heretofore noted, that he executed the note in 1975 as an accommodation to Martinson and not as an acknowledgment of the debt.

We are of the opinion that the testimony given by defendant in the federal ease in 1977 conflicts with his claim that the agency fee was forgiven by plaintiff. The trial court should have admitted the pertinent parts of the transcript in the federal case for consideration by the jury because they have an important bearing on the question of the credibility of the defendant as a witness in his own behalf in this case.

Other portions of the federal transcript have a bearing on this question and on retrial all pertinent portions of the transcript should be permitted in evidence.

Ill

CONCLUSION

We also hold that the evidence shows defendant was indebted to plaintiff for at least $10,000, and for this reason the verdict of the jury for the defendant was erroneous.

Exhibit 6 shows the balance to plaintiff on September 23, 1975 to be $58,850.99. Defendant did not challenge the accuracy of Exhibit 6 which is a summary of the charges and credits on defendant’s account with plaintiff. The balance of $58,850.99 was arrived at after giving defendant credit for all payments which he had made on his account with plaintiff. The invoice for the second primary agency fee of plaintiff was introduced in evidence. The second primary agency fee as shown by the invoice was $10,000; this is the amount that defendant was charged by plaintiff; and this amount was used to arrive at the balance of $58,850.99 due plaintiff. Both parties agree that the agency fee for the first primary was $25,000 and since defendant was only billed for $10,000 for the second primary agency fee, the total agency fee for both primaries was $35,000.

The jury returned a verdict for the defendant, thus accepting the testimony of defendant and two of his witnesses that plaintiff through its agent, Martinson, agreed to forgive an agency fee of $45,000 in the event defendant was not successful in his bid for reelection. Defendant and his two witnesses testified that the agency fee was $25,000 for the first primary and $20,-000 for the second primary. Obviously defendant and his witnesses are mistaken in their testimony that the agency fee for the second primary was $20,000, because defendant was only charged $10,000 for the second primary agency fee as shown by the invoice introduced in evidence.

We conclude therefore, that defendant was indebted to plaintiff for at least $10,-000 after defendant tendered into court a check for $1,350.99 to be applied on the agency account. The amount due is shown by the following recapitulation:

Balance due plaintiff by defendant on September 23,1975 (Exhibit 6).$58,850.99
Less payment by defendant in 1976 . 12,500.00
Balance after payments. 46,350.99
Less amount tendered by defendant . 1,350.99
Balance after tender. 45,000.00 Less agency fee charged to defendant
First Primary.$25,000.00
Second Primary. 10,000,00 35,000.00
Balance due after forgiveness of agency fee.$10,000.00

The final judgment does not direct delivery of the $1,350.99 check to plaintiff tendered by the defendant. We are unable to determine from the record whether the check was delivered to plaintiff. On remand, the trial court should direct the clerk to deliver the check to plaintiff if this has not been done.

Defendant raises for the first time on appeal the argument that defendant ratified the note by making payments on the note totaling $12,500. Plaintiff did not plead ratification and waiver in its declaration, did not plead ratification and waiver in its answer to the affirmative defenses of defendant, and the jury was not instructed on the issue of ratification and waiver. We therefore hold that the question of ratification and waiver is not before us on this appeal. We direct the parties attention to Briekell v. First National Bank, 373 So.2d 1013 (Miss.1979) as a case bearing on the question of ratification and waiver.

Plaintiff also argues that it was entitled to a peremptory instruction, that its motion for a judgment n. o. v. or in the alternative a new trial should have been granted. We find no merit in these assignments of error.

We therefore reverse and remand for a new trial because the trial court erred in sustaining an objection to the introduction of portions of the transcript of the federal case heretofore discussed, and because the jury verdict was erroneous in that defendant is indebted to plaintiff in at least the amount of $10,000.

REVERSED AND REMANDED.

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

PATTERSON, C. J., and WALKER, J., took no part.


text:
    J. Doyle SARTAIN and Mrs. J. Doyle Sartain v. Mrs. Bess WHITE.
    No. 52179.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    Gerald J. Diaz, Jr., Coxwell, Diaz & Vick, Thomas J. Lowe, Jr., Jackson, for appellants.
    Murray L. Williams, Water Valley, William K. Duke, Omar D. Craig, Oxford, Robert L. Williams, Southaven, for appellee.
   Appeal from Circuit Court, Yalobusha County; Andrew C. Baker, Judge.

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

AFFIRMED UPON CONDITION OF REMITTITUR.

SMITH, P. J., and SUGG, WALKER and BROOM, JJ., concur.

PATTERSON, C. J., and COFER, J., take no part.


text:
    Jimmie Holmes WARD v. BASIC ORGANICS, INC., et al.
    No. 52204.
    Supreme Court of Mississippi.
    Oct. 1, 1980.
    E. Howard Eaton, Taylorsville, for appellant.
    David M. Ratcliff, Pack, Ratcliff & Rat-cliff, Laurel, for appellees.
   Appeal from Chancery Court, Smith County; J. W. Walker, Chancellor.

Before SUGG, BOWLING and LEE, JJ.

AFFIRMED.


text:
    Donald Glenn GUYTON v. SMITH’S BAKERY.
    No. 52190.
    Supreme Court of Mississippi.
    Oct. 8, 1980.
    J. Tyson Graham, Graham, Segrest & Johnson, Columbus, for appellant.
    Kenneth W. Barton, Wendell H. Holmes, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, Walter W. Eppes, Jr., Meridian, for appellee.
   Appeal from Circuit Court, Lauderdale County; Henry Palmer, Judge.

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

AFFIRMED.


text:
    Genus ULMER v. STATE of Mississippi.
    No. 52092.
    Supreme Court of Mississippi.
    Oct. 8, 1980.
    Lampkin H. Butts, Laurel, for appellant.
    Bill Allain, Atty. Gen., by Robert D. Find-ley, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Jones County; James D. Hester, Judge.

Before WALKER, BROOM and BOWLING, JJ.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, LEE and COFER, JJ., concur.

PATTERSON, C. J., takes no part.


author: MADDOX, Justice.

text:
    KING COAL COMPANY, INC. v. Nile GARMON and Jimmy Garmon.
    79-20.
    Supreme Court of Alabama.
    July 25, 1980.
    Rehearing Denied Sept. 26, 1980.
    Finis E. St. John, III of St. John & St. John, Cullman, for appellant.
    B. Don Hale of Hale & Williams, Cull-man, for appellees.
   MADDOX, Justice.

This is an appeal by the defendant King Coal Company, Inc. from a judgment entered pursuant to a jury verdict in an action for breach of contract involving an agreement to strip mine coal.

In this opinion, we discuss three questions:

(1) Was there a sale of goods that would bring this transaction within the provisions of Article 2 of the Uniform Commercial Code?

(2) Was there adequate evidence to sustain the finding that the defendant breached the contract?

(3)' Could the plaintiff recover for the loss of profits he expected to make?

We answer all three questions in the negative and, therefore, reverse and remand the cause for a new trial.

Plaintiffs, Nile and Jimmy Garmon, were lifelong residents of Cullman County, Alabama. They had never been in the coal business for themselves prior to the transaction made the basis of this suit, although Nile Garmon had worked for the Drum-mond Coal Company for some 19 years.

Nile Garmon knew of the forty acres involved, that Bland McClendon owned the surface rights and that King owned the mineral rights. Nile succeeded in leasing surface rights from McClendon and then in contracting with King to mine the coal. The Garmons contacted an attorney in Cull-man who drew up the lease agreement between the Garmons and Bland McClendon and also advised them to do business as G & G Coal Company. Under the lease agreement with McClendon for the surface rights, McClendon was to receive $3.00 royalty per ton of coal mined from his property-

The initial contact with King was made by Nile Garmon and after several discussions an agreement was eventually reached. There was testimony that during these discussions, representatives of King, Roy Davidson and Sam Shiflett, explained to Nile Garmon that King had two contracts for the delivery of coal and none other. These contracts were with Alabama Power Company and United States Steel (TCI), which called for the delivery of metallurgical coal.

After the agreement was reached between King and the Garmons, they met in Cullman at the law office of James Thompson and the contract between the parties was drawn. The contract, which is made the basis of this suit, contained the following:

“H. King agrees to pay to miner, subject to the hereinafter set forth deductions, the sum of $20.00 per ton for each ton of Black Creek coal having less than 1% sulphur content and less than 8% ash content, loaded on the trucks of King at the mine. From said $20.00 per ton shall be deducted the following: . . .
“B. In the event that the coal removed from said property does not meet the standards as to sulphur and ash content heretofore set forth there shall be imposed against said $20.00 the same penalty as is imposed upon King by the purchasers of said coal from King.”

The coal mined by the Garmons did not meet the standards as to either sulphur or ash. There was testimony that “Black Creek Coal” meant metallurgical coal as opposed to the term “Jefferson Seam Coal” which meant steam coal. Nile Garmon testified about the difference as follows:

“Q (BY MR. HALE:) How long have you been around coal mines in the mining business, Mr. Garmon?
“A Since I was eighteen years old, approximately twenty years.
“Q Approximately twenty years?
“A Yes.
“Q At this particular time?
“A Yes, sir.
“Q You have been mining or around mining that whole time?
“A Yes, sir.
“Q Are you familiar with Black Creek coal?
“A Yes, sir, I am.
“Q Do you know what it looks like?
“A Yes, sir.
“Q Have you ever stripped any Black Creek coal before?
“A Yes, sir, I have.
“Q Have you ever stripped any Jefferson Seam coal before?
“A Yes.
“Q Do you know the difference between the Black Creek Coal and Jefferson Seam coal from just looking at it?
“A Yes, sir.
“Q Mining it?
“A Yes, sir. Well, not necessarily looking at it, by the specifications of what the coal runs and the ash and the sulphur content.
“Q Could you generally tell when you’re taking the overburden off of the coal, the rock formations, the crust, that sort of thing?
“MR. ST. JOHN: We object to that, he testified he couldn’t tell by looking at it.
“THE COURT: Did I understand you to say that you couldn’t tell by looking at it, Mr. Garmon?
“A Yes, sir, you can’t tell by that.
“THE COURT: Sustained.
“Q (BY MR. HALE:) Are jthere any indications other than an analysis of the coal whether or not it is Black Creek coal or Jefferson Seam coal?
“A Yes, sir, there is lots of different ways to verify it, the elevation of the coal most of the time, you run into Black Creek coal around five hundred foot elevation.
“Q Around five hundred foot elevation? “A Yes.
“Q Is Jefferson Seam coal usually found higher or lower?
“A Higher.
“Q Jefferson Seam is higher than Black Creek coal?
“A Yes, sir.
“Q When you say elevation there, you are talking about on a topo map?
“A Yes, the level on the elevation in this County, Black Creek coal is found between five, five fifty and six, in that area.”

When questioned about the agreement, Nile Garmon testified:

“Q Did you read the agreement, the contract before you signed it?
“A Yes, sir, I did.
“Q So, I assume that you saw the section that mentioned Black Creek coal? “A Yes, sir, I did.
“Q And you saw the section saying less than one percent sulphur content and less than eight percent ash content?
“A Yes, sir, I did.
“Q So, you knew at the time of the signing that the coal that you had to deliver would have to be within those specifications and be Black Creek coal or you would suffer a loss?
“A Yes, sir, I did.
“Q From the $20.00 per ton?
“A Yes, sir.
* * * * * *
“Q Did you produce and mine any coal from the property as you were required by the contract having less than one percent sulphur and less than eight percent ash, yes or no?
“A No.”

Metallurgical coal is a high grade coal, low in contaminants, used in the working of metals, while steam coal is low grade coal, with contaminants, used in producing heat at steam plants.

The penalty assessed against King by United States Steel for coal containing as much as 8% ash and 1.1% sulphur was rejection of the coal and Alabama Power’s contract allowed rejection of the coal if the sulphur content exceeded 0.6 pounds of sul-phur per one million BTU heat content, and suspension of future shipments.

After the coal was found not to meet the specifications of the contracts and was rejected by King, the Garmons ceased their mining operations. Efforts of King to assist in finding a buyer for the mined coal were unsuccessful, and the Garmons eventually sold it to Ray Marsh of Oneonta. A total of 1,911.83 tons of steam coal was delivered to Marsh which, after washing, was reduced to 1,296.34 tons. The washing decreased the volume of the coal by 32%, which was an unusually high loss. The Garmons were paid $14.12 per ton for a total of $18,304.32 by Marsh. The price per ton was reduced from $24.12 per ton to cover expenses of hauling and preparing the coal for sale.

I

Was there a sale of goods that would bring this transaction within the provisions of Article 2 of the Uniform Commercial Code?

Appellant contends that under the facts of this case, there was not a “sale” because “[I]t is elementary that a man cannot ‘sell’ that which he does not own.”

Counsel for the Garmons, on the other hand, submit that the subject contract was a contract for the sale of identifiable goods such that it would bring the transaction within the provisions of the Uniform Commercial Code. (Code 1975, § 7 — 1—101, et seq.) We agree with the appellant that the transaction here did not constitute a sale.

Generally speaking, under the U.C.C., the damaged party in a sales transaction has greater rights of recovery than he does under the common law in an action for breach of contract.

Code 1975, § 7-2-106(1) reads, in part, as follows:

■ “In this article unless , the context otherwise requires ‘contract’ and ‘agreement’ are limited to those relating to the present or future sale of goods. ‘Contract for sale’ includes both a present sale of goods and a contract to sell goods at a future time. A ‘sale’ consists in the passing of title from the seller to the buyer for a price . . ..” (Emphasis added.)

In this case, title to the minerals was held by King Coal by virtue of its agreement with a partnership composed of Taylor, Raines and Harrison. The Garmons held an interest in the surface rights by virtue of their lease with Bland McClendon. Under the facts of this case, there could be no sale of the coal from the Garmons to King, because the Garmons could not pass title to the coal; title was already in King.

The contract between the Garmons and King noted that: “King and miner [Gar-mons] are mutually desirous of removing the coal from the land described in the McClendon lease.” The contract further put third parties on notice that the instrument should not be construed as creating a partnership between King and the Gar-mons. Several clauses in the contract provided that the Garmons, as “miner,” were to remove the coal from the property.

388 So.2d —21

Nile Garmon, testifying on cross-examination, explained the arrangement:

“Q So, King Coal Company didn’t come to you and ask you to work out this deal, you went to them, is that right?
“A Yes, sir, I did.
“Q What was their first reaction?
“A Marvin Davidson was real interested. They had prior to that time, had people sub-contract mining in that area for them and they were interested in sub-contracting and he told me that they would be glad to work with me on it.”

We conclude that this transaction was not a contract for the sale of goods, and therefore, did not come within the provisions of the U.C.C.

II

Was there adequate evidence to sustain the finding that the defendant breached a contract? We think not.

The agreement which is made the basis of this suit contained the following provisions:

“H. King agrees to pay to Miner, subject to the hereinafter set forth deductions, the sum of $20.00 per ton for each ton of Black Creek Coal having less than 1% sulphur content and less than 8% ash content, loaded on the trucks of King at the time....
“(a.) * * *
“(B.) [sic] In the event that the coal removed from said property does not meet the standards as to sulphur and ash content heretofore set forth there shall be imposed against said $20.00 the same penalty as is imposed upon King by the purchasers of said coal from King.”

Although there was some testimony that the 2,000 tons of coal mined by the Garmons could have been “Black Creek coal,” there was no evidence that it, in fact, was “Black Creek coal.” There was no evidence that the coal minimally met the sulphur and ash specifications of the contract. The Gar-mons do not contend that the mined coal met the contract specifications. In their brief, the Garmons argued:

“In finding for the Plaintiff, the jury found that the defendant, King Coal Company, breached the contract. King Coal Company had an interest in the mineral rights by virtue of an agreement with the mineral owners of Taylor, Raines and Harrison. G & G Coal Company had an interest in the surface rights by virtue of an agreement with the owner of the surface rights, Bland McClen-don. King Coal Company agreed to purchase the coal or goods from G & G Coal Company under the April 6, 1977 agreement. By inference, the jury did not buy the story King Coal Company was selling that only black creek coal was to be purchased by them. We have both compensatory and loss of profits awarded by the jury.” (Emphasis added.)

As can be seen, the Garmons seek to sustain the jury verdict on the theory that they were selling coal to King. We have been unable to locate a case similar to the one here, but we are convinced, as we have already pointed out, that a person cannot “buy” what he already owns. King owned the mineral rights; therefore, the Garmons had no title to the coal. In any event, it is undisputed that the Garmons sold the coal which was mined by them and received $18,304.32 after expenses of hauling and preparing the coal were deducted. King received nothing, although the coal belonged to King. By making this point, we should not be understood as holding that King was entitled to receive anything, only that the Garmons were not left empty-handed.

We are aware that this Court has stated many times that verdicts are presumed to be correct and “that no ground in a motion for a new trial is more carefully scrutinized and more rigidly limited than that the verdict is contrary to the weight or preponderance of the evidence.” Deal v. Johnson, 362 So.2d 214 (Ala.1978). When a verdict is against the weight or preponderance of the evidence, and is wrong and unjust, this Court may grant a new trial. After reviewing the evidence in this case, we are of the opinion that the Garmons failed to prove by competent evidence that King Coal breached its contract obligations. The evidence is undisputed that the Gar-mons failed to show that they had produced coal which would meet the contract specifications. The penalty for non-compliance in this case was shown to be rejection of the coal. This Court is convinced that the finding that the defendant breached the contract is wrong and unjust. King’s motion for a new trial should have been granted.

Ill

Were the plaintiffs entitled to recover for loss of profits? We hold that they were not.

The record on appeal reads, as follows:

“THE COURT: Let the record show that we are out of the presence of the jury. Do you withdraw your demand, your request for loss of profits, you’re going to put in reversible error if I charge on it, on loss of profits.”

The court then overruled King Coal’s objection to the Garmons’ argument on loss of profits, but entered into the following colloquy with the attorney for the Garmons:

“THE COURT: ... You want me to charge on loss of profits?
“Mr. HALE: Do I want you to charge on loss of profits?
“THE COURT: Yes.
“MR. HALE: You are refusing then?
“THE COURT: You have the right, still to withdraw your request that the Court charge on loss of profits.
“MR. HALE: I need to talk to him and see if he wants to.
“THE COURT: You’ve got about ten minutes.”

The court charged the jury on loss of profits, but the court ordered the jury to make separate verdicts for compensatory damages and lost profits, if they found for the plaintiffs. The trial court erred in refusing to set aside the verdict for lost profits and in not granting to the defendant a new 'trial.

It is undisputed that the Garmons were engaging in a new business for which they had no record of past profits, expenses or overhead.

In Blankenship v. Lanier, 212 Ala. 60, 101 So. 763 (1924), this Court stated the general rule on the recovery of lost profits in a case sounding in contract:

“Hence, it has been generally, and we think correctly, held that ‘the gains or profits of collateral enterprises or subcontracts are, as a rule, too speculative and contingent to afford an element of recovery in the case of a breach of the primary contract.’ 17 Corp.Jur. 793 (section 115), and the numerous cases cited under note 82. Our own cases sustain this view. Reed Lumber Co. v. Lewis, 94 Ala. 627, 10 So. 333; Dickerson v. Finley, 158 Ala. 149, 48 So. 548. The only exception seems to be that ‘the loss of profits from the destruction or interruption of an established business may be recovered for, if the amount of actual loss is rendered reasonably certain by competent proof; but in all such cases it must be made to appear that the business which is claimed to have been interrupted was an established one, and that it had been successfully conducted for such a length of time, and had such a trade established, that the profits thereof are reasonably ascertainable.’ 17 Corp.Jur. 795-797 (section 117), and cases cited under note 95. And ‘where a new business or enterprise is floated and damages by way of profit are claimed for its interruption or prevention, they will be denied, for the reason that such business is an adventure, as distinguished from an established business, and its profits are speculative and remote, existing only in anticipation.’ Id., 797 (section 118).”

The cause is due to be reversed and remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TORBERT, C. J., and JONES, SHORES and BEATTY, JJ., concur.


author: EMBRY, Justice.

text:
    Willie CAULEY v. Ovid E. SANDERS et al.
    79-107.
    Supreme Court of Alabama.
    Aug. 15, 1980.

      Charles J. Kettler, Jr., Luverne, for appellant.
    A. R. Powell, Jr., of Powell & Powell, Andalusia, for appellees.
   EMBRY, Justice.

This is an appeal from a final judgment in favor of defendants, Ovid E. Sanders and Arva Nell Sanders, and against plaintiff, Willie Cauley. The judgment determined that neither plaintiff nor defendants were entitled to recover damages from the other for trespass; it set a boundary line between the lands of the plaintiff and defendants and held the defendants were the owners of certain disputed real property. We reverse and remand.

The center of this controversy is a small strip of land, approximately one acre, located in Covington County. The plaintiff and defendants both claim to own it.

The plaintiff Cauley initiated this action by filing a two-count complaint. Count one alleges that defendants had trespassed, and threatened to continue to do so, on land owned and possessed by plaintiff. In the complaint the land is described as follows:

“A lot or parcel of land described as follows: Commencing at the intersection of the North line of the NW Vi of NW Vi of Section 4, Township 5, Range 18 with the West side of U. S. Highway 331 and run thence South along the West side of said Highway for a distance of 1,281.6 feet to the point of beginning of the lot herein described, said point being 125.3 feet South of U. S. Highway marker P. C. Station 11 plus 89.2 and thence continuing South along the West line of said highway 203.2 feet; thence running South 88° 30' West for a distance of 280 feet; thence run North 64° 15' West for a distance of 198 feet; thence run North 9° 30' East for a distance of 324 feet; thence run South 52° 0' East for a distance of 191 feet; thence run South 75° 0' East for a distance of 305.5 feet to the point of beginning, said lot lying in the NW Vi of Section 4, Township 5, Range 18.”

Attached to this opinion as an appendix is a sketch of the real property involved in this litigation. The property above described includes both parcel “A” and “B” shown on the sketch. It is bounded on the North and West by a fence; a field road is its southern boundary and U. S. Highway No. 331 is its eastern boundary. It consists of approximately 3.76 acres. Count two alleges that plaintiff owns the property and requests the court to quiet title in the land against any claim of defendants.

The case was tried ore tenus. The evidence discloses that both the land owned by defendants, the Sanderses, and that owned by plaintiff Cauley was at one time the property of one Jim Olmstead. In December 1963, Jim Olmstead and wife conveyed parcel “B” to their son James Kenneth Olm-stead. In that conveyance the property was described as:

“* * * One acre in the SW-V* of NW-Vi of Section 4, Township 5, Range 18, described as follows: Beginning at a point on the West Section Line 145 yards North of the Southwest corner of said forty; run thence South to the said Southwest corner; thence East 35 yards; thence North 135 yards; thence Northwest to point of beginning, less that portion South of a field road.” (Emphasis added.)

The evidence also discloses that Jim Olm-stead had at one time owned parcel “A,” now occupied by Cauley. It is described as:

“ * * * Commencing at the intersection of the North line of the NW V* of NW Vt of Section 4, Township 5, Range 18, with the west side of U. S. Highway 331, and run thence South along the West side of said highway for a distance of 1281.6 feet to the point of beginning of the lot hereby described and conveyed, said point being 125.3 feet South of U. S. Highway Marker PC Station 11 + 89.2, and thence continuing South along the West line of said highway 203.2 feet to the South boundary line of said forty; thence running North 89 degrees and no minutes West 320 feet; thence running North 294.4 feet; thence running South 74 degrees and 22 minutes East 377.3 feet to the point of beginning, said lot lying in and being a part of the NW Vi of NW Vi of Section 4 Township 5, Range 18, containing 2 acres, more or less.”

Jim Olmstead mortgaged this land to the Veterans Administration, which foreclosed after Jim defaulted. It was eventually purchased by W. B. Spear and wife. In August 1966, Mr. and Mrs. Spear in turn sold this property to Cauley under a contract of sale; it described only two acres as shown. This two acre tract is located, along with other land, within an old fenced area which contains almost two acres more land than that purchased by Cauley. One of these additional acres was the strip, parcel “B,” that had been conveyed to James Kenneth Olm-stead. Cauley moved onto the land described in the contract of sale in August 1966.

In April 1978, James Kenneth Olmstead conveyed parcel “B” to the Sanderses. At the time he was not in actual possession.

The evidence tends to show that Cauley had occupied and used all the land located within the fence, approximately 3.76 acres, for a number of years; however, the evidence was in conflict as to the exact number of years he had actually used the land owned by James Kenneth Olmstead that was subsequently conveyed to the Sanders-es. Cauley, and witnesses in his behalf, testified plaintiff had used the land for ten years or more, while the Sanderses, and witnesses in their behalf, testified plaintiff had used the land for less than ten years.

The evidence further discloses that the events immediately precipitating the filing of this action occurred on or about 17 May 1978. On that date, in spite of warning by Cauley not to do so, Ovid E. Sanders, and his two daughters, who are not named in this action, crossed over a fence onto the one-acre of land, parcel “B,” deeded to the Sanderses by James Kenneth Olmstead. Sanders and his daughters entered the land in dispute and measured the boundaries as described in the deed from James Kenneth Olmstead. During this incident one of the daughters came in contact with, and cut, an electric fence which had been erected by plaintiff. At the time, Cauley kept horses confined within a fence surrounding the entire 3.76 acre tract: parcels “A” and “B,” plus a very small strip of land between the two parcels. The evidence in this case includes testimony of a surveyor which shows that the 3.76 acre tract contains more land than is described either in the deed to the Sanderses of parcel “B” or that which is described in the contract of sale by which Cauley acquired parcel “A.” In the appendix we show it as “uncertain.”

After the ore tenus hearing, the following decree was entered:

“This cause coming on for hearing before the Court and each of the parties being present and represented by counsel, the Court proceeds to hear the evidence orally.
“The Court finds from the evidence that neither party is entitled to recover damages from the other for trespass. The Court finds that the Plaintiff is the owner of the following described tract of land:
“ ‘Commencing at the intersection of the North line of the NW Vi of Section 4, Township 5, Range 18, with the west side of U. S. Highway 331, and run thence South along the West side of said highway for a distance of 1281.6 feet to the point of beginning of the lot hereby described and conveyed, said point being 125.3 feet South of U. S. Highway Marker PC Station 11 + 89.2, and thence continuing South along the West line of said highway 203.2 feet to the South boundary line of said forty; thence running North 89 degrees and no minutes West 320 feet; thence running North 294.4 feet; thence running South 74 degrees and 22 minutes east 377.3 feet to the point of beginning, said lot lying in and being a part of the NW Vi of the NW Vi of Section 4, Township 5, Range 18, containing 2 acres, more or less.’
And that the Defendants are the owners of all other lands described in the Plaintiff’s complaint. And that the true boundary is that portion of the description hereinabove set forth which adjoins the lands of the Defendants.
“It is suggested that the parties employ a surveyor to stake said boundary lines.
“It is further ORDERED AND ADJUDGED by the Court that the Defendants’ title to the lands which the Court has found them to be the owner of is quieted in the Defendants.
“It is further ORDERED AND ADJUDGED by the Court that the costs of this proceeding be and they are hereby taxed against the Plaintiff, for which let execution issue.
“Done and Ordered this the 31st day of May, 1979.”

Thus, it can be seen that the trial court determined Cauley to be the owner of parcel “A” and the Sanderses to be the owners of parcel “B” and that designated as “uncertain.”

The following three questions are presented:

(1) Was the trial court correct in implicitly finding that Cauley had not acquired title to parcel “B” by adverse possession?

(2) Was the trial court correct in finding Ovid Sanders not liable to plaintiff for a trespass?

(3) Did the trial court commit reversible error by finding that the Sanderses owned all the land described in Cauley’s complaint except for parcel “A” and then quieting title in the Sanderses to that land?

We answer one and two in the affirmative, but, because we also answer three in the affirmative, we are compelled to reverse and remand.

Cauley contends the trial court erred to reversal by finding he did not own all the land described in his complaint, including parcel “B.” He argues that he proved adverse possession of that parcel for more than ten years, therefore acquired title, and the trial court erred in concluding to the contrary. We disagree.

As mentioned, the evidence is disputed as to just how long plaintiff had actually been using the land in question. There was substantial evidence presented that Cauley’s use of parcel “B” was for a period of from five to eight years. Furthermore, the evidence indicates: (1) Cau-ley and the Sanderses are not actually coterminous owners; (2) Cauley had no color of title to parcel “B”; and (3) Cauley had not paid any taxes on the disputed land. Be reminded, the evidence was adduced ore tenus, and the findings and conclusions of the trial court thereon are given the same weight as a jury verdict; they will not be disturbed unless palpably wrong. Martin v. Howard, 293 Ala. 36, 299 So.2d 727 (1974). We hold the trial court’s finding that Cau-ley did not own parcel “B” is supported by credible evidence and it did not err in so finding.

Cauley contends the trial court committed reversible error by finding defendant Ovid Sanders did not commit a trespass on 17 May 1978. He concedes the evidence shows Arva Nell Sanders was not guilty of trespass. He does contend, however, that the evidence is undisputed that Ovid Sanders came onto parcel “B” after being warned not to and while he, the plaintiff, was in possession. Cauley argues that this unquestionably proves Ovid Sanders was guilty of trespass since trespass is interference with possession. We -find the trial court did not err in finding that Sanders did not commit a trespass.

We agree with the plaintiff that it is a general rule of law that trespass is a remedy for interference with a possessory right. Vasko v. Jardine, 346 So.2d 962 (Ala. 1977). The question of title, however, may be put in issue in a trespass action. Lacey v. Morris, 215 Ala. 302, 110 So. 379 (1926). It has long been a rule of law in Alabama that title to the particular land alleged to be the subject of a trespass, together with an immediate right to the possession of that land, is a complete defense to an action of trespass quare clausum fregit. Southern Railway Co. v. Hayes, 183 Ala. 465, 62 So. 874 (1913); Lacey v. Morris, supra ; Landrum v. Davidson, 252 Ala. 125, 39 So.2d 662 (1949); Womble v. Glenn, 256 Ala. 374, 54 So.2d 715 (1951); Southern Railway Co. v. Sanford, 262 Ala. 5, 76 So.2d 164 (1954); Gulf Oil Corporation v. Deese, 275 Ala. 178, 153 So.2d 614 (1963).

The reasoning behind the above mentioned defense to an action for trespass quare clausum fregit is astutely explained by Justice Mayfield in Southern Railway Co. v. Hayes, supra :

“This action is trespass quare clausum fregit and not trespass de bonis asportatis, or vi et armis against the person, nor is it forcible entry. The rule of law insisted on by counsel for appellees that the owner of land cannot take or retake possession of his own land by force applies to any one of the last three actions but not to the first mentioned. It is a perfect defense to an action of trespass quare clausum fregit to show that the defendant owns the land in question, and that he had, at the time in question, the right to enter; and the fact that he entered by force, over the protest of plaintiff, does not destroy his defense. If he uses more force than is necessary and injures the person or the property of the plaintiff, he is liable in an appropriate action; but that action is not quare clausum fregit. This action is to recover damages as for injury to the land, and if the plaintiff did not own the land, and his possession was wrongful, he could not suffer any damages, so far as the land was concerned, whatever damages he may have otherwise suffered in person or estate.
“It is very true, as contended by counsel for appellees, that a man cannot take the law in his own hands and right wrongs against him or his property by force, and that if he do so he is liable for the consequences of his wrongful and forceful acts; yet he must be brought to account in an appropriate action which the law has provided.

“It has ever been the law in this state that title to the particular land and immediate right to the possession was a complete defense to an action of trespass quare clau-sum fregit. It has likewise ever been the law in this state that, if the owner, in taking possession of his property, used more force than was necessary to regain the possession of his own, he was liable in damages for all injuries inflicted in consequence thereof and might also be liable criminally, and that in an appropriate action it is no defense that he was retaking possession of his own property. It is no defense to an action of forcible entry and detainer that the defendant owned the land and had the immediate right to possession; but this is a complete defense to an action of trespass quare clausum fregit. This has ever been the law in this state, certainly from 1833, the date of Duncan v. Potts, 5 Stew. & P. 82, 24 Am.Dec. 766, down to 1901, the date of Louisville & Nashville Railroad Co. v. Hall, 131 Ala. 161, 32 South. 603. In the latter case it is said: ‘As against a stranger, actual possession will support the action, without regard to whether plaintiff had title at the time of the alleged trespass. Duncan v. Potts, 5 Stew. & P. 82 [24 Am. Dec. 766]; Lankford v. Green, 62 Ala. 314. But, as against one having title to the property alleged to have been trespassed upon and having been wrongfully denied possession, in 26 Am. & Eng. Ency. Law (1st Ed.) 600, it is said: “One having title to property and wrongfully denied possession can enter without being guilty of trespass; so a tenant, mortgagor, or other person, without title, may have a present right of possession which will justify his entry or enable him, if in possession, to maintain trespass for the wrongful entry of. another.” See, in support of this proposition, note 1 on page 600 and note 1 on page 601 of the same volume where the cases are collated. This principle was recognized in Herndon v. Bartlett, 4 Port. 481, where the court held that the plea of liberum tenementum was an answer to a complaint in trespass quare clausum fregit alleging entry with force and arms and was proper matter for special plea. See, also, 26 Am. & Eng. Ency. Law (1st Ed.) 632-634.’

“As against a mere trespasser the plaintiff may recover in an action of quare clau-sum fregit by showing possession only, but as against the true owner, having immediate right to possession, of course, he could not. This is made clear by all the authorities. ‘Possession, whether founded on a good or bad title, will support the action against a stranger or wrongdoer. Or the possession may be tortious, and a wrongdoer cannot justify or excuse an invasion of and injury to it. Duncan v. Potts, 5 Stew. & P. 82 [24 Am.Dec. 766]; 2 Green. Ev. § 618. The title may be, and often is, drawn in question; the gist of the action is nevertheless the injury to the plaintiff’s possession.’ Lankford v. Green, 62 Ala. 314, 318. .

“The case of Morris v. Robinson, 80 Ala. 291, does not, in our opinion, decide to the contrary of what we now decide. There is a dictum in that opinion, quoted by appel-lee, which might be construed otherwise; but certainly nothing was decided in that case contrary to what is decided in this case. A judgment for the plaintiff in that case was reversed on account of an erroneous ruling as to evidence. If the affirmative charge could and should have been given in that case, without regard to the objectionable. evidence, the judgment would not have been reversed. Aside from the title, the plaintiff had shown as strong a case as the plaintiff has shown in this case. In that case ‘the plaintiff showed that he had been in possession of the land upon which the alleged trespass was committed for 25 years; that in March, 1884, the defendant, Morris, with two or three other men, came on the land, which was near plaintiff’s house, and informed plaintiff that he (Morris) had come to move the fence; that plaintiff notified Morris that if he moved the fence he would prosecute him; that Morris and those with him did move the fence about 20 yards, which cut the plaintiff off from his (corn) crib, stable, shop, and spring, besides turning out some of plaintiff’s fruit trees, which latter were injured by stock. Plaintiff testified that he recovered the land in a few days in an unlawful detainer suit before a justice of the peace.’ The learned chief justice who wrote that opinion clearly recognized the rule we have stated in this case that title and right to possession are sometimes material issues in actions of trespass quare clausum fregit. On this subject he spoke as follows: ‘In trespass quare clausum fregit, title is not necessarily in issue, although there are many eases in which it does become material. Possession is the great underlying fact which supports the action, but title is sometimes material in defining the extent of the possession. There are other points of view in which title sometimes becomes a material inquiry. 6 Wait, Ac. & Def. 64, 65. And it may become material in mitigation of damages. One having title, or honestly believing he has title to lands, who takes possession peaceably, in the honest belief he may do so, would receive less condemnation by a jury than if he were a willful trespasser, asserting no claim of right.’ 80 Ala. 294.

“The rule which we have declared in this case, and which was declared in the other decisions of this court cited above, is stated in Cyc. (volume 38, pp. 1047-1049) as follows: ‘Where the owner of land with right to immediate possession uses force in the exercise of his right to enter or retake possession, the question of his liability has been variously determined. The better opinion seems to be that title and right of possession is a good defense to a forcible entry by the owner of land on one holding possession, and forcible expulsion of such occupant or forcible removal of part of the realty. At any rate, the weight of authority is strongly against ever allowing an action of trespass to land against the owner of realty with immediate right to possession, and the rule has not been changed by statutes making forcible entry á crime or ground for civil action for restoration of possession; and the better opinion seems to be that in the absence of statute no civil action for damages lies against him in any form if no more force was used than was necessary, but that, if the personalty or the person of the occupant is injured by excessive force or by carelessness, the owner of the land is liable therefor.’

“In a Massachusetts case (Sampson v. Henry, 13 Pick. [Mass.] 36) the owner, a landlord, one or two days after the lease had expired, while the tenant’s wife was in travail, entered the land over the protest of the tenant and broke open the house in which the tenant was living; the tenant claiming that the lease had not expired. The tenant sued the landlord in trespass quare clausum fregit, and the court held that there could be no recovery in that action, though there might be a recovery as for other wrongs, offenses, and injuries.

“The theory is that this action is solely to recover damages as for injuries to the land or to the possession thereof; and, if the plaintiff did not own the land and had no right to the possession as against the defendant, then of course the former could suffer no damages as to the land or the possession; whatever damages he may have suffered in other respects, and as to other property or to person.

“In the case of Low v. Elwell, 121 Mass. 309, 23 Am.Rep. 272, this earlier case was reviewed, and the court through Gray, C. J., speaking of the case of Sampson v. Henry, 13 Pick. (Mass.) 36, said: ‘In the latter case, which was an action for breaking and entering the plaintiff’s close, and for an assault and battery upon him, the court held that the plea of liberum tenementum was a good justification of the charge of breaking and entering the house but not for the personal assault and battery. That decision, so far as it held that the landlord was not Hable to an action of trespass quare clausum fregit by a tenant at sufferance for a forcible entry, has been repeatedly affirmed. Meador v. Stone, 7 Metc. [Mass.] 147; Miner v. Stevens, 1 Cush. [Mass.] 482, 485; Mason v. Holt, V Allen [Mass.] 45; Curtis v. Galvin, 1 Allen [Mass.] 215; Moore v. Mason, 1 Allen [Mass.] 406. And so far as it allowed the plaintiff to recover, in such an action, damages for the incidental injury to him or to his personal property, it has been overruled. Eames v. Prentice, 8 Cush. [Mass.] 337.’ ” 183 Ala. at 476-481, 62 So. 877.

Count one of Cauley’s complaint clearly alleges trespass quare clausum fre-git. The trial court found, and the evidence supports that finding, the Sanderses to be the owners of parcel “B”. Furthermore, there was no evidence that Ovid Sanders used excessive force to enter onto the land. Therefore, because the Sanderses had purchased the land, and Cauley had no legal right to ownership or possession of it, the Sanderses had a perfect defense to the trespass action and the trial court correctly so ruled. Such a defense is not, however, available as to the parcel designated “uncertain,” unless title could be established in the Sanderses. We cannot conclude, contrary to the findings of the trial court, that the Sanderses trespassed on the parcel designated as “uncertain.”

Cauley also contends the trial court erred by finding the Sanderses to be the owners of all the land described in his complaint except for parcel “A,” the land described in his contract of sale. We agree that this particular finding is not supported by the evidence and therefore, reverse and remand.

The Sanderses only claimed to own parcel “B,” described in their deed from James Kenneth Olmstead. Indeed, the evidence only shows that the Sanderses own the property described in that deed. Cauley’s complaint contains a description of land neither described in the Sanderses’ deed nor in Cauley’s contract of sale: “uncertain,” as shown by the appendix. Ownership of this “no-man’s” land was not litigated below. We assume, but do not, and cannot decide, that ownership of this “no-man’s” land still rests with its original owner, Jim Olmstead; however, this question will have to be resolved in a different action. In any event, the trial court erred to reversal by quieting title to it in the Sanderses. On remand the judgment should be corrected accordingly.

For the reasons assigned, the judgment is hereby reversed and the case remanded for entry of judgment not inconsistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

TORBERT, C. J., and FAULKNER, AL-MON and SHORES, JJ., concur.

      . There appears to be a discrepancy between the defendants’ deed describing their property as being the “SW ‘A of NW ‘A” and the balance of the record indicating the land is in the NW-'/t of NW-‘A but apparently no issue was made of this.