(107 So.) described in chapter 138, and, therefore, the manufactured and cotton stalks from which petitioner was not in the class described in a form of paper may be produced. said chapter, and defendant was without authority to grant the exemption. We think the court below properly sustained the demurrer to the petition for mandamus. The essential part of chapter 138 upon which the petitioner claimed the right to exemption is as follows: "Section 1. Be it enacted by the Legislature of the state of Mississippi, that new factories and new enterprises of public utility hereafter established are granted exemption from ad valorem taxation on tangible property used in, or necessary to, the operation of the service or industry hereinafter named, but not upon the products thereof, for a period of five years the new manufactures and new enterprises of public utility to be exempted are enumerated as and limited to * * all factories for making paper or paper products out of wood pulp; cotton stalks or other material. * * * In the case of Currie-Finch Brick & Lumber Co. v. Miller, Auditor of Public Accounts, 123 Miss. 850, 86 So. 579, Judge Ethridge, as the organ of the court, in passing upon a similar statute said: "In the case of Greenville Ice & Coal Co. v. City of Greenville, 10 So. 574, 69 Miss. 86, the court construing a somewhat similar statute held that the rule ejusdem generis be applied, and held that ice did not come within the purview of the statute and was not exempt." Judge Ethridge announced the rule by which we are governed in the instant case as follows: "It was also held that the statute was construed strictly against exemption from taxation or other public burdens, and that the party must come strictly within the statute allowing the exemptionist to obtain an exemption Since that decision, the Attorney General's office, whose duty it is under the law to advise the auditor and other state officers, has constantly applied the rule there announced. "We do not think that a plant for the manufacture of brick comes within the purview of the statute. The court below held the same view, and the judgment is affirmed." We do not think in the case before us the There is no contention by the petitioner in its petition or in its brief that it does anything but utilize manufactured kraft paper in producing paper bags, but it is argued that paper bags are paper products. If this be true, it was the evident intention of the Legislature, by its clear reference to wood Legislature had in mind, or intended to expulp and cotton stalks, to exempt those fac-empt, factories manufacturing articles or patories which produce the manufactured articles from such raw materials as wood pulp, cotton stalks, or other raw material. At least, it is not clear that it was the legislative intent to exempt all those factories producing forms of paper products from manufactured paper, although that paper may have been produced from wood pulp. There is no contention here that anything is produced by this petitioner from the raw material into the manufactured product. If the Legislature had intended to exempt such factories as envelope factories or paper bag factories, it would have been a work of supererogation for the Legislature to have added the words "wood pulp, cotton stalks, or other material." It was the manifest purpose of the Legislature to encourage the conservation of such raw materials as were going to waste, such as the wood from which wood pulp is per products from paper itself which had already been manufactured by another factory from wood pulp or cotton stalks; but we think the Legislature intended to exempt those factories which produce paper or any other kind of paper products from raw materials, such as wood pulp and cotton stalks. It would have been so easy for the Legislature to have written the statute exempting those factories producing paper products and omitted the words "wood pulp or cotton stalks or other material," if they had intended to exempt factories manufacturing paper or paper products. Giving effect to all the language employed in the statute, we are of opinion that only those factories producing paper or paper products from the new material are entitled to the exemption. Affirmed. HOWIE et al. v. SWAGGARD et al. (No. 25423.) fore, to enforce a parol sale of land, charging the defendant with fraudulently refusing to reduce the agreement to writing, though it was part of the contract it should be so reduced, (Supreme Court of Mississippi, Division A. may be demurred to, without an answer to the March 29, 1926.) (Syllabus by the Court.) I. Frauds, statute of 118(1)-Unsigned memorandum of terms of sale of standing timber is not covered by signature of vendor on back of check given him by vendee in part payment, unless it is referred to in check, or physically attached thereto in such manner as to be part thereof. An unsigned memorandum of the terms of a sale of standing timber is not covered by the signature of the vendor on the back of a check given him by the vendee in part payment for the timber, unless it is referred to in the check or physically attached thereto in such manner as to be a part thereof. The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract. 4. Frauds, statute of 126, 129(1, 3)-Part performance will not take parol sale of lands out of statute of frauds; exceptions to statute of frauds on account of part performance will not be ingrafted on statute; fact that vendor fraudulently evaded part of agreement to reduce part of contract to writing is not sufficient fo take case out of statute of frauds. It is the settled doctrine in this state that part performance will not take a parol sale of lands out of the statute of frauds; no exceptions of that character will be ingrafted on the statute. Neither will it be sufficient to take the case out of the statute that it formed a part of the contract itself that it should be reduced to writing, but the vendor fraudulently evaded this part of the agreement. charge of fraud. Appeal from Chancery Court, Rankin County; G. C. Tann, Chancellor. Suit by W. T. Howie and others against C. S. Swaggard and others for specific performance. From a decree sustaining a demurrer to and dismissing complainants' bill, complainants appeal. Affirmed. Howie & Howie, of Jackson, for appellants. S. L. McLaurin, of Brandon, for appellees. SMITH, C. J. This is an appeal from a decree sustaining a demurrer to and dismissing an original bill of complaint, wherein the complainants seek the specific performance of an alleged contract for the sale of standing timber. The bill alleges: That "the complainants bought from the defendant C. S. Swaggard all of the timber on the S. E. 4 of the N. W. 14, section 14, and the W. 1⁄2 of the N. E. 4, section 15, all in township 7, range 3 east, all in Rankin county. state of Mississippi, and paid the said C. S. Swaggard $10 to bind the trade, the payment being accompanied by a memorandum in writing in words as follows, to wit: 'Part payment on all timber on S. E. 4 of N. W. 14, section 14, and the W. 12 of N. E. 4, section 15, township 7, range 3 east, Rankin county, state of Mississippi; balance due $990.00.' That said payment was accepted in part payment for said property, and thereafter the deed was written and executed by the said C. S. Swaggard in words and figures as appears set out by a copy of the same, which said copy is hereto attached and marked Exhibit A hereto. That the said C. S. Swaggard executed this deed, and complainants charge on information and belief that the same has been mailed to a bank for delivery." The bill further alleges that the $10 to "bind the trade" was paid to Swaggard by means of a check which he indorsed "by writing his name on the back thereof" and still retains; that the deed which Swaggard agreed to deliver to the complainants has not been delivered, and Swaggard's reason therefor is that he has conspired with another to fraudulently withhold the deed, in order to obtain a greater price from the complainants for the timber. 5. Equity 179, 225-Where fraud is charged The appellants' contentions are: First, in bill for specific performance, it need not be that the written memorandum which "acanswered, if bill admitting fraud presents no companied" the check to Swaggard is suffi. ground for relief; bill to enforce parol sale cient to satisfy the statute of frauds; second, of land, charging defendant with fraudulently refusing to reduce agreement to writing, Swaggard, having accepted and retained the though it was part of contract, may be de- check for $10 given him "to bind the trade," murred to, without answer to charge of fraud. is estopped thereby "from claiming that he When fraud is charged in the bill, it need is not bound by his agreement"; third, that not be answered, if the bill, admitting the fraud, Swaggard cannot invoke the statute of presents no ground for relief. A bill, there-frauds, for the reason that his motive in re (107 So.) fusing to comply with his promise to execute, Stanford, supra, wherein the court expressly the deed was that he might perpetrate a held that no exception would be ingrafted fraud on the appellants; fourth, that the al- on the statute of frauds, but that it would be legation of fraud contained in the bill should enforced as written. have been denied by answer. Affirmed. CENTRAL WESTERN DEVELOPMENT CO., [1, 2] Assuming, for the purpose of the argument, that the memorandum which accompanied the check to Swaggard identifies him as the seller of the timber and sufficiently sets forth the terms of the sale, it is insufficient to satisfy the statute of frauds and to (Supreme Court of Mississippi, Division A. entitle the appellants to a decree for specific performance for two reasons: (a) The memorandum was not signed by Swaggard, and was neither referred to in the check nor physically attached thereto in such manner as to be a part thereof, and covered by Swaggard's signature on the back of the check. Fisher v. Kuhn, 54 Miss. 480; Wilkinson v. Taylor Mfg. Co., 7 So. 356, 67 Miss. 231. (b) The check was not negotiated or returned to the appellants by Swaggard, but, on the contrary, was retained by him; consequently it did not become effective as a memorandum of an agreement by Swaggard to convey the timber, for, in order to become effective as such, it must have been delivered to the appellants. Johnson v. Brooks, 31 Miss. 17, 66 Am. Dec. 547. [3] 2. The acceptance of part of the purchase money does not give validity to a parol contract for the sale of land, nor estop the acceptor from refusing to carry out the contract. Fisher v. Kuhn, 54 Miss. 480. [4] 3. "It is the settled doctrine in this state that part performance will not take a parol sale of lands out of the statute of frauds; no exceptions of that character will be ingrafted on the statute. Nei March 29, 1926.) (Syllabus by the Court.) I. Corporations 670(2)-Place of its creation ordinarily determines residence of corporation within meaning of attachment statute; foreign corporation doing business in state under laws thereof will be deemed "nonresident" within attachment statutes (Code 1906, § 537 [Hemingway's Code, § 294]). The place of its creation ordinarily determines the residence of a corporation within the meaning of an attachment statute, and a foreign corporation doing business in the state under the laws thereof will be deemed a nonresident within section 537, Code of 1906; Hemingway's Code, § 294, which makes nonresidence a ground for attachment. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Nonresidence Nonresident.] 2. Corporations 670 (2)-Statute subjecting foreign corporations doing business in state to suit to same extent that domestic corporations are held not to domesticate foreign corporations or relieve them of liability to attachment on ground of nonresidence (Code 1906, §§ 537, 919 [Hemingway's Code, §§ 294, 4093]). Section 919, Code of 1906 (Hemingway's Code, 4093), which subjects foreign corporations found doing business in this state to suit here to the same extent that corporations of this state are, does not domesticate such foreign corporations or relieve them of liability to at ther will it be sufficient, to take the case out [5] 4."When fraud is charged in the bill, it need not be answered, if the bill, admitting the fraud, presents no ground for relief. A bill, therefore, to enforce a parol sale of land, charging the defendant with fraudulently refusing to reduce the agreement to writing, though it was part of the contract it should be so reduced, may be demurred to, without an answer to the charge of fraud." Box v. Stanford, 13 Smedes & M. 93, 51 Am. Dec. 142. The case of Finucane v. Kerney, Freem. Ch. 65, relied on by counsel for the appellants in support of their last two contentions, was not decided by this court or its predecessor, the High Court of Errors and Appeals, but by the old "Superior Court of Chancery," and the English decisions therein relied on were afterwards expressly repudiated by the High Court of Errors and Appeals in Box v. 3. Corporations 513 (1)—In action on contract against corporation for grafting pecan trees, it is unnecessary to designate agent of corporation who made contract, or to allege that trees grafted thereunder were on land owned by corporation. In a bill of complaint against a corporation, in which the complainant seeks to recover on a contract for grafting pecan trees, alleged to have been made with the complainant by the corporation, it is unnecessary for the bill to designate the agent of the corporation who made the contract, or to allege that the trees grafted thereunder were on land owned by the corporation. 4. Contracts 335(1)-In action on contract for grafting pecan trees, fulfillment of guaranty that each tree grafted would produce living head is not required to be pleaded as condition precedent to right of recovery, but is matter of defense, to be raised by answer. In a suit to recover for the grafting of pecan trees, on a contract which provides for pay For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ment at the end of each week for the number of trees grafted, and in which the complainant guarantees that each tree grafted would produce a living head, and promises to regraft any which failed so to do, the fulfillment of this guaranty is not a condition precedent to the right of the complainant to recover for grafting the trees, but is a matter of defense to be raised by answer. (Miss. the motion to quash may be disposed of by simply stating that no writ of attachment or sequestration was prayed for or issued herein. The Citizens' National Bank was simply made a party defendant to the bill, and the usual summons for that purpose was served on it, and no defect in the issuance or service thereof is here claimed. Appeal from Chancery Court, Warren Coun- although it is a foreign corporation, it is not [1] The appellant's first contention is that, ty; E. N. Thomas, Chancellor. Attachment in chancery by J. E. Lewis against the Central Western Development Company, Limited, of London, England, and another. From a judgment overruling defendant Central Western Development Company's demurrer and motion to quash the attachment, it appeals. Affirmed and remanded. Henry, Canizaro & Henry, of Vicksburg, for appellant. Brewer, Brewer & McGehee, of Clarksdale, for appellee. SMITH, C. J. This is an attachment in Chancery under section 537, Code of 1906 (Hemingway's Code, § 294), providing for an "attachment of the effects of a nonresident, absent or absconding debtor in the hands of persons in this state," etc. a nonresident of this state within the meaning of the statute hereinbefore referred to. "The place of its creation ordinarily determines the residence of a corporation within the meaning of an attachment statute," and "a foreign corporation doing business in the state under the laws thereof will be deemed a 'nonresident' within the statute making nonresidence a ground for attachment." Fletcher Cyc. Corp. vol. 1, p. 862. [2] Section 919, Code of 1906 (HemingWay's Code, § 4093), which subjects foreign corporations "found doing business in this state, *** to suit here to the same extent that corporations of this state are," does not domesticate such foreign corporations or relieve them of liability to attachment on the ground of nonresidence. [3] The appellant's next contention is that it appears from the bill of complaint that the ed by the written contract has been paid for, and that the bill does not allege "at whose special instance and request," or by what agent of the Central Western Company, he was induced to graft the additional 9,800 pecan trees, and does not allege "on whose land these 9,800 pecan trees were grafted." It was not necessary for the bill to designate the agent of the appellant who acted for it in making this verbal contract, or to allege that the trees grafted were on land owned by the appellant. must disclose that the contract, if made, was Of course, the evidence made by an agent of the appellant acting within the scope of his authority. The bill alleges, in substance, that the ap-grafting of the 1,400 pecan trees contemplatpellant is a corporation, created under the laws of and domiciled in England, "maintains an office and principal place of business in Warren county, Miss.," with a secretary or manager in charge thereof, and owns land and personal property situated in Warren county; that it entered into a written contract with the appellee, by which the ap pellee agreed to graft 1,400 pecan trees growing on the appellant's land for which appellant agreed to pay him the sum of 50 cents per tree and to make settlement at the end of each week for the number of trees grafted; that the appellee grafted the trees covered by the written contract, and, in addition thereto, "the defendant induced the complainant to go ahead and graft under said contract a large number of trees in excess of the said contract, at the same price, and that said complainant grafted, at defendant's request, 9,800 pecan trees in strict accordance with their arrangement," for the grafting of which defendant owes the complainant a balance of $2,139.50. The Citizens' National Bank of Vicksburg, Miss., was made a party defendant, and is alleged to be indebted to or to have money or effects in its hands belonging to the appellant. The bill was answered by the Citizens' National Bank, but the Central Western Development Company demurred thereto, and also filed a motion to quash the "attachment heretofore issued." This demurrer and motion were both overruled, and an appeal to this court to settle the principles of the case [4] The appellee, by his contract, guaranteed that the trees grafted would each produce "a living head," and promised to regraft any which failed to do so, and one of the appellee's contentions is that the bill should allege a fulfillment of this guaranty. The contract does not make the compliance with this guaranty a condition precedent to the grafting the trees, for it expressly provides right of the appellee to demand payment for for payment "at the end of each week for the number of trees grafted." Consequently, any breach which the appellant may have committed of this guaranty or warranty is a matter of defense to be made by answer. firmed, and the appellee will be allowed 30 The decree of the court below will be afdays in which to answer the bill of complaint after the filing of the mandate in the court below. (107 So.) STANDARD OIL CO. v. NATIONAL SURETY CO. et al. (No. 25523.) are "materials" used in the prosecution of the work within the meaning of section 1, chapter 217, Laws of 1918. [Ed. Note.-For other definitions, see Words (Supreme Court of Mississippi, Division A. and Phrases, First and Second Series, Ma March 29, 1926.) (Syllabus by the Court.) 1. Municipal corporations 54-"Political subdivision of state" is subdivision to which has been delegated certain functions of local government. A "political subdivision” of a state is a subdivision thereof to which has been delegated certain functions of local government. [Ed. Note. For other definitions, see Words and Phrases, Second Series, Political Subdivision.] 2. Drains 13-Drainage districts, vested with certain necessary governmental powers, are political subdivisions of state. Drainage districts that are created for the purpose of draining and reclaiming wet and overflowed lands, and of conserving the public health and convenience, for the accomplishment of which they are vested with the necessary governmental powers, are political subdivisions of the state which created them. 3. Drains 49-Provision that public contractor will promptly pay all persons supplying him labor or material need not be set forth in his bond, but such provision in contract is sufficient if bond is conditioned that contractor shall perform all matters and things contained, set out, or referred to in contract (Laws 1918, c. 217, §§ 1, 3). The provision of section 1, chapter 217, Laws of 1918, which requires a person entering into a contract with the state, etc., for the construction of any building or work to execute the usual bond with good and sufficient sureties, with the additional obligation that such con. tractor shall promptly make payment to all persons supplying labor or material therefor, does not require this additional obligation to be set forth in the bond, but a provision therefor in the contract is sufficient when the condition of the bond is that the contractor shall well and truly perform all the matters and things contained, set out, or referred to in the contract. 4. Limitation of actions 180(5)-One demurring and wishing to set up statute of limitation as ground thereof should assign such statute in demurrer as one of grounds (Code 1906, § 754 [Hemingway's Code, § 537]). can and is sought to be availed of by demurrer, it must be assigned in the demurrer as one of the grounds therefor. In a case wherein the statute of limitation 5. Drains 49-Oil and gasoline furnished contractor for use in operating his machinery and digging canals and ditches for drainage district are "materials used in prosecution of work." within statute relating to contractor's bond (Laws 1918, c. 217, § 1). terials.] Appeal from Circuit Court, Quitman County; W. A. Alcorn, Jr., Judge. Suit by the Standard Oil Company against the National Surety Company and another on a contractor's bond. From a judgment sustaining a separate demurrer to the declaration by each of the defendants, plaintiff appeals. Reversed and remanded. Wells, Stevens & Jones and G. G. Lyell, all of Jackson, and Boone, Lowrey & Boone, of Marks, for appellant. Cutrer & Smith, of Clarksdale, and Gore & Gore, of Marks, for appellees. SMITH, C. J. This is a suit, by the appellant, under chapter 217, Laws of 1918, on the bond of Clark-Hunt Contracting Company on which the National Surety Company is surety, executed by it to the Pompey Lake Drainage District, to insure the "construction and completion" of several ditches and canals for which it had contracted with the Pompey Lake Drainage District. One of the provisions of the contract entered into by the Clark-Hunt Contracting Company with the drainage district is: "The contractor shall discharge all claims for work done and material furnished in the prosecution of the work, and shall, upon request, furnish the board with satisfactory evidence that all persons who have done work or furnished material under this contract have been fully paid for such work or material." The condition of the bond is that and truly perform all the matters and things "Clark-Hunt Contracting Company shall well therein (referring to the contract) contained and set out, or therein referred to, as it is obligated and bounden so to do, and shall well and truly perform all the matters and things as it is or may become bounded so to do." The declaration alleges that the appellant sold Clark-Hunt Contracting Company oil and gasoline of the value of $431.79, all of which was used by Clark-Hunt Contracting Company "in the performance of the drainage work under the contract with the Pompey Lake Drainage District, the same being material necessary in the operation of the said work, under said contract"; that Clark-Hunt Contracting Company abandoned its contract, and notice thereof was published by the drainage district as provided by the statute. Separate demurrers were filed by each of the defendants, and from a judgment sustaining them the appellant has brought the case Oil and gasoline furnished a contractor for use in operating machinery used by him in digging canals and ditches for a drainage district to this court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |
