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lant also declined to pay the check drawn J. LISCHKOFF, Inc., V. CINCINNATI BAR- on it for the balance due on the goods and to GAIN HOUSE. (No. 24041.)

take up the bill of lading. After vainly en

deavoring to induce the appellant to comply (Supreme Court of Mississippi, Division A. June 2, 1924.)

with the contract, the appellee directed the

carrier to return the goods to it at Cincin(Syllabus by the Court.)

nati, where, shortly after they were received 1. Sales Ow334-Rule as to place for resale by the appellee, they were sold by it without of refused goods, stated.

notice to the appellant at the best price obOn the refusal of the purchaser to receive tainable therefor, which according to the evigoods purchased, if the vendor desires to resell dence was the current market price at that the goods for the purchaser's account he is place. This suit was then instituted by the entitled to exercise some discretion in selecting appellee to recover the freight charges paid the place therefor, having regard for the char- by it to the carrier for transporting the acter of the goods and the times, circumstances, and places that regulate and control their goods to and from Meridian, and for the price; but under ordinary conditions, where the difference between the contract price theregoods are at the place of delivery at the time for and the amount for which the goods were the purchaser refuses to receive them, the ven- resold by the appellee. dor should resell them at that place.

The appellee sought, but was not permitted 2. Sales em339 — Evidence of market for re- by the court below, to prove that there was

fused goods at place of delivery admissible in a market for goods of the character of these suit for difference between contract and re here in question at Meridian, and that the sale price.

market value thereof at Meridian was greatIn a suit wherein a vendor is seeking to re- er than the price at which they were resold cover from a purchaser the difference between in Cincinnati by the appellee. the contract and resale price of goods which The appellant's complaint is that the goods the purchaser refused to receive and which were sold without notice to it of the appelwere resold by the vendor at a place other lee's intention so to do and at a place other than that of delivery, evidence offered by the than that of delivery. purchaser of the existence of a market for such

[1] It will not be necessary for us to degoods at the place of delivery is admissible for the purpose of showing that they could and termine whether the appellee should have should have been resold at that place.

given the appellant notice of its intention to resell the goods for the reason that the resale

thereof, for aught that appears in the recApneal from Circuit Court, Lauderdale

ord, should have been made at Meridian. County; C. C. Miller, Judge.

There is no hard and fast rule with respect Suit by the Cincinnati Bargain House to the place at which goods refused by a puragainst J. Lischkoff, Inc. From a judgment chaser should be resold by the seller in the for plaintiff, defendant appeals. Reversed event he desires to do so. The seller is en-' and remanded.

titled to the exercise of some discretion in J H. Currie, of Meridian, for appellant.

selecting the place, having regard "for the S. M. Graham, of Meridian, for appellee.

character of the goods and the times, cir. cumstances and places that regulate and con

trol their price." 2 Mechem on Sales, $ 1638; SMITH, C. J. The appellee, a corporation Bonds v. Lipton Co., 85 Miss. 209, 37 South. engaged in the wholesale mercantile business 805. in Cincinnati, Ohio, sold to the appellant, a corporation engaged in the retail mercantile

"Under ordinary conditions, however, where business in Meridian, Miss., a bill of goods time the purchaser refuses to receive them,

the goods are at the place of delivery at the for which the appellant agreed to pay the the vendor is entitled to and should resell them sum of $591.40. The appellant gave to the on the former's account at that place.” appellee its check for $50 on a bank in Meridian in part payment for the goods and See note to White Walnut Coal Co. v. agreed to pay the balance due thereon when Crescent Coal & M. Co., 42 L. R. A. (N. S.) the goods should be delivered to it at Merid- 685, 686, and authorities there cited. ian. The appellee shipped the goods to [2] The evidence not only fails to disclose Meridian consigned to its own order with a any reason for the resale of the goods at a notation on the bill of lading to notify the place other than Meridian, but the evidence appellant, and attached the bill of lading to offered by the appellant as to the market a check on the appellant for the balance due therefor at Meridian, which the court below on the goods, and forwarded it to a Meridian erroneously excluded, would, if true, have bank for collection. The bank on which the negatived any reason for reselling the goods $50 check was drawn declined to pay it, and elsewhere. it was returned to the appellee. The appel- Reversed and remanded.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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(100 So.)

January, 1922, appointed appellant Flurry as FLURRY V. JACKSON COUNTY.

bridge commissioner by the following order (No. 24184.)

spread upon its minutes, to wit: (Supreme Court of Mississippi, Division A. "Ordered by the board that J. L. Flurry be June 2, 1924.)

and is hereby appointed bridge commissioner

for Jackson county for the year 1922, in ac(Syllabus by the Court.)

cordance with the former orders of this board Counties P 74(1)-Employment of county relative to the duties of such commissioners, bridge commissioner for one year fixing and that his salary as such commissioner be monthly compensation void.

fixed at $125.00 per month until the further Under section 5, c. 276, LAW8 of 1920, an

orders of this board relative thereto. It is order of the board of supervisors employing a

further ordered by the board that he be recounty bridge commissioner for a year and fix- quired to furnish bond as such commissioner ing his compensation at $125 per month is in the sum of $1,000.00, as provided by law, void because the statute does not authorize same to be approved by this board.” compensation except for each day of actual

There are several grounds of demurrer, service rendered in the discharge of duties, not but we shall notice only one, which we think exceeding $5 per day.

was good and justified the action of the low

er court in dismissing the suit, and that is, Appeal from Circuit Court, Jackson Coun- the order of the board appointing appellant ty; D. M. Graham, Judge.

bridge commissioner was void, and the board Suit by J. L. Flurry against Jackson had the right to dispense with his services County. From a judgment sustaining a de- at any time, because the order provides that murrer and dismissing the suit, plaintiff ap- $125 per month until the further orders of

"his salary as such commissioner be fixed at peals. Affirmed.

this board relative thereto." L. W. Maples, of Gulf Port, for appellant. We think the order is invalid because it is Denny & Heidelberg, of Pascagoula, for contrary to the statute with reference to the appellee.

compensation to be allowed the commission

er for his services. The only authority give HOLDEN, J. This is an appeal from a

en the board to employ a bridge commissionjudgment of the circuit court sustaining a

er is derived from this statute, which prodemurrer and dismissing the suit of the ap- vides the board is authorized "to employ a pellant Flurry wherein he claimed that the competent person to serve as road commis. appellee Jackson county was indebted to him sioner, whose compensation shall not exceed in the sum of $875 as a balance of salary $5 per day for each day served in the acdue him as bridge commissioner for the tual discharge of his duties.” The order of county for the year 1922.

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the board fixing the compensation at $125 The board of supervisors, acting under per month without reference to daily comSection 5 of chapter 276, Laws of 1920, em- pensation for "each day served in the actual ployed the appellant Flurry as bridge com- discharge of his duties” is contrary to the missioner for the county at a salary of $125 provision fixing the compensation. The comper month for and during the year 1922. pensation is per diem, not by the month, and After Flurry had served several months as

the requirements of the statute must be fol. bridge commissioner he was discharged by

lowed. the board on the ground that he was related

We are not called upon to decide whether to a member of the board within the third or not the employment could have been by degree as provided in chapter 278, Laws of the year if the compensation had been fixed 1922, whereupon he demanded and sued for at a sum not in excess of $5 per day for the balance due him for the remaining each day served in the actual discharge of

his duties; nor is it necessary to decide Section 5 of chapter 276, Laws of 1920, whether the employment could be by the provides as follows:

month where compensation is fixed by the

day for the actual services rendered for each "The board of supervisors are hereby au- day, because the order makes no such provithorized, in their discretion, if they consider it necessary and to the general interest of the sion, but simply provides for compensation county or district, to employ a competent per

at $125 per month, regardless of the number son to serve as road commissioner, whose com- of days of actual service rendered or the pensation shall not exceed $5.00 per day for fixed amount to be paid for each day's work. each day served in the actual discharge of his Whether the nepotism law is applicable in duties, as defined by the board of supervisors the case we do not decide, because a considof each county. Labor for said roads to be eration of this point might involve the conemployed by the board of supervisors, in case stitutional question of the impairment of there be a commissioner, to be employed by contract, since the contract by the board

with a relative in January, 1922, was a valActing under this statute the board in id contract' at that time because the nepo

Aww For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

then

months of 1922.

$

him."

tism act did not become operative until aft-, cient to say that the only question involved erwards.

is whether under section 1657, Code of 1906 The judgment of the lower court sustain (section 1389, Hemingway's Code), governing ing the demurrer and dismissing the suit is the descent of exempt property, a greataffirmed.

grandchild who has survived its parents and Affirmed.

grand-parents will inherit from a greatgrandparent. That statute is in this lan

guage: JENKINS et al. v, HARRIS et al.

"The property, real and personal, exempted (No. 24199.)

by law from sale under execution or attach

ment, shall, on the death of the husband or (Supreme Court of Mississippi, Division A. wife owning it, descend to the survivor of June 2, 1924.)

them, and the children and grandchildren of

the decedent, as tenants in common, grandchil(Syllabus by the Court.)

dren inheriting their deceased parent's share, Descent and distribution am 26—Statute as to the decedent, to the surviving wife or husband,

and if there be no children or grandchildren of descent of exempt property construed as to and if there be no such survivor to the children right of great-grandchildren.

and grandchildren of the deceased owner; but Section 1657, Code of 1906 (section 1389, where the surviving husband or wife shall own Hemingway's Code), provides: "The property, a place of residence equal in value to the homereal and personal, exempted by law from sale stead of the decedent, and the deceased husunder execution or attachment, shall, on the band or wife have not surviving children or death of the husband or wife owning it, descend grandchildren of the last marriage, but have to the survivor of them, and the children and children or grandchildren of a former margrandchildren of the decedent, as tenants in riage, the homestead of such decedent shall not common, grandchildren inheriting their de- descend to the surviving husband or wife, but ceased parent's share, and if there be no chil- shall descend to the surviving children and dren or grandchildren of the decedent, to the grandchildren of the decedent by such former surviving wife or husband, and if there be no marriage as other property." such survivor to the children and grandchildren of the deceased owner; but where the surviv- Prior to the amendment of said statute ing husband or wife shall own a place of resi- embodied in chapter 89, Laws of 1900, it did dence equal in value to the homestead of the not contain the word "grandchildren.” The decedent, and the deceased husband or wife have not surviving children or grandchildren of amendment consisted alone in providing that the last marriage, but have children or grand-grandchildren should inherit the share of children of a former marriage, the homestead their deceased parent. The case of Peeler v. of such decedent shall not descend to the sur- Peeler, 68 Miss. 141, 8 South. 392, which viving husband or wife, but shall descend to the arose before said amendment, involved the surviving children and grandchildren of the de- question of the right of grandchildren to incedent by such former marriage as other prop-herit. It was held that the term "children" erty." Held, great-grandchildren whose par: | did not include grandchildren, and that ents and grandparents are dead do not inherit therefore the grandchild was not entitled from a great-grandparent under said statute.

to inherit. The reasons for this holding of

the court are ably and lucidly set out in the Appeal from Chancery Court, Tallahatchie opinion in that case. It is therefore unnecCounty, First District; C. L. Lomax, Chan-essary to repeat those reasons here. Subsecellor.

quent to that decision the Legislature adoptSuit by Mary Fannie Jenkins and others ed chapter 89, Laws of 1900, which contains against George Harris and another. From the amendment referred to above. The Lega decree dismissing the bill, plaintiffs ap- islature saw fit to leave out great-grandchilpeal. Affirmed.

dren. For exactly the same reasons that Woods & Kuykendall, of Charleston, for children under the statute above before its

the term "children" did not include grandappellants.

amendment, the term "grandchildren" does J. A. Blount, of Charleston, for appellees.

not include great-grandchildren under the

statute as it now stands, "Grandchildren" ANDERSON, J. This is an appeal from means the children of children, and “greatthe chancery court of Tallahatchie county grandchildren” means children of grandchilfrom a final decree dismissing appellants' dren. For a further discussion of the meanbill. The cause was tried on bill, answer, ing of the terms "children,” “grandchildren," and agreed facts. Harris owned property and "great-grandchildren," see Thomas v. exempt from his debts. He died leaving a Thomas, 97 Miss. 697, 53 South. 630. This widow, one child, and a great-grandchild; is in accordance with the view held by the the parents and grandparents of the latter court below. having previously died. It is deemed suffi- Affirmed.

fin. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 So.)

rate, with invoice to Pittsburgh, Pa. Make all INGRAM DAY LUMBER CO. V. GERMAIN drafts on Pittsburgh office. 'All contracts and or. Co. (No. 23921.)

ders subject to acceptance and confirmation of

Pittsburgh office.'
(Supreme Court of Mississippi, Division B. Time of shipment is the essence of this order. NO
March 10, 1924. Suggestion of Error pieces to be shipped in multiples unless so ordered.
Overruled June 16, 1924.)

This order must be filled exact.

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(Syllabus by the Court.)
Sales 71(5), 81(3)-Manufacturer of rail. Item. Amount.

Size. Length.
road ties receiving order may deliver maxi-
mum or minimum number; term "as soon as
possible" affecting delivery held to be reason- 6,000 to 10,000 hewn YP heart ties, standard qual-
ble time.

ity by U, S. R. A. Specifications, to run about
Where a corporation engaged in buying rail. Prices and sizes as follows:

75% or more #5 and #4. Balance #3 and #2 ties.
road cross-ties gives an order for ties--from 6, 7x9x8' f'' $1.40 f.o.b. cars A. T. & N. R. R. stations
000 to 10,000–deliverable "as soon as possible" |7x8x8' 6" 1.30
to a manufacturer of such ties, the manufac- | 6x8x8' 6" 1.20

1.00
turer, being the first party called upon to per- | 6x7x8' 6"

Inspection at loading point by railway inspector.
form, bas the option to furnish the full number
or the minimum number. The words “as soon

"Payment net cash as soon as car is loaded and
as possible" mean within a reasonable time ac-

B/L received.
cording to all the circumstances, and, where "Delivery as cars are placed, to be shipped com-
the buyer is in default in inspecting the ties plete as soon as possible.
and asks for indulgence after the expiration of

Buyer agrees to use every effort to get cars
90 days from the date of contract, it cannot either from A. T. & N. or having cars billed down

from Northern roads to move above ties, but does
insist thereafter that 90 days was the limit not guarantee placement of cars.
for completing the contract, and a decree so

"[Signed] The Germain Company,
finding under the circumstances stated in the

“By J. Hamilton Smith, opinion will be reversed.

Mail original bill of lading and invoice to Pitts-
(Ed. Note.-For other definitions, see Words burgh office.

"Send copy of invoice to Mobile office."
and Phrases, First and Second Series, As Soon
as Possible.]

accompanying this order was a letter in

which it was stated:
Appeal from Chancery Court, Harrison
County; V. A. Griffith, Chancellor.

"As agreed upon with you we will have the

cars billed to you if possible, but don't want to Suit by the Ingram Day Lumber Company positively guarantee this as explained to you, against the Germain Company. From a

for the reason that while we are now having a judgment for plaintiff, defendant appeals. bunch of cars billed to A. T. & N., it has Rerersed and remanded.

been only a short time since they would not let Tally & Mayson, of Hattiesburg, and White us do this. The Pennsylvania people say they & Ford, of Gulfport, for appellant.

will always be very glad to send the cars as

they are doing now, but that the entire matter
T.C. Hannah, of Hattiesburg, for appellee. is in the hands of the Car Commission of the

I. C. C. and there is no' telling when they will
ETHRIDGE, J. The appellant sued the stop them, and the matter being out of their
appellee in the chancery court of Harrison hands, they cannot guarantee it, but the proba-
county for $3,249.70, for railroad cross-ties bilities are that they will continue to allow us
manufactured by the appellant for the ap to send the cars.”
pellee under a contract made by correspond-
ence on the 17th day of October, 1920. The This letter was sent to the Yarbo, Ala.,
appellee sent the appellant the following or- office of the appellant and handled by Mr.
der:

Byrne, superintendent of the Yarbo Mill of
The Germain Company.

appellant. Mr. Byrne wrote the main office
"Home Office: Pittsburgh, Penn'a.

the following memorandum: "Mobile, Ala., Oct. 17, 1920.

“This is in line with agreement, but have
"Ingram Day Lumber Co., Yarbo, Ala.

them eliminate shipment complete by Decem-
Our
Ship to: The Germain Company

ber 31st. It would be impossible for us to
Pennsylvania R. R. Co.

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At Destination to be nam- complete contract by that time."
Care

Stato
Code

County

On October 28, 1920, appellant wrote as Rate. L.

follows: "Show the Germain Co. on Bill Lading as shippers. "We are just in receipt of copies of order, reTo make - R. R. delivery cently placed by you with our Mr. Byrne at Yar

bo, Ala., for (i to 10,000 Hewn Y. P. heart ties.

"We note wherein you advise shipment com"Bill of lading must sbow full routing. Note.-plete by December 31, 1920.

Mr. Byrne adOrder No., Car No., and initials and destination on

vises that it will be impossible to complete this invoice

. Send bill lading, giving weight and freight / shipment by that time.
AmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Order No.
Telegraph

ed later at

Frt,

5

"Route via
at destination.

cars

are

“If it is agreeable to you to eliminate that , spector, but that you are rather doubtful of clause of the contract would be pleased to han- being able to get the Pennsylvania Railroad indle same accordingly.

spector to take the ties up very soon. “We have had a call in for Mr. Smith to-day, “We have pointed out to you that our conbut was advised he was out of town, and would tract is with the Germain Company and this not be back before Saturday.

will serve as formal notice that the ties are “We would thank you to have him 'phone us ready and we are anxious to begin loading imimmediately upon his return regarding the mediately and that we will look to you to give points mentioned and we would then forward the matter your immediate attention. you confirming order covering this business." "In the event that you do not desire to move On November 4, 1920, appellant wrote ap your man and have same checked up and send

these ties right away, we suggest that you send pellee as follows:

us settlement for same." "Confirming phone conversation with your Mr. Stewart of yesterday, we are inclosing you

Nothing was done by the appellee, and on herewith our_confirming order covering 6 to the 15th of February, 1921, the appellant 10,000 hewn YP heart ties.

wrote the appellee as follows: "You will note that we have changed the date of delivery to be completed December 31, 1920, over the long-distance telephone and advised

"Our Yarbo, Alabama, office just called us as early as possible per agreement over phone that your tie inspector left there Saturday and with you yesterday.

has failed as yet to return. "As you state that you have had the matter

“We have just wired you as per the confirmaup with your Mr. Smith a few days ago, and tion inclosed requesting that you rush an inthat he advised you that this would be satis- spector to Yarbo to take up the balance of the factory. We wish to thank you for this busi- ties to apply against your order. We trust ness."

that you will give the matter your immediate On November 3, 1920, the appellee wrote attention." appellant agreeing to eliminate the clause

On February 16, 1921, the appellee replied about January 1st delivery. This letter was received after appellant had mailed the con- Ala., to take up balance of ties, writing as

to a telegram to rush an inspector to Yarbo, firmation making delivery "as

follows: placed; as soon as possible.” On November 5, 1920, appellant acknowledged receipt of "Your wire 15th reading as follows: 'Rush the letter of November 3, 1920, and called at- inspector Yarbo, Alabama, to take up balance tention to the fact that the confirmation had

ties.' been sent. The confirmation was sent to the Railroad have wired that they will positively

"We regret to advise that the Pennsylvania Pittsburgh office instead of the Mobile office not accept any more ties, subject to inspection of the appellee. The confirmation was re- at destination, but will furnish inspector 'as ceived by the appellee and no objection was early as possible.' made thereto. The appellant manufactured "Just as soon as we can secure an available a portion of the ties for this order, and in Penna. inspector we will arrange to have him December, 1920, the appellee having obtained at Yarbo to take up the remaining 2,000 ties no cars and having sent no inspector, and ap- due on this order. In the meantime we ask pellant having ties ready for shipment, ob- that you kindly bear with us until we can setained five cars for loading the ties and noti- sure inspector from the Penna. Railroad which fied the appellee to send an inspector; but we trust will not be long." the appellee did not do so, and the cars had On February 18, 1921, the appellant wrote to be released back to the railroad. Appellee the appellee as follows: failed to take any steps towards taking up the ties, and on February 2, 1921, the ap- acknowledging the receipt of our telegram in

"We are in receipt of your letter of the 17th pellant wrote the appellee that the ties were which we requested you to rush your inspector ready and to please send the inspector to to Yarbo, Ala., to take up the balance of the take them up, saying in the letter:

railroad ties. "Referring to your contract of October 17th "We observe that you state that the Pennsyl. with our Yarbo, Alabama, Mill for six to ten vania Railroad Company will furnish the inthousand hewn yellow pine heart ties standard, spector as early as possible. We do not quite for shipment to the Pennsylvania Railroad understand what you mean in stating that they Company; now understand from phone positively will not accept any more ties subject conversation between your Mr. Smith and the to inspection at destination, as for your inwriter that you are having trouble in getting formation we do not ship subject to inspection the Pennsylvania Railroad Company to send at destination. their inspector to take up these ties. As ex

"We assume that you now have the inspector plained to you, our Mr. Byrne informs us that at Yarbo and that you will arrange to have him he has the ties ready and that it is necessary complete the order while there." that same be loaded without further delay. We

On February 22, 1921, the appellee wrote must, therefore, insist that you arrange to be

to appellant as follows: gin loading these ties at the earliest possible moment.

Replying to your letter 18th inst. with ref. "We understand that you will again commu- erence to the remaining ties at Yarbo. nicate with the Pennsylvania Railroad Com- "What we meant by destination inspection is pany by wire urging that they send their in- | this: Shipping ties that are not inspected at

we

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