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sister-in-law, Mrs. Mitchell, who formerly had the child in her possession, and secured possession of the child, and took it to her home in Picayune; and, subsequently learning of the order of the court committing said child to the Industrial Training School, filed a petition with the circuit court, praying that said order be set aside and revoked or modified to the extent that said child should not be committed to the said school, and a vacation order made and she be not committed until the application of the mother could be heard. The judge thereupon signed an order reciting that all parties were not ready for the reinvestigation of said cause and the trial of same; that said girl was being properly cared for; and that the hearing of the matter was postponed until some day during the November term of the circuit court, the particular date of the hearing to be fixed by the court after it was assembled on the first Monday in November; that all parties interested in said matter acknowledged notice of said hearing, and agreed to be present and present their respective contentions.

At the November term of the court the court heard the evidence on behalf of all the parties, and refused to vacate the original order made in April by him, and ordered the

child committed to the said institution.

It appeared upon the hearing on the part of Mrs. M. J. Holden that she married her present husband in the year 1920; that for more than two years prior to the hearing they had been living in the town of Picayune, and that the said child attended the public schools at that place, and had never been convicted of violating any municipal or state law; and that said child was a good, obedient child, and was being properly cared for by Mr. and Mrs. Holden. The superintendent of the said school testified that she had never violated any of the school regulations, and was an average child; that he saw no evidence of maltreatment or evil character. The town marshal testified that the child had never violated any law, had never been convicted of violating any law, or charged with violating the law, and that Mr. and Mrs. Holden were apparently kind and considerate of the child, and enjoyed the reputation for peace and order and industry, and that he had never seen any evi

dence of maltreatment of the child. The Holdens' family physician testified to like effect.

It was shown that Mr. Holden lived in his own home, and was earning upwards of $125 per month, and had only his wife, the child in question, and a child of his own to care for.

He testified that he desired the child to live with them, and had treated and would treat it as though it were his own child. The petitioner's testimony, or the testimony of

failed to disclose any act of moral turpitude, or any of delinquency on the part of the child, or that it had ever violated any law of the state or municipality.

Monroe Smith, father of the child and former husband of the appellant, testified that, after his return from the army, he found his wife and Holden living in adulterous relations on a certain plantation in the county, and that his wife proposed that, if he would give her a divorce, she would let him take the child, Susan, which he did, and placed it with his sister, as above stated. It is further shown that in August, 1919, the appellant obtained a divorce from Monroe Smith, and married M. J. Holden, in January, 1920; that since this marriage there is no charge or act proven showing any immoral act or delinquency on the part of the appellant. On the contrary, the proof shows that she is living a proper life with her present

husband.

Treating the case as being pending before the court properly at the November term, and conceding for the purpose of this opinion that the court had the right to hear the original petition, and that all parties were before him so as to give him full and complete jurisdiction, we still think the proof fails to make out a case warranting the order of commitment. The original act (Laws of 1916, chapter 111), creating the Industrial Training School, and providing for admission of children therein, provided for in section 4969 of Hemingway's Code (section 6, chapter 111, Laws of 1916), that

"Any child less than eighteen years of age, residing or being at the time in the state of Mississippi.

"(a) Who violates any municipal ordinances or state laws, when the violation involves for the purposes of tuis act, shall be known as a delinquent child.

"(b) Who is destitute or homeless, or abandoned or is in such an evil and immoral environment that such child is likely to develop into criminal practices unless removed therefrom and properly directed and trained, or whose environment seems to point to a criminal career, shall for the purposes of this act be known as a destitute or abandoned child."

Section 6, chapter 111, Laws of 1916 (section 4969, Hemingway's Code), was amended April 4, 1922, Laws of 1922, chapter 195, so

as to provide as follows:

"What Children to be Admitted to the School. -Section 6. Any child less than eighteen years of age, and not less than seven years of age residing or being at the time in the state of Mississippi may be admitted to said institution, in the future, on the following conditions, and no other:

"(a) Where such child has violated any municipal ordinance or state law, when the violation thereof involved moral turpitude.

shall certify in writing that such child is either "(b) When a circuit judge or a chancellor immoral, delinquent, or incorrigible in the opin

(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 of 1916 [section 4971, Hemingway's Code]), provides for the filing of a petition, and"upon the filing of such petition, if it shall appear that either parent or guardian of said child resides in this state, the clerk shall issue a summons to such parent or guardian directing him to appear and produce such child at the hearing of said petition, at the time and place 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 act, and such summons shall be served not less than five days before the date set for the hearing, unless service be waived."

Section 24 of chapter 111, Laws of 1916 (section 4987, Hemingway's Code), provides for an appeal

"from the order of any court, judge or chancellor committing any child to the State Industrial and Training School or committing any child to the custody of any person."

Of course, for the judge to find and certify in writing that such child is immoral, delinquent, or incorrigible requires evidence, and he cannot on hearing commit the child as incorrigible, delinquent, or immoral, when there is no evidence to support such finding in the record. It is clear that the child is innocent of any wrongdoing, and the law does not warrant a commitment to the institution under the facts disclosed in this record.

The judgment will be reversed, and the petition for commitment of the said child will be dismissed, and the child left with its mother until further order in a proper proceeding in the proper court for the custody of the said child.

Reversed and dismissed.

ALLEN v. GADDIS. (No. 23978.) * (Supreme Court of Mississippi, Division B. May 12, 1924.)

(Syllabus by the Court.)

I. Principal and agent 194(2)—Instruction as to custom and usages held Improper to show agent's authority to draw draft.

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The declaration alleges that before the expiration of the 30 days named, the same was indorsed by W. H. Miles and delivered to the plaintiff for valuable consideration, and it thereupon became the property of the plaintiff and has continued to be since that time and still is the property of the plaintiff. It further alleges that the draft was signed by 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 thereof. When the draft was presented for payment, payment was refused, and afterwards suit was brought thereon.

The plaintiff's testimony is: That about the time the draft is dated, and before the maturity thereof, Miles presented the draft to him, requesting that it be cashed. That the plaintiff thereupon called up the office of appellant in Jackson, Miss., and asked Where a person is engaged in business unfor 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

*Suggestion of error overruled June 9, 1924.

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

"We have yours of the 23d desiring to know if we could mail you our check now for $600.00, to cover draft given by Mr. J. D. Williams to Mr. W. H. Miles. I am sorry to advise you that we will not take care of this draft. As a matter of fact, this draft was given to Mr. Miles simply through accommodation to him for a few days in order that he might ship us enough lumber to take up the draft when it was due, so in view of the fact as soon as Mr. Miles got this draft he simply refused to ship us any more lumber, and the draft was given him with the understanding that he was to ship enough lumber to take up the draft when it was, due.

"As to the writer giving out any information from our office that we would take care of any draft given by Mr. Williams, this was an error. We, of course, cash Mr. Williams drafts when they are given to parties to whom we are due, and Mr. Williams immediately notifies this office to this effect sending in credit memorandum. In this instance the writer knew nothing of this draft being given, as it was a little personal arrangement between Mr. Miles and Mr. Williams, so we are under no obliga

tions whatsoever to cash this draft and you will have to look to Mr. Miles for the money."

Plaintiff proved by Miles, the payee in this draft, that the draft was given him in payment of lumber delivered to the Mercantile Lumber Company and that he had never been paid otherwise for the lumber and that he did not owe the Mercantile Lumber Company, under which name Allen the appellant was doing business, anything. Miles also testified to the conversation over the phone in support of Gaddis' testimony.

Williams, the drawer of the draft, testified that he was employed by the Mercantile Lumber Company or J. T. Allen, as manager of the operating part of the business of the appellant at Pelahatchie, Miss., and that he also bought lumber on behalf of the appellant. He testified that he had no authority to draw a draft except with the consent of the appellant, but that when he bought lumber he usually gave a sight draft on Allen for the payment thereof, and in such cases that Allen accepted such drafts. He testified, however, that Allen did not accept all drafts drawn on him by said Williams. Williams' testimony with reference to the giving of the draft in the present case is that he gave the draft to enable Miles to load and deliver lumber to the appellant so that he could pay his labor for the loading and hauling and manufacture of the lumber.

the paying department from the Jackson office, and that when Williams bought lumber he generally gave a sight draft and furnished the appellant at the Jackson office a memorandum of the transaction, and in such cases he paid such drafts. He testified that Miles was in debt to him at the time of the transaction and owed him money on a contract which they had before arranged by which the appellant advanced Miles by way of accommodation large sums of money to enable Miles to conduct his business and furnish the appellant lumber.

It was shown by Williams' testimony on' cross-examination that he purchased lumber from some 10 or 12 small mills around-Pelahatchie, Miss., and that he usually paid for this lumber by a draft drawn as in the present case.

The plaintiff's testimony was that he had only bought two drafts, the present one and one prior draft drawn by Williams, and it is also shown that he did not know Allen

personally and could not swear to his voice so as to identify it in the phone conversation, and also testified that he relied upon the phone conversation in the transaction.

There was a verdict for the plaintiff, and the defendant appeals and assigns several of the rulings and instructions for error.

The court instructed for the plaintiff that if the jury believe from a preponderance of the evidence that the defendant got the lumber for which this draft was given and has not returned the same, they shall find for the plaintiff. The jury was also instructed for the plaintiff that it is not material what secret agreement or instructions the defendant gave Williams, if this was not known to the public with whom he was dealing, and if the jury believe from a preponderance of the evidence that the defendant and Williams conducted the business in such way as to lead the public and the plaintiff to reasonably believe that Williams did have authority to issue drafts like this to find for the plaintiff, and that one dealing with an agent of another where the agent is acting about the business of his principal that he had the right to act upon the customary way of the principal's method of allowing his agent to conduct his business, and if the jury believe from a preponderance of the evi

dence that the defendant held out Williams as his agent and authorized him to draw drafts like this one in payment for lumber, to find for the plaintiff regardless of secret understandings between the defendant and

his agent. The court further gave the following instruction:

The appellant testified for the defense and denied having the conversation over the 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. draft in question without any knowledge of the evidence that Mr. Gaddis purchased the He testified that Williams was managing the any claim of defense to the payment of same 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. Williams in the regular course of his business, then you should find for Mr. Gaddis, the plaintiff, regardless of whether the lumber was or was not delivered by Miles or whether Williams reported the issuance of the draft or not."

Also:

"The court instructs the jury for the plaintiff that, if they believe by the preponderance of the evidence that the defendant ratified the act of Williams over the telephone, they shall find for the plaintiff."

[1] The court instructed for the defendant that in order to establish a business cus

tom of dealing so as to bind the defendant, it is not sufficient to show by the evidence the occurrence of a few isolated instances in reference to the matter and custom sought to be shown to have been established, but the manner and method of dealing must have been sufficient to have created in the minds of those dealt with the fact of such custom. And further that in the case before you it was necessary for the plaintiff, T. B. Gaddis, to have known of said custom, and in addition relied upon said custom, in order to hold the defendant liable for the draft drawn, and that the burden of proving this was upon the plaintiff.

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 office in purchasing said draft, we think the instruction given the plaintiff to the effect that the custom of Allen in dealings in which Williams was permitted to draw drafts, and that they would find for the plaintiff regardless of whether lumber was delivered by Miles or was not, or whether Williams reported the issuance of the draft or not, was error. The evidence with reference to the issuance of these other drafts was admissible for the purpose of showing that Williams in fact had authority to issue such drafts in payment of lumber purchased and for the purpose of showing the probability of the plaintiff's theory that the defendant admitted this authority over the telephone. And the question should have been submitted to the jury on the other features of the case developed by the plaintiff.

[2] It is insisted by the defendant that regardless of whether this is error or not, the judgment should be affirmed because Miles testified that the draft was given for the purchase of lumber and that that is not specifically denied and that the plaintiff was entitled to recover at all events if that be true.

We are not prepared to say on the whole record that Miles' testimony is not disputed,

tiff should have rested his case upon that ground. Allen testified that Miles owed him money already advanced to him, and that Miles had delivered a load of lumber in payment of the former advance, and that all of it had not been paid. Williams' testimony, if believed, shows that the draft was given to enable Miles to bring in other lumber. We think the case must be reversed for the error above indicated and the cause remanded for a new trial.

In view of the fact that there must be a new trial, we think it competent to introduce evidence in reference to the conversation over the telephone, and that, taking all of the facts in evidence, it is for the jury to say whether or not that was an admission of the authority of Williams to draw the draft here involved. It is not competent for the purpose of establishing a verbal acceptance because an acceptance must be in writing, but it is competent to establish Williams' authority to draw drafts which the appellant would be bound to accept. As the authority of his agent may be established by admissions, and if the agent had authority to issue the draft here involved, then it would be a binding obligation, because it would be equivalent to the appellant drawing upon himself.

Reversed and remanded.

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*

*

When a lease contract for one year stipulated "the party of the first part has this day rented and leased to the parties of the second part vember 1st, 1917, at a monthly rental, etc., for one year from Nowith the privilege and right of the parties of the second part or their assigns to renew this lease for one year at a time," etc., and the subsequent notices given the lessor of renewal fixed the beginning and ending of the lease, giving specified dates, and failed to renew the the expiration of the last lease, the lease exlease by giving notice for a renewal until after pired at a fixed time, and notice to vacate was unnecessary under section 2380, Hemingway's Code (section 2882, Code of 1906), and the lessor had the right to remove the lessee under the provisions of section 2383, Hemingway's Code (section 2885, Code of 1906).

Appeal from Circuit Court, Copiah County; 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.

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

See, also, 123 Miss. 624, 86 South. 369.

Wilson, Henley & Hendrick, of Hazelhurst, for appellant.

M. S. McNeil, of Hazelhurst, and Flowers & Brown, of Jackson, for appellee.

"Now, therefore, in consideration of the fact above stated, and further consideration of $1.00 cash in hand paid, we, the firm of Brittian & Henry, hereby transfer, assign, and convey our lease and all rights and privileges 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 con- tained 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 reference to the rental of the store building owned tember, 1917. Said contract read as follows: by her on the south side of Estelle street in "State of Mississippi, County of Copiah.

"This contract and lease made this the 22nd day of September, 1917, by and between Mrs. Serena Johnson, party of the first part, and Brittain & Henry, parties of the second part, witnesseth:

"That the party of the first part has this day rented and leased to the parties of the second part the two-story brick building owned by the party of the first part, and situated on the south side of Estelle street in the city of Hazlehurst, for one year from the 1st of November, 1917, at a monthly rental of forty ($40.00) dollars per month, with the privilege and right of the parties of the second part or their assigns to renew this lease for one year at a time before or after November 1, 1918, as long as they may desire to do so, at the same rental as aforesaid and on the same terms and conditions embraced in this lease.

"It is understood and agreed that the party of the first part will repair the floor of the said building and put it in good condition at once and also put good substantial window shutters to all the back windows of said building and take out fire place and mantel now in said building and fix the rear doors in a substantial manner, and also will paint the front of said building inside and out, and will hereafter keep said building in good repair as long as occupied by said parties of the second part or their assigns.

"The party of the second part shall have the privilege of taking out the platform or substory in the rear end of said building, and to make any additions and improvements and shelving in said building that they may desire, and to remove said improvements and shelving, etc., whenever they may desire.

"Witness the signatures of said party of the first and second part this the 22nd day of September, 1917.

"[Signed] Mrs. Serena Johnson.
"[Signed] Brittian & Henry."

On the 15th day of April, 1918, Brittian & Henry transferred this lease to the Copiah Hardware Company; said assignment being in the following words:

"Whereas, the firm of Brittian & Henry has transferred and conveyed all of its stock of goods, wares and merchandise and business conducted in Hazlehurst, Mississippi, to the Copiah Hardware Company, a corporation organized, and as a part of the consideration for transferring and conveying the stock of goods as aforesaid, the firm of Brittian & Henry agreed and promised to transfer and assign

the city of Hazlehurst.

"Witness our signatures this the 15th day of [Signed] Brittian & Henry. April, 1918. "A. Henry."

On the 26th day of October, 1918, the Copiah Hardware Company notified Mrs. Johnson by letter of their intention to renew the lease for one year from the 1st of November, 1918; said letter reading as follows: "October 26th, 1918.

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"Mrs. Serena Johnson, Hazlehurst, Miss.Dear Madam: On the 15th day of April, 1918, the Copiah Hardware Company purchased and had assigned to it the lease of the store building which you had made to Brittian & Henry of Hazlehurst, Miss., a copy of the said lease, we hand you herewith.

"Under the provisions of your lease contract, we, as the assignees of the said firm of Brittian & Henry, have the right to renew our lease for the said building from year to year by giving you written notice of our intention on or before November 1st annually. "This is to give you notice, therefore, that it is our intention and desire hereby to renew the said lease contract according to its terms and provisions, for one year from November 1st, 1918, and as much longer thereafter as we may choose, according to the terms of the said contract.

"Yours very truly,

"[Signed] Copiah Hardware Company." On October 10, 1919, the said Copiah Hardware Company notified Mrs. Johnson of their intention to renew the lease on said building for another year beginning November 1, 1919, and extending to November 1, 1920, the renewal to be in strict accordance with the terms of the original lease contract. On November 1, 1920, appellant gave Mrs. Johnson notice by letter that they expected to renew the contract for the rental of said building for another year, "beginning November 1st, 1920, and extending to November 1st, 1921. The renewal to be in strict accordance with the terms of the contract referred to above."

On October 17, 1922, the appellant mailed to the appellee another letter giving notice of their intention to renew the contract for the rental of the said building for another year, "beginning November 1st. 1922, and extending to November 1st, 1923. newal to be in strict accordance with the terms of the contract referred to above."

The re

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