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(106 Miss. 706)

WHITEHEAD et al. v. KIRK.
(No. 15,843.)

(Supreme Court of Mississippi. March 16,
1914.)

1. EXECUTORS AND ADMINISTRATORS (§ 176*)ALLOWANCE TO SURVIVING WIFE-YEAR'S SUPPORT.

Where a husband died leaving a will de vising all his property to his sisters to the exclusion of his wife, the wife was entitled to the year's support provided by Code 1906, § 2052.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 88 661-666; Dec. Dig. § 176.*]

of all exemptions and other demands or interest in his estate, both real and personal. "In the eighth item of his will he directed the legacy given to his wife to be paid before all other legacies, and in the twelfth item of his will he declared that it had been his aim to make his wife equal to any one of the other heirs and no more." The above quotation is taken from the opinion of the court, and to make clear what the court did decide we quote from the opinion this statement, viz.: "To permit the widow to take the legacy under the will of her husband, and

2. EXECUTORS AND ADMINISTRATORS (§ 178*)—at the same time to receive the benefit of an ALLOWANCE TO SURVIVING WIFE YEAR'S SUPPORT-DISCRETION Of Court.

The amount of the year's support to a widow is within the sound discretion of the chancellor, in determining which he can properly take into account her station in life and the demands which such station imposed upon her, and it could not be said that the court abused its discretion in allowing $1,200 in money.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. §§ 667, 668; Dec. Dig. 178.*]

Appeal from Chancery Court, Yazoo County; G. G. Lyell, Chancellor.

allowance of one year's provision, directly against the will of the testator, would be to allow her to affirm the will as to the $1,000 legacy, and repudiate it as to the year's provision. This may not be done. Shafer v. Shafer's Ex'r, 129 Ind. 394 [28 N. E. 867]." It may be conceded, and for the purposes of this decision it is conceded, that this court in the McGaughey Case, inferentially, at least, overruled Turner v. Turner, 30 Miss. 428, and McReary v. Robinson, 12 Smedes & M. 318. We think that the rule of construction announced in the last-named cases is the better rule, and in our opinion the reasoning correctly interprets the legislative intention. "The allowance for a year's provision stands upon different ground-that of the imme

Application by Mrs. W. J. Kirk for the setting apart to her of a year's support out of her deceased husband's estate. From an order of the chancellor, confirming the report of the commissioners, setting aside $1,200, Imogene Whitehead and others appeal. Af-diate necessities of the widow and children.

firmed.

See, also, 62 South. 432.

E. L. Brown and Barnett & Perrin, all of Yazoo City, for appellants. Campbell & Campbell and Barbour & Henry, all of Yazoo City, for appellee.

It interferes with no right of disposition
which the testator could be presumed to
make of his property, and therefore, from its

peculiar nature, is allowed as a privileged
claim upon his estate, whether he has left
a will, or not. ·
It is intended as a
humane provision for the support of herself
and her children, when she is presumed to be
left in a condition in which she is unable to
provide for herself."

COOK, J. W. J. Kirk died, leaving a will devising all of his property to his sisters, to the exclusion of his wife. The wife's name [2] In regard to the contention that the alis not mentioned in the will. Appraisers of lowance was grossly excessive, we cannot see the estate of the testator were appointed, that this is so. This was left to the sound and set aside to the widow, who had no chil-discretion of the chancellor, and in determindren, $1,200 in money for a year's comfortable support. Exceptions were taken to this report by appellants, devisees under the will, which exceptions were overruled. From the action of the chancellor, confirming the report of the commissioners, this appeal is prosecuted.

ing the amount he could properly take into account the manner of living to which the widow during the life of her husband had been accustomed-her station in life and the demands which such station imposed upon

her.

Affirmed.

(106 Miss. 714) (No.

[1] The contention of appellants is that the widow is entitled to no allowance under section 2052, Revised Code of 1906, the decedent having died testate as to his entire estate, CRYSTAL ICE CO. v. HOLLIDAY. and the allowance, if she is entitled thereto at all, is grossly excessive. In support of the contention that in cases where the de

cedent leaves a will the widow is not entitled to one year's support, counsel for appellants cite McGaughey v. Eades, 78 Miss. 853, 29 South. 516. In that case the widow, by the will of the decedent, was left a legacy of $1,000, and he expressly stipulated in his will that said sum of $1,000 should be in lieu

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16,334.)

(Supreme Court of Mississippi. March 16, 1914.)

1. SALES (8 52*)—EVIDENCE OF CONTRACT

ACTION FOR BREACH.

In an action for damages for breach of a contract to sell ice to plaintiff during the season, plaintiff's evidence held to show a completed contract between the parties.

[Ed. Note.-For other cases, see Sales, Cent Dig. §§ 118-144, 1045; Dec. Dig. § 52.*]

2. FRAUDS, STATUTE OF (§ 91*)—SALE of PEB-sale of ice at Brookhaven, to recover damage SONALTY-PART PERFORMANCE,

An oral contract for the sale of ice to plaintiff during the season was valid under the statute of frauds (Code 1906, § 4779), where 30 tons of ice were delivered to plaintiff in part performance of the contract.

[Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 164; Dec. Dig. § 91.*] 3. FRAUDS, STATUTE OF ( 159*)—EVIDENCE OF PART PERFORMANCE-JURY QUESTION.

In an action for breach of an oral contract to sell plaintiff ice during the season for resale, the truth of plaintiff's evidence that the 30 tons of ice delivered to him by defendant were delivered in part performance of the contract was for the jury.

[Ed. Note. For other cases, see Frauds, Statute of, Cent. Dig. 8 378; Dec. Dig. § 159.*] 4. SALES (8 418*) - BREACH OF CONTRACT – DAMAGES. One who purchased ice for the season for the purpose of reselling it in an established retail business, to the seller's knowledge, could, in an action for the seller's breach of contract by failing to furnish the ice, recover profits he would have realized by its resale.

[Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.*] 5. EVIDENCE (§ 498*) - EVIDENCE-PROFITSOPINION EVIDENCE.

In an action for breach of a contract to sell plaintiff ice for the season for resale, plaintiff's opinion as to the number of cars of ice he would have sold and the profits he would have realized is not competent, but he should testify to facts from which the jury could form its own opinion on the question. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2289; Dec. Dig. § 498.*] 6. DAMAGES (§ 40*) · PROFITS. Loss of profits in a business cannot be recovered as damages for breach of contract, unless the facts showing the profits are so definite that they may be reasonably ascertained by calculation, and the defaulting party has notice that such damages would result, either from the nature of the contract or from being told of the circumstances surrounding the contract.

ELEMENTS

· Loss of

[Ed. Note.-For other cases, see Damages, Cent. Dig. 88 72-88; Dec. Dig. § 40.*] 7. SALES (8 418*) - BREACH OF CONTRACTDAMAGES TO BUYER-EXPENSES INCURRED. In an action for damages for breach of contract to sell plaintiff ice for the season, plaintiff cannot recover, in addition to loss of profits, the expense incurred by him in preparing to handle and sell the ice; such expense being necessarily incurred by him in making the profits.

reason of the breach by appellant of a conalleged to have been sustained by him, by tract to sell him ice during the season of 1909. According to appellee's testimony, appellant's manager came to Hazlehurst during the month of January, 1909, in order to arrange for the sale to him of ice for the season of that year. The contract alleged to have been executed is contained in the following questions and answers which appear in the testimony of appellant himself: "Q. I'll ask you to explain to the jury how that contract was made, with whom it was made, and all the circumstances connected with it. A. Some time about the first of January, I don't remember the date, I was at home, and Mr. Nalty called me up over the telephone and told me that he was in Hazlehurst and wanted to see me, and I asked him to come out to my house; that I was sick and wasn't able to go up in town. He said no, that he could arrange our business over the telephone just as well, and said he was out fixing up his contracts for that year's business; that he had been to Crystal Springs and stopped off there to see me. Q. That he had been to Crystal Springs and stopped off there to see you? A. At Hazlehurst to see me. And he wanted to know about my business and what I would want. I told him I would contract for 12 cars of ice of 15 tons' capacity, with the understanding that I would buy my entire supply from him, and that he would furnish me, in addition to the 12 cars, all that I could sell at $4.25 in 15-ton cars delivered in Hazlehurst, me to pay the freight and deduct that from remittance, and in less than full cars, I was to pay him $5 and pay the freight." Afterwards and prior to the alleged breach of the contract, which occurred in April following its execution, appellant made a number of small shipments of ice to appellee, aggregating about 30 tons. It then declined to ship appellee any more ice, assigning therefor reasons not necessary here to be set out. Nalty testified in behalf of appellant, denied making this contract, and stated that appellant had no contract whatever with appellee, but was simply selling him ice when ordered by him in the same manner that it did any other of its custom

[Ed. Note. For other cases, see Sales, Cent. Dig. 8 1174-1201; Dec. Dig. § 418.*] Appeal from Circuit Court, Lincoln Coun-ers. Appellee sought to recover profits which ty; D. M. Miller, Judge.

Action by J. A. Holliday against the Crystal Ice Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

he claimed he would have made, not only on the 12 cars of ice mentioned in the contract, but on all of the ice which he claims he would have purchased during the season. The court, however, limited him to recovery of loss of profits on the twelve cars.

At the close of the evidence, appellant re

H. Cassedy, of Brookhaven, for appellant. McNeil & Smylie, of Crystal Springs, for ap-quested the court to exclude the same and to pellee.

grant it a peremptory instruction. This mo SMITH, C. J. This suit was instituted tion was overruled and the instruction refusin the court below by appellee, a retail ice ed. The grounds of this motion and request dealer at Hazlehurst, against appellant, a cor- for a peremptory instruction are: First, that poration engaged in the manufacture and the evidence herein before set out discloses, if

of estimation are so definite and certain that they can be ascertained reasonably by calculation, and then the party in fault must have had notice, either from the nature of the contract itself, or by explanation of the circumstances at the time the contract was made, that such damages would ensue from nonperformance."

anything, a unilateral contract, that is, one | business cannot be allowed, unless the data by the terms of which appellant only is bound. Second, that the contract is void under section 4779 of the Code for the reason that it is for the sale of personal property of value greater than $50, is not in writing, and there was no delivery to appellee of any part of the property contracted to be sold. [1] There is no merit in either of these contentions. Appellee's testimony, if true, discloses a complete contract, partly performed, in which he agreed to purchase, and appellant to sell, the ice therein referred to.

[2, 3] Appellee testified that the 30 tons of ice delivered to him were delivered in part performance of this contract, and if that is true the contract is valid, and the truth thereof was a question for the determination of the jury. Stonewall Mfg. Co. v. Peek, 63 Miss. 342.

[4] Appellee, over the objection of appellant, was permitted to recover the profits which he claimed he would have made by a resale of the ice had it been delivered to him by appellant according to the terms of the contract. It appears from appellee's testimony that he purchased this ice with the knowledge of appellant for the purpose of reselling it in an established retail business for the purpose of making a profit thereby, and, if this is true, he was unquestionably entitled to recover whatever profit he would have realized by the resale of the ice. Railroad v. Ragsdale, 46 Miss. 458; White v. Leatherberry, 82 Miss. 103, 34 South. 358; Beach v. Johnson, 102 Miss. 419, 59 South. 800.

[5, 6] In order to establish his alleged loss of profits, appellee introduced testimony showing that he entered the ice business in July of the preceding season; that during the months of July and August thereof he sold a certain number of cars of ice; that he had the best trade of the town; that he made during the last season a profit of $35 per car; that he would have sold during the second season, the one covered by this contract, 40 cars of ice and would have realized a profit thereon of $40 per car. The facts on which he based his estimate of profits made during the two seasons and of the number of cars he would have sold during the second season are not disclosed. Appellee's opinion as to the number of cars he would have sold and the amount of profit he would have thereby realized is incompetent; the jury should have been given facts from which to form their own opinion. The remaining evidence was too vague and indefinite to enable the jury to ascertain the amount of his prospective profits with any sort of reasonable certainty. The rule governing recovery of profits lost by reason of breach of contract was long since announced in this state in the case of Railroad Co. v. Ragsdale, 46 Miss. 483, wherein it was held that "losses of profits in a

[7] In addition to loss of profits, appellee introduced evidence showing, and was erroneously permitted to recover, the expense incurred by him in preparing to handle and sell the ice. Had he made the profits claimed, he would necessarily have incurred this expense. and his profits would have been the net amount after deducting from his gross receipts the amount which he paid for the ice plus the expense of carrying on his business.

For the reason that the court below permitted appellant to recover profits when the jury were given no data from which to calculate the amount thereof with any reasonable degree of certainty, and for the further reason that it permitted him to recover both profits and the expense he would have incurred in realizing the same, its judgment must be, and is, reversed, and the cause remanded.

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1. ADVERSE POSSESSION (8 79*)-COLOR OF TITLE-VOID TAX DEED.

sale for nonpayment of taxes, and a tax deed Lands owned by the state are not subject to conveying such lands is wholly void; hence three years' occupancy under such a tax deed will not bar suit; Code 1906, § 3095, not applying where the deed is wholly void.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 459-462; Dec. Dig. § 79.*} 2. ADVERSE POSSESSION (§ 100*)-CONSTRUC

TIVE POSSESSION.

Actual occupancy of that portion of land tle will not give the grantee constructive posincluded in a deed to which the grantor had tisession of other lands included in the deed, but to which his grantor had no title.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 547-574; Dec. Dig. 100.*]

3. ADVERSE POSSESSION (§ 31*)-WHAT CONSTITUTES-NOTICE TO OWNER.

While possession, to be adverse, must be actual, hostile, and exclusive, the nature of the the land, but, whatever the character of the possession may vary according to the nature of land may be, the possession to be adverse must be evidenced by such acts as are calculated to dicate to him that the land is being appropriarrest the attention of the true owner, and inated by another.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 128-133; Dec. Dig. § 31.*]

4. ADVERSE POSSESSION (§ 114*)—EVIDENCESUFFICIENCY.

Evidence of the possession of defendant's lessor held insufficient to show that it was ad

pass.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. § 114.*]

verse or amounted to more than mere tres- | admits that this tax title is void, but claims that the club's title to the land has been perfected, both by reason of an actual occupancy of the land for more than three years, under section 3095 of the Code, and by reason of having been in adverse possession thereof for more than ten years.

5. ADVERSE POSSESSION ( 88*)-WHAT CONSTITUTES-PAYMENT OF TAXES.

Payment of taxes will not render a defective possession a sufficient possession to ripen into title, and, at most, constitutes evidence of claim of ownership.

[Ed. Note.-For other cases, see Adverse Possession, Cent. Dig. & 509-511; Dec. Dig. § 88.*]

6. ADVERSE POSSESSION (§ 58*)-CLAIM OF TITLE-EFFECT.

A mere claim of title to land, unaccompanied by actual adverse possession, will not bar the true owner.

[Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 279-281: Dec. Dig. 58.*]

Appeal from Chancery Court, Coahoma County; M. E. Denton, Chancellor.

Bill by J. H. Leavenworth against W. D. Reeves. From a decree dismissing the bill, complainant appeals. Reversed, and judgment rendered for complainant.

Maynard & FitzGerald, of Clarksdale, and Tim E. Cooper, of Jackson, for appellant. D. A. Scott, A. D. Somerville, and E. M. Yerger, all of Clarksdale, for appellee.

[1] Section 3095 has no application, for the reason that, as the land was owned by the state in 1896, it was not then subject to taxation. The defect in this tax deed does not arise by reason of the defective execution by the state's administrative officers of a power to assess and sell for taxes, but by reason of the fact that the Legislature had not conferred, or attempted to confer, any such power upon them at all, and to such a defect this statute has no application. case of Hoskins v. Railroad Co., 78 Miss. 771, 29 South. 518, 84 Am. St. Rep. 644, is conclusive of this proposition, and that case was not overruled by, and is not in conflict with, the case of Hamner v. Lumber Co., 100 Miss. 349, as was expressly stated in the opinion rendered therein at page 434, 56 South. 466.

The

In

The cases of Patterson v. Durfey, 68 Miss. 779, 9 South. 354, Carlisle v. Yoder, 69 Miss. 384, 12 South. 255, and Smith v. Leavenworth, 101 Miss. 238, 57 South. 803, relied on by appellee, are not in point. In Patterson v. Durfey, the averment of the bill SMITH, C. J. Appellant filed his bill in simply was that the land was assessed to, the court below, claiming to be the owner not that it was owned by, the levee board; of the land here in controversy, and alleg- while in Carlisle v. Yoder it did appear that ing that appellee was engaged in cutting tim- the land was owned by the levee board, still, ber thereon, claiming the right so to do by it was subject to county and other local virtue of a contract entered into by him with taxes, and the sale thereof was for the colO. H. Johnson Hunting Club, which club also lection of both state and county taxes. claimed the ownership of the land, and pray- Smith v. Leavenworth, the land was assess ed that this contract be canceled as a clouded to, but was not owned by, the state. An upon appellant's title, and appellee be en- examination of the facts of that case will joined from cutting the timber. From a de- disclose that the land was sold to the state cree dismissing this bill and dissolving the for the taxes of 1876. This sale, however, temporary injunction that had been granted was considered by the Attorney General and thereon, this appeal is taken. treated by the court as being defective, and therefore as conferring no title on the state. The land, however, was thereafter carried on the assessment roll as the property of the state until 1881. In 1880 the Attorney General directed that the land be stricken from the auditor's list and certified back to the county wherein the sale for taxes was made. In 1881, while the land still remained improperly assessed to the state, the tax collector sold it for the taxes claimed to be due thereon for 1880. This sale the court held to be void; but, the purchaser having been in possession of the land thereunder for more than three years, his title was held In 1896, while owned by the state, the land good under section 3095 of the Code. From was erroneously placed upon the assessment this it appears that the land was subject to roll, and the person to whom it was assessed taxation in 1880, and therefore could have having failed to pay the taxes assessed there- been assessed and sold for the taxes of that on, it was, during the next year (1897) sold year, so that the defect in the sale therefore for the collection thereof to O. H. Johnson arose, not by reason of the lack of power and others, who in 1900 sold it, along with in the state's administrative officers to asother lands, to the hunting club. Appellee sess and sell, but by reason of the defective

Appellant, by his evidence, disclosed a perfect record title to the property, and the attempt on the part of appellee is to establish title in the hunting club by adverse possession. In 1899, and for a number of years prior thereto, the land was owned by the state, having been acquired by it under various tax sales. In April and May of that year it was purchased from the state by Jeff Perkins and E. J. Sawyer with money furnished by appellant; they taking the legal title to themselves in trust for him. They afterwards conveyed it to John Lanning, and Lanning conveyed it to appellant.

execution of a power so to do. The land was and others to the club, executed in 1900, consimply erroneously assessed.

veyed, in addition to the land in controversy, a large body of other land, all of which is wild land, not suitable for agricultural purposes, and is valuable only for the timber thereon, and for use as a game preserve. The club, as its name imports, is an association formed for the purpose of providing its members with facilities for hunting game. In order to accomplish this purpose, the club, immediately after the execution to it of the deed from Johnson and others, built a hunting lodge on a portion of the land, to which its title is valid, some distance from the land in controversy, which lodge has since been annually occupied by its members and guests at intervals during the hunting seasons. At all other times it has been vacant and the land unoccupied, except as will hereinafter appear. When the lodge was not occupied, it was visited at intervals by agents of the club charged with the duty of looking after it. The club also, shortly after receiving its deed, had the land therein convey

Smith v. Leavenworth is supported by both Patterson v. Durfey and Carlisle v. Yoder; and, while it is true that in Hoskins v. Railroad Company it was said that these cases, "so far as they are in conflict with this opinion, are overruled," an examination of them will disclose that they are not in conflict therewith. This is made clear by the language of one of the counsel for appellant in the case of Hamner v. Lumber Company, 100 Miss. 349, as will appear from his brief on page 367, 56 South. 466, on page 472. This language is as follows: "Now, it is manifest that all that was said in Hoskins v. I. C. R. R. Company related to the nonliability of the land to taxation, and the rule laid down was that the statute had no application where the land could not be taxed. Judge Terral, proceeding, stated that there was no difference between the ownership of land by the federal government and by the state or levee board or other municipal authorities, if the land in their hands was non-ed surveyed and its lines "blazed." It has taxable. He evidently meant to say that the cases of Patterson v. Durfey and Carlisle v. Yoder were overruled only in so far as they conflicted with the rule thus announced. Now, as matter of fact, it is easy to show that there is no conflict between Hoskins v. Railroad Co., on the one side, and Patterson v. Durfey and Carlisle v. Yoder, on the othIn Patterson v. Durfey it was not averred that the lands were owned by the levee board. It was only averred that they were assessed to the levee board, which might very well have been true, and yet they may not have been owned by the board. But in Carlisle v. Yoder it does distinctly appear that the lands were owned by the levee board. Now, lands owned by the levee board were not exempt from taxation. They were exempt from state taxes, but they were liable to county taxes and other local taxes. They were sold both for the state and county taxes, and, of course, the sale was void if it had been attacked; but it was not attacked, and the purchasers were permitted to remain in possession. Here was default on the part of the former owner. His lands were liable to a part of the taxes for which they had been sold, and he sat by and permitted the purchaser to remain in possession. The language of Judge Terral in Hoskins v. Railroad Co. makes it clear that what he had in mind was a sale of lands which were not liable to taxation at all. He expressly says that section 2735 applies to sales of lands that are taxable and salable, and in which there is some defect in the proceeding relating to the assessment or sale; and he says in such cases the owner, knowing his land to be taxable, ought to be on his guard against their loss by any negligence of his own."

er.

[2] The facts upon which the club's claim of title by adverse possession is based are

Appel

also, at different times, commencing shortly
after the receipt by it of its deed, had trails
or paths cut through the land aggregating
"ten or fifteen" in number. Some of these
trails were cut over the land in controversy,
but when, where, or how many does not ap-
pear. It also built several bridges across
sloughs and bayous, none of which, however,
were on the land in controversy. These
trails and bridges were for the use of the
members of the club while hunting.
lant owns, in addition to the land in contro-
versy, a large body of other land contiguous
to that of the club, and, with his permission,
the members of the club hunted over his land
to the same extent and in the same manner
that they did over that belonging to the club.
All of the land belonging to the club, includ-
ing that in controversy, and also other land
of appellant, was by the club posted, and
trespassers warned off. These notices, ac-
cording to the testimony of the president of
the club, which were posted on the club's
land and that in controversy, were signed,
"The O. H. Johnson Hunting Club, by O. H.
Johnson, President," and those posted on
land belonging to appellant, other than the
land in controversy, were signed “J. H. Leav-
enworth, by O. H. Johnson, Agent." The
permission given the club by appellee for its
members to hunt over his lands seems to
have not been given until 1906.

In section 9, lots 4, 3, 5, and 6 are contiguous, having one common corner. Lot 4 is owned by a man named Smith, or rather by his heirs, he being dead. Lot 3 is owned by the club, and was a portion of the land conveyed to it by the deed from Johnson and others. And lots 5 and 6 are two of the lots here in controversy. At the time of the club's purchase, Smith was living on lot 4. He was also cultivating a small portion of lot 3, and

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