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.)

(Supreme Court of Mississippi, Division A. June 2, 1924.)

take up the bill of lading. After vainly endeavoring to induce the appellant to comply with the contract, the appellee directed the carrier to return the goods to it at Cincinnati, where, shortly after they were received

(Syllabus by the Court.) 1. Sales 334-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 obtainable therefor, which according to the evidence was the current market price at that place. This suit was then instituted by the appellee to recover the freight charges paid by it to the carrier for transporting the goods to and from Meridian, and for the difference between the contract price therefor and the amount for which the goods were resold by the appellee.

On the refusal of the purchaser to receive goods purchased, if the vendor desires to resell the goods for the purchaser's account he is entitled to exercise some discretion in selecting the place therefor, having regard for the character of the goods and the times, circumstances, and places that regulate and control their price; but under ordinary conditions, where the goods are at the place of delivery at the time the purchaser refuses to receive them, the vendor should resell them at that place. The appellee sought, but was not permitted 2. Sales339- 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 great

The appellant's complaint is that the goods were sold without notice to it of the appellee's intention so to do and at a place other than that of delivery.

In 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 purchaser refused to receive and which were resold by the vendor at a place other than that of delivery, evidence offered by the purchaser of the existence of a market for such goods at the place of delivery is admissible for the purpose of showing that they could and should have been resold at that place.

Appeal from Circuit Court, Lauderdale County; C. C. Miller, Judge.

Suit by the Cincinnati Bargain House against J. Lischkoff, Inc. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

J. H. Currie, of Meridian, for appellant.
S. M. Graham, of Meridian, for appellee.

[1] It will not be necessary for us to determine whether the appellee should have given the appellant notice of its intention to resell the goods for the reason that the resale thereof, for aught that appears in the record, should have been made at Meridian. There is no hard and fast rule with respect to the place at which goods refused by a purchaser should be resold by the seller in the event he desires to do so. The seller is entitled to the exercise of some discretion in selecting the place, having regard "for the character of the goods and the times, circumstances and places that regulate and control their price." 2 Mechem on Sales, § 1638; Bonds v. Lipton Co., 85 Miss. 209, 37 South. 805.

"Under ordinary conditions, however, where time the purchaser refuses to receive them, the goods are at the place of delivery at the the vendor is entitled to and should resell them on the former's account at that place."

SMITH, C. J. The appellee, a corporation engaged in the wholesale mercantile business in Cincinnati, Ohio, sold to the appellant, a corporation engaged in the retail mercantile business in Meridian, Miss., a bill of goods for which the appellant agreed to pay the sum of $591.40. The appellant gave to the 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 Meridian consigned to its own order with a notation on the bill of lading to notify the appellant, and attached the bill of lading to a check on the appellant for the balance due on the goods, and forwarded it to a Meridian bank for collection. The bank on which the $50 check was drawn declined to pay it, and it was returned to the appellee. The appel

[2] The evidence not only fails to disclose any reason for the resale of the goods at a place other than Meridian, but the evidence offered by the appellant as to the market therefor at Meridian, which the court below erroneously excluded, would, if true, have negatived any reason for reselling the goods elsewhere.

Reversed and remanded.

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

(100 So.)

FLURRY v. JACKSON COUNTY.
(No. 24184.)

(Supreme Court of Mississippi, Division A.
June 2, 1924.)

(Syllabus by the Court.)

Counties 74(1)—Employment of county bridge commissioner for one year fixing monthly compensation vold.

Under section 5, c. 276, Laws of 1920, an order of the board of supervisors employing a county bridge commissioner for a year and fixing his compensation at $125 per month is void because the statute does not authorize compensation except for each day of actual service rendered in the discharge of duties, not exceeding $5 per day.

Appeal from Circuit Court, Jackson County; D. M. Graham, Judge.

Suit by J. L. Flurry against Jackson County. From a judgment sustaining a demurrer and dismissing the suit, plaintiff ap

peals. Affirmed.

L. W. Maples, of Gulf Port, for appellant. Denny & Heidelberg, of Pascagoula, for appellee.

HOLDEN, J. This is an appeal from a judgment of the circuit court sustaining a demurrer and dismissing the suit of the appellant Flurry wherein he claimed that the appellee Jackson county was indebted to him in the sum of $875 as a balance of salary due him as bridge commissioner for the county for the year 1922.

The board of supervisors, acting under section 5 of chapter 276, Laws of 1920, employed the appellant Flurry as bridge commissioner for the county at a salary of $125 per month for and during the year 1922. After Flurry had served several months as bridge commissioner he was discharged by the board on the ground that he was related Ito a member of the board within the third degree as provided in chapter 278, Laws of 1922, whereupon he demanded and sued for the balance due him for the remaining months of 1922.

Section 5 of chapter 276, Laws of 1920, provides as follows:

"The board of supervisors are hereby authorized, in their discretion, if they consider it necessary and to the general interest of the county or district, to employ a competent person to serve as road commissioner, whose compensation shall not exceed $5.00 per day for each day served in the actual discharge of his duties, as defined by the board of supervisors of each county. Labor for said roads to be employed by the board of supervisors, in case there be a commissioner, to be employed by

January, 1922, appointed appellant Flurry as bridge commissioner by the following order spread upon its minutes, to wit:

"Ordered by the board that J. L. Flurry be and is hereby appointed bridge commissioner for Jackson county for the year 1922, in accordance with the former orders of this board relative to the duties of such commissioners, and that his salary as such commissioner be fixed at $125.00 per month until the further orders of this board relative thereto. It is further ordered by the board that he be required to furnish bond as such commissioner in the sum of $1,000.00, as provided by law, same to be approved by this board."

There are several grounds of demurrer, but we shall notice only one, which we think was good and justified the action of the lower court in dismissing the suit, and that is, the order of the board appointing appellant bridge commissioner was void, and the board had the right to dispense with his services at any time, because the order provides that $125 per month until the further orders of "his salary as such commissioner be fixed at

this board relative thereto."

We think the order is invalid because it is contrary to the statute with reference to the compensation to be allowed the commissioner for his services. The only authority giv en the board to employ a bridge commissioner is derived from this statute, which provides the board is authorized "to employ a competent person to serve as road commissioner, whose compensation shall not exceed $5 per day for each day served in the actual discharge of his duties." The order of the board fixing the compensation at $125 per month without reference to daily compensation for "each day served in the actual discharge of his duties" is contrary to the provision fixing the compensation. The compensation is per diem, not by the month, and the requirements of the statute must be followed.

We are not called upon to decide whether or not the employment could have been by the year if the compensation had been fixed at a sum not in excess of $5 per day for each day served in the actual discharge of his duties; nor is it necessary to decide whether the employment could be by the month where compensation is fixed by the day for the actual services rendered for each day, because the order makes no such provision, but simply provides for compensation at $125 per month, regardless of the number of days of actual service rendered or the fixed amount to be paid for each day's work.

Whether the nepotism law is applicable in the case we do not decide, because a consideration of this point might involve the constitutional question of the impairment of 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

him."

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

The judgment of the lower court sustaining the demurrer and dismissing the suit is affirmed.

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 (section 1389, Hemingway's Code), governing the descent of exempt property, a greatgrandchild who has survived its parents and grand-parents will inherit from a greatgrandparent. That statute is in this language:

Affirmed.

JENKINS et al. v. HARRIS et al.
(No. 24199.)

"The property, real and personal, exempted by law from sale under execution or attachment, 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.)

(Syllabus by the Court.)

Descent and distribution 26-Statute as to descent of exempt property construed as to right of great-grandchildren.

them, and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent's share, and if there be no children or grandchildren of the decedent, to the surviving wife or husband, and if there be no such survivor to the children and grandchildren of the deceased owner; but where the surviving husband or wife shall own a place of residence equal in value to the homestead of the decedent, and the deceased husband or wife have not surviving children or grandchildren of the last marriage, but have children or grandchildren of a former marriage, the homestead of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage as other property."

Section 1657, Code of 1906 (section 1389, Hemingway's Code), provides: "The property, real and personal, exempted by law from sale under execution or attachment, shall, on the death of the husband or wife owning it, descend to the survivor of them, and the children and grandchildren of the decedent, as tenants in common, grandchildren inheriting their deceased parent's share, and if there be no children or grandchildren of the decedent, to the surviving wife or husband, and if there be no such survivor to the children and grandchildren of the deceased owner; but where the survivPrior 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 of such decedent shall not descend to the surviving husband or wife, but shall descend to the surviving children and grandchildren of the decedent by such former marriage as other property:" Held, great-grandchildren whose parents and grandparents are dead do not inherit from a great-grandparent under said statute.

their deceased parent. The case of Peeler v. Peeler, 68 Miss. 141, 8 South. 392, which arose before said amendment, involved the question of the right of grandchildren to inherit. It was held that the term "children" did not include grandchildren, and that therefore the grandchild was not entitled 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. Subse

cellor.

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 children under the statute above before its the term "children" did not include grandnot include great-grandchildren under the amendment, the term "grandchildren" does

Woods & Kuykendall, of Charleston, for appellants.

J. A. Blount, of Charleston, for appellees.

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.

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

(100 So.)

INGRAM DAY LUMBER CO. v. GERMAIN
CO. (No. 23921.)

(Supreme Court of Mississippi, Division B.
March 10, 1924. Suggestion of Error
Overruled June 16, 1924.)

Sales

(Syllabus by the Court.)

71(5), 81(3)-Manufacturer of railroad ties receiving order may deliver maximum or minimum number; term "as soon as possible" affecting delivery held to be reasonble time.

Where a corporation engaged in buying railroad cross-ties gives an order for ties-from 6,000 to 10,000-deliverable "as soon as possible" to a manufacturer of such ties, the manufacturer, being the first party called upon to perform, has the option to furnish the full number or the minimum number. The words "as soon as possible" mean within a reasonable time according to all the circumstances, and, where the buyer is in default in inspecting the ties and asks for indulgence after the expiration of 90 days from the date of contract, it cannot insist thereafter that 90 days was the limit for completing the contract, and a decree so finding under the circumstances stated in the opinion will be reversed.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, As Soon as Possible.]

Appeal from Chancery Court, Harrison County; V. A. Griffith, Chancellor.

Suit by the Ingram Day Lumber Company against the Germain Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

"Payment net cash as soon as car is loaded and B/L received.

"Delivery as cars are placed, to be shipped complete as soon as possible.

"Buyer agrees to use every effort to get cars

either from A. T. & N. or having cars billed down

from Northern roads to move above ties, but does not guarantee placement of cars.

"[Signed] The Germain Company, "By J. Hamilton Smith. "Mail original bill of lading and invoice to Pittsburgh office.

"Send copy of invoice to Mobile office."

Accompanying this order was a letter in which it was stated:

"As agreed upon with you we will have the positively guarantee this as explained to you, cars billed to you if possible, but don't want to for the reason that while we are now having a bunch of cars billed to A. T. & N., it has 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.

T. C. Hannah, of Hattiesburg, for appellee.

ETHRIDGE, J. The appellant sued the appellee in the chancery court of Harrison county for $3,249.70, for railroad cross-ties manufactured by the appellant for the appellee under a contract made by correspondence on the 17th day of October, 1920. The appellee sent the appellant the following order:

The Germain Company. "Home Office: Pittsburgh, Penn'a.

"Mobile, Ala., Oct. 17, 1920. "Ingram Day Lumber Co., Yarbo, Ala.

Ship to: The Germain Company
Pennsylvania R. R. Co.
At Destination to be nam-

Our

Order No.
Telegraph
Code

County
Rate. L.

State
Frt.

"Show the Germain Co. on Bill Lading as shippers. "Route via

at destination.

To make

R. R. delivery

"Bill of lading must show full routing. Note.

will always be very glad to send the cars as is in the hands of the Car Commission of the they are doing now, but that the entire matter I. C. C. and there is no telling when they will stop them, and the matter being out of their hands, they cannot guarantee it, but the probabilities are that they will continue to allow us to send the cars."

This letter was sent to the Yarbo, Ala., office of the appellant and handled by Mr. Byrne, superintendent of the Yarbo Mill of appellant. Mr. Byrne wrote the main office the following memorandum:

"This is in line with agreement, but have them eliminate shipment complete by December 31st. It would be impossible for us to complete contract by that time."

On October 28, 1920, appellant wrote as follows:

"We are just in receipt of copies of order, recently placed by you with our Mr. Byrne at Yarbo, Ala., for 6 to 10,000 Hewn Y. P. heart ties.

"We note wherein you advise shipment complete by December 31, 1920. Mr. Byrne advises that it will be impossible to complete this shipment by that time.

Order No., Car No., and initials and destination on invoice. Send bill lading, giving weight and freight For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes