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I sister-in-law, Mrs. Mitchell, who formerly , failed to disclose any act of moral turpitude,

had the child in her possession, and secured or any of delinquency on the part of the possession of the child, and took it to her child, or that it had ever violated any law home in Picayune; and, subsequently learn- of the state or municipality. ing of the order of the court committing said Monroe Smith, father of the child and child to the Industrial Training School, filed former husband of the appellant, testified a 'petition with the circuit court, praying that, after his return from the army, he that said order be set aside and revoked or found his wife and Holden living in adultermodified to the extent that said child should ous relations on a certain plantation in the not be committed to the said school, and a county, and that his wife proposed that, if vacation order made and she be not commit- he would give her a divorce, she would let ted until the application of the mother could him take the child, Susan, which he did, be heard. The judge thereupon signed an and placed it with his sister, as above stated. order reciting that all parties were not ready It is further shown that in August, 1919, the for the reinvestigation of said cause and the appellant obtained a divorce from Monroe trial of same; that said girl was being prop- Smith, and married M. J. Holden, in January, erly cared for; and that the hearing of the 1920; that since this marriage there is no matter was postponed until some day during charge or act proven showing any immoral the November term of the circuit court, the act or delinquency on the part of the appelparticular date of the hearing to be fixed by lant. On the contrary, the proof shows that the court after it was assembled on the first she is living a proper life with her present Monday in November; that all parties in

husband. terested in said matter acknowledged notice

Treating the case as being pending before of said hearing, and agreed to be present the court properly at the November term, and present their respective contentions.

and conceding for the purpose of this opinAt the November term of the court the ion that the court had the right to hear the court heard the evidence on behalf of all the original petition, and that all parties were parties, and refused to vacate the original before him so as to give him full and comorder made in April by him, and ordered the fails to make out a case warranting the or

plete jurisdiction, we still think the proof child committed to the said institution. It appeared upon the hearing on the part of 1916, chapter 111), creating the Industrial

der of commitment. The original act (Laws of Mrs. M. J. Holden that she married her Training School, and providing for admispresent husband in the year 1920; that for sion of children therein, provided for in secmore than two years prior to the hearing tion 4969 of Hemingway's Code (section 6, they had been living in the town of Picay- chapter 111, Laws of 1916), thatune, and that the said child attended the public schools at that place, and had never

“Any child less than eighteen years of age, been convicted of violating any municipal residing or being at the time in the state of

Mississippi. or state law; and that said child was a

"(a) Who violates any municipal ordinances good, obedient child, and was being properly or state laws, when the violation involves for cared for by Mr. and Mrs. Holden. The su- the purposes of tuis act, shall be known as a perintendent of the said school testified that delinquent child. she had never'violated any of the school reg

“(b) Who is destitute or homeless, or abanulations, and was an average child; that he doned or is in such an evil and immoral ensaw no evidence of maltreatment or evil vironment that such child is likely to develop character. The town marshal testified that from and properly directed and trained, or

into criminal practices unless removed therethe child had never violated any law, had whose environment seems to point to a criminal never been convicted of violating any law, or career, shall for the purposes of this act be charged with violating the law, and that known as a destitute or abandoned child.” Mr. and Mrs. Holden were apparently kind and considerate of the child,

Section 6, chapter 111, Laws of 1916 (sec

and enjoyed the reputation for peace and order and in- tion 4969, Hemingway's Code), was amended dustry, and that he had never seen any evi- April 4, 1922, Laws of 1922, chapter 195, so dence of maltreatment of the child.

as to provide as follows:

The Holdens' family physician testified to like

What Children to be Admitted to the School. effect.

-Section 6. Any child less than eighteen years It was shown that Mr. Holden lived in siding or being at the time in the state of Mis

of age, and not less than seyen years of age rehis own home, and was earning upwards of sissippi may be admitted to said institution, $125 per month, and had only his wife, the in the future, on the following conditions, and child in question, and a child of his own to no other: care for.

"(a) Where such child has violated any muHe testified that he desired the child to nicipal ordinance or state law, when the violalive with them, and had treated and would tion thereof involved moral turpitude. treat it as though it were his own child. The shall certify in writing that such child is either

"(b) When a circuit judge or a chancellor petitioner's testimony, or the testimony of immoral, delinquent, or incorrigible in the opinthe Smiths who filed the original petition, ion of such circuit judge or chancellor, and

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(100 So.) shall file said written certificate with the su-, such custom, but relied upon a telephone comperintendent of said institution as a pre-munication between himself and the principal requisite of admission."

for the authority of the agent to draw the draft. Section 8 of the act (chapter 111, Laws 2. Appeal and error Om 1064(1)-Giving of erof 1916 [section 4971, Hemingway's Code]), roneous instruction as to custom held not

oured. provides for the filing of a petition, and

In such case the error is not cured by the "upon the filing of such petition, if it sball fact that the draft was given for lumber purappear that either parent or guardian of said chased for the principal by the agent and rechild resides in this state, the clerk shall issue tained by the principal, though the jury might a summons to such parent or guardian directing have been under duty to find from the testihim to appear and produce such child at the mony that the agent had authority to make bearing of said petition, at the time and place the draft on his principal. appointed, and show cause, if any, why such child should not be adjudged to be a delinquent or neglected child within the meaning of this

Appeal from Circuit Court, Hinds Counact, and such summons shall be served not less ty; W. H. Potter, Judge. than five days before the date set for the hear

Action by T. B. Gaddis against J. T. Allen. ing, unless service be waived."

Judgment for plaintiff, and defendant apSection 24 of chapter 111, Laws of 1916 peals. Reversed and remanded. (section 4987, Hemingway's Code), provides

Watkins, Watkins & Eager, of Jackson, for for an appeal

appellant. "from the order of any court, judge or chan Howie & Howie, of Jackson, for appellee. cellor committing any child to the State Industrial and Training School or committing any child to the custody of any person."

ETHRIDGE, J. The appellee Gaddis sued

the appellant on a draft in the following Of course, for the judge to find and certify words: in writing that such child is immoral, delinquent, or incorrigible requires evidence,

"$600.00

8/12/1922. and he cannot on hearing commit the child

"Thirty days after date pay to the order of as incorrigible, delinquent, or immoral, when W. H. Miles six hundred and no/100 dollars,

value received, and charge the same to there is no evidence to support such finding

count of

J. D. Williams. in the record. It is clear that the child is 'To Mercantile Lumber Co., Jackson, Miss.” innocent of any wrongdoing, and the law Indorsed on back: “W. H. Miles." does not warrant a commitment to the institution under the facts disclosed in this

The declaration alleges that before the ex. record.

piration of the 30 days named, the same was The judgment will be reversed, and the indorsed by W. H. Miles and delivered to the petition for commitment of the said child plaintiff for valuable consideration, and it will be dismissed, and the child left with its thereupon became the property of the plainmother until further order in a proper pro tiff and has continued to be since that time ceeding in the proper court for the custody and still is the property of the plaintiff. It of the said child.

further alleges that the draft was signed by Reversed and dismissed.

J. D. Williams, and the plaintiff was informed by the defendant that it would be paid, and acting upon such authority bought and paid for the draft the full face value there

of. When the draft was presented for payALLEN V. GADDIS. (No. 23978.) *

ment, payment was refused, and afterwards

suit was brought thereon. (Supreme Court of Mississippi, Division B. The plaintiff's testimony is: That about May 12, 1924.)

the time the draft is dated, and before (Syllabus by the Court.)

the maturity thereof, Miles presented the

draft to him, requesting that it be cashed. I. Principal and agent w 194(2)-Instruction as to custom and usages held improper to That the plaintiff thereupon called up the ofshow agent's authority to draw draft.

fice of appellant in Jackson, Miss., and asked Where a person is engaged in business un

for Mr. Allen and asked him if the draft was der a trade-name and has a manager operat- all right and if Williams had authority to ing a part of the business who is authorized to draw the draft, and was informed by the buy lumber for the account of his principal, person talking that it was all right. That which manager gives a draft on his principal thereupon he cashed the draft, and before its signed by himself, and such draft is not paid maturity placed it in the bank for collection, on presentation, it is error to give an instruc- and it was returned unpaid. That waiting tion as to the custom of dealing between principal and other parties in the community with

some time afterwards expecting the draft to reference to such drafts, where the purchaser be paid, he wrote a letter to the appellant of the draft did not know of and rely upon requesting him to pay the said draft. That For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Susgestion of error overruled June 9, 1924.

an error.

in response to the said letter the appellant | hatchie and that he, the appellant, operated replied as follows:

the paying department from the Jackson of“We have yours of the 23d desiring to know fice, and that when Williams bought lumber if we could mail you our check now for $600.00, he generally gave a sigbt draft and furnishto cover draft given by Mr. J. D. Williams to ed the appellant at the Jackson office a memMr. W. H. Miles. I am sorry to advise you orandum of the transaction, and in such casthat we will not take care of this draft.

es he paid such drafts. He testified that a matter of fact, this draft was given to Mr. Miles was in debt to him at the time of the Miles simply through accommodation to him transaction and owed him money on a confor a few days in order that he might ship tract which they had before arranged by us enough lumber to take up the draft when it was due, so in view of the fact as soon as

which the appellant advanced Miles by way Mr. Miles got this draft he simply refused of accommodation large sums of money to to ship us any more lumber, and the draft was enable Miles to conduct his business and furgiven him with the understanding that he was nish the appellant lumber. to ship enough lumber to take up the draft It was shown by Williams' testimony on when it was due. “As to the writer giving out any informa- from some 10 or 12 small mills around-Pela

cross-examination that he purchased lumber tion from our office that we would take care of any draft given by Mr. Williams, this was hatchie, Miss., and that he usually paid for

We, of course, cash Mr. Williams this lumber by a draft drawn as in the presdrafts when they are given to parties to whom ent case. we are due, and Mr. Williams immediately no- The plaintiff's testimony was that he had tifies this office to this effect sending in credit only bought two drafts, the present one and memorandum. In this instance the writer knew

one prior draft drawn by Williams, and it nothing of this draft being given, as it was a

is also shown that he did not know Allen little personal arrangement between Mr. Miles and Mr. Williams, so we are under no obliga- personally and could not swear to his voice tions whatsoever to cash this draft and you

so as to identify it in the phone conversawill have to look to Mr. Miles for the money.” tion, and also testified that he relied upon

the phone conversation in the transaction. Plaintiff proved by Miles, the payee in this

There was a verdict for the plaintiff, and draft, that the draft was given him in pay- the defendant appeals and assigns several of ment of lumber delivered to the Mercantile the rulings and instructions for error. Lumber Company and that he had never

The court instructed for the plaintiff that been paid otherwise for the lumber and that if the jury believe from a preponderance of he did not owe the Mercantile Lumber Com- the evidence that the defendant got the lumpany, under which name Allen the appel- ber for which this draft was given and has lant was doing business, anything. Miles not returned the same, they shall find for the also testified to the conversation over the plaintiff. The jury was also instructed for phone in support of Gaddis' testimony.

the plaintiff that it is not material what Williams, the drawer of the draft, testified secret agreement or instructions the defendthat he was employed by the Mercantile ant gave Williams, if this was not known to Lumber Company or J. T. Allen, as manager the public with whom he was dealing, and of the operating part of the business of the if the jury believe from a preponderance of appellant at Pelahatchie, Miss., and that he the evidence that the defendant and Wilalso bought lumber on behalf of the appel- liams conducted the business in such way as lant. He testified that he had no aùthority to lead the public and the plaintiff to reato draw a draft except with the consent of sonably believe that Williams did have authe appellant, but that when he bought lum-thority to issue drafts like this to find for ber he usually gave a sight draft on Allen the plaintiff, and that one dealing with an for the payment thereof, and in such cases agent of another where the agent is acting that Allen accepted such drafts. He testi- about the business of his principal that he fied, however, that Allen did not accept all had the right to act upon the customary way drafts drawn on him by said Williams. Wil of the principal's method of allowing his liams' testimony with reference to the giving agent to conduct his business, and if the jury of the draft in the present case is that he believe from a preponderance of the evigave the draft to enable Miles to load and dence that the defendant held out Williams deliver lumber to the appellant so that he

as his agent and authorized him to draw could pay his labor for the loading and haul- drafts like this one in payment for lumber, ing and manufacture of the lumber.

to find for the plaintiff regardless of secret The appellant testified for the defense his agent. The court further gave the fol

understandings between the defendant and and denied having the conversation over the

lowing instruction: telephone with Gaddis, and also testified that Williams did not have general authority to

“The court instructs the jury for the plaindraw drafts on him in the business and that tiff if you believe from the preponderance of he could only draw drafts when authorized the evidence that Mr. Gaddis purchased the He testified that Williams was managing the any claim of defense to the payment of same

draft in question without any knowledge of operating department of the business at Pela- by Mr. Allen, and that Mr, Allen customarily

(100 So.) paid drafts of similar kind issued by Mr. J. D. tiff should have rested his case upon that Williams in the regular course of his business, ground. Allen testified that Miles owed him then you should find for Mr. Gaddis, the plain- | money already advanced to him, and that tiff, regardless of whether the lumber was or

Miles bad delivered a load of lumber in paywas not delivered by Miles or whether Wilment of the former advance, and that all of liams reported the issuance of the draft or not."

it had not been paid. Williams' testimony, it

believed, shows that the draft was given to Also:

enable Miles to bring in other lumber. We "The court instructs the jury for the plain think the case must be reversed for the error tiff that, if they believe by the preponder- above indicated and the cause remanded for ance of the evidence that the defendant ratified a new trial. the act of Williams over the telephone, they In view of the fact that there must be a new shall find for the plaintiff.”

trial, we think it competent to introduce evi[1] The court instructed for the defend-dence in reference to the conversation over ant that in order to establish a business cus- the telephone, and that, taking all of the facts tom of dealing so as to bind the defendant, in evidence, it is for the jury to say whether it is not sufficient to show by the evidence or not that was an admission of the authorthe occurrence of a few isolated instances ity of Williams to draw the draft here inin reference to the matter and custom sought volved. It is not competent for the purpose to be shown to have been established, but of establişhing a verbal acceptance because the manner and method of dealing must have an acceptance must be in writing, but it is been sufficient to have created in the minds competent to establish Williams' authority to of those dealt with the fact of such custom. draw drafts which the appellant would be And further that in the case before you it bound to accept. As the authority of his was necessary for the plaintiff, T. B. Gaddis, agent may be established by admissions, and to have known of said custom, and in addi- | if the agent had authority to issue the draft tion relied upon said custom, in order to here involved, then it would be a binding obhold the defendant liable for the draft ligation, because it would be equivalent to drawn, and that the burden of proving this the appellant drawing upon himself, was upon the plaintiff.

Reversed and remanded. In view of Gaddis' testimony that he did not have knowledge of the dealings with other parties and that he relied upon the telephone conversation with the Jackson COPIAH HARDWARE CO. V. JOHNSON. * office in purchasing said draft, we think the

(No, 24139.) instruction given the plaintiff to the effect that the custom of Allen in dealings in which

(Supreme Court of Mississippi, Division B.

May 12, 1924.). Williams was permitted to draw drafts, and that they would find for the plaintiff regard

(Syllabus by the Court.) less of whether lumber was delivered by Landlord and tenant On 297(1) - Lessee who Miles or was not, or whether Williams re failed to renew lease before expiration of exported the issuance of the draft or not, was isting term held not entitled to notice to vaerror. The evidence with reference to the

cate. issuance of these other drafts waş admissible

When a lease contract for one year stipfor the purpose of showing that Williams in ulated “the party of the first part has this fact bad authority to issue such drafts in day rented and leased to the parties of the

second part

for one year from Nopayment of lumber purchased and for the vember 1st, 1917, at a monthly rental, etc., purpose of showing the probability of the with the privilege and right of the parties of plaintiff's theory that the defendant admit- the second part or their assigns to renew this ted this authority over the telephone. And lease for one year at a time,” etc., and the the question should have been submitted to subsequent notices given the lessor of renewal the jury on the other features of the case de- fixed the beginning and ending of the lease, giv. veloped by the plaintiff.

ing specified dates, and failed to renew the

lease by giving notice for a renewal until after [2] It is insisted by the defendant that re

the expiration of the last lease, the lease exgardless of whether this is error or not, the pired at a fixed time, and notice to vacate was judgment should be affirmed because Miles unnecessary under section 2380, Hemingway's testified that the draft was given for the Code (section 2882, Code of 1906), and the purchase of lumber and that that is not spe- lessor had the right to remove the lessee under cifically denied and that the plaintiff was the provisions of section 2383, Hemingway's entitled to recover at all events if that be Code (section 2885, Code of 1906). true. We are not prepared to say on the whole

Appeal from Circuit Court, Copiah Counrecord that Miles' testimony is not disputed, ty; E. J. Simmons, Judge. but if the record does show that there is not Action by Mrs. Serena Johnson against really a dispute about the matter, the plain the Copiah Hardware Company. Judgment For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*Suggestion of error overruled June 16, 1924.

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for plaintiff, and defendant appeals. Af- | its lease of the building occupied by it in the firmed.

conduct of its business. See, also, 123 Miss. 624, 86 South. 369.

“Now, therefore, in consideration of the fact

above stated, and further consideration of Wilson, Henley & Hendrick, of Hazelhurst, $1.00 cash in hand paid, we, the firm of Britfor appellant.

tian & Henry, hereby transfer, assign, and M. S. McNeil, of Hazelhurst, and Flowers convey our lease and all rights and privileges & Brown, of Jackson, for appellee.

thereunder to the building which has been recently occupied by us, it being the purpose

hereby to convey and transfer all the rights, ETHRIDGE, J. Mrs. Serena Johnson and powers, and privileges which we ourselves obBrittian & Henry entered into a lease contained and hold under a certain contract entract for a two-story brick building situated tered into between ourselves and Mrs. Serena in Hazelhurst, Miss., on the 22d day of Sep Johnson on September 22nd, 1917, with refertember, 1917. Said contract read as follows: ence to the rental of the store building owned

by her on the south side of Estelle street in “State of Mississippi, County of Copiah. the city of Hazlehurst. "This contract and lease made this the 22nd

"Witness our signatures this the 15th day of day of September, 1917, by and between Mrs. April

, 1918. [Signed] Brittian & Henry. Serena Johnson, party of the first part, and

"A. Henry." Brittain & Henry, parties of the second part,

On the 26th day of October, 1918, the Copwitnesseth:

"That the party of the first part has this iah Hardware Company notified Mrs. Johnday rented and leased to the parties of the

son by letter of their intention to renew second part the two-story brick building owned the lease for one year from the 1st of No by the party of the first part, and situated on vember, 1918; said letter reading as follows: the south side of Estelle street in the city of

"October 26th, 1918. Hazlehurst, for one year from the 1st of November, 1917, at a monthly rental of forty Dear Madam: On the 15th day of April, 1918,

“Mrs. Serena Johnson, Hazlehurst, Miss.($40.00) dollars per month, with the privilege the Copiah Hardware Company purchased and and right of the parties of the second part or had assigned to it the lease of the store buildtheir assigns to renew this lease for one year ing which you had made to Brittian &' Henry at a time before or after November 1, 1918, ag

of Hazleburst, Miss., a copy of the said lease, long as they may desire to do so, at the same

we hand you herewith. rental as aforesaid and on the same terms and

“Under the provisions of your lease contract, conditions embraced in this lease. "It is understood and agreed that the party tian & Henry, have the right to renew our

we, as the assignees of the said firm of Britof the first part will repair the floor of the lease for the said building from year to year said building and put it in good condition at by giving you written notice of our intention once and also put good substantial window shutters to all the back windows of said build on or before November 1st annually. ing and take out fire place and mantel now in it is our intention and desire hereby to renew

"This is to give you notice, therefore, that said building and fix the rear doors in a sub- the said lease contract according to its terms stantial manner, and also will paint the front and provisions, for one year from November of said building inside and out, and will here- 1st, 1918, and as much longer thereafter as after keep said building in good repair as long

we may choose, according to the terms of the as occupied by said parties of the second part

said contract. or their assigns.

"Yours very truly, "The party of the second part shall have the

“[Signed] Copiah Hardware Company." privilege of taking out the platform or substory in the rear end of said building, and to

On October 10, 1919, the said Copiah Hardmake any additions and improvements and ware Company notified Mrs. Johnson of their shelving in said building that they may desire, intention to renew the lease on said building and to remove said improvements and shelving, etc., whenever they may desire.

for another year beginning November 1, 1919, "Witness the signatures of said party of the and extending to November 1, 1920, the refirst and second part this the 22nd day of Sep- newal to be in strict accordance with the tember, 1917.

terms of the original lease contract. On No“[Signed] Mrs. Serena Johnson.

vember 1, 1920, appellant gave Mrs. Johnson "[Signed] Brittian & Henry."

notice by letter that they expected to renew

the contract for the rental of said building On the 15th day of April, 1918, Brittian for another year, “beginning November 1st, & Henry transferred this lease to the Copiah 1920, and extending to November 1st, 1921. Hardware Company; said assignment being The renewal to be in strict accordance with in the following words:

the terms of the contract referred to above." "Whereas, the firm of Brittian & Henry has On October 17, 1922, the appellant mailed transferred and conveyed all of its stock of to the appellee another letter giving notice goods, wares and merchandise and business of their intention to renew the contract for conducted in Hazlehurst, Mississippi, to the the rental of the said building for another Copiah Hardware Company, a corporation organized, and as a part of the consideration for year, “beginning November 1st. 1922, and

The retransferring and conveying the stock of goods, extending to November 1st, 1923. as aforesaid, the firm of Brittian & Henry newal to be in strict accordance with the agreed and promised to transfer and assign terms of the contract referred to above."

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