Volume 226 — Mississippi Reports

<bold>1. Homicide — murder — self-defense — evidence — sustained</bold> <bold>conviction.</bold> Evidence sustained conviction for murder as against plea of self-defense. Headnote as approved by Roberds, P.J.

<bold>1. Railroads — personal injuries — defective door — business</bold> <bold>invitee — burden of proof.</bold> In action by employee of shipper against railroad for injuries sustained when his hand slipped off latch and was jammed between frame and door of freight car, which at<page_number>Page 78</page_number> the time he was engaged in closing, Supreme Court held that in order to recover employee, a business invitee, would have had to show that door was in a defective condition, and that defendant-railroad knew, or by exercise of reasonable care should have known, that it was defective; and that the evidence failed to meet this burden of proof. Headnote as approved by Ethridge, J.

<bold>1. Robbery — assault and battery with intent to rob — essential</bold> <bold>element of proof.</bold> Failure to consummate the crime of robbery is an essential element of proof in a prosecution under an indictment charging assault and battery with intent to rob. Sec. 2018, Code 1942. <bold>2. Statutes — assault and battery with intent to rob — crime of</bold> <bold>robbery completed — not completed.</bold> Where there is doubt whether the crime of robbery was completed, the State may elect to prosecute for assault and battery with intent to rob, and statute prohibiting the conviction of a person for an assault with intent to commit a crime, or an attempt to commit an offense, when it appears the crime intended or attempted was perpetrated, does not cover a case wherein it is doubtful that the offense attempted was actually completed by the accused. Sec. 2018, Code 1942. <bold>3. Robbery — assault and battery with intent to rob — conviction</bold> <bold>reversed — where robbery completed.</bold> Where evidence showed that defendant, who had been convicted of crime of assault and battery with intent to rob, had actually completed the robbery, such conviction was contrary to statute referred to in Headnote No. 2, and conviction was reversed, but defendant was ordered held for further action of the grand jury. Sec. 2018, Code 1942. Headnotes as approved by Gillespie, J.

<bold>1. Judgments — non obstante veredicto — proper.</bold> In suit by seller to recover a deficiency judgment against buyer under conditional sales contract for an automobile, where buyer offered no competent evidence to sustain his defense, Trial Court should have granted seller's motion for a directed verdict, and subsequent granting of seller's motion for judgment notwithstanding the verdict was nothing more than a correction of Court's error in refusing first motion, and was proper even though there is no statute in Mississippi which authorizes the rendition of judgment notwithstanding the verdict. Headnote as approved by McGehee, C.J.

<bold>1. Municipalities — sidewalks — injury to pedestrian when catch</bold> <bold>basin cover tilted — negligence — jury question.</bold> In suit against City for injuries to woman when cast-iron cover over catch basin under sidewalk tilted as she stepped on outer edge thereof, whether city employee failed to replace cover securely after cleaning basin about 15 days before accident, or cover or rim or other supports thereof became so worn during 20 years' use that it slipped off inner rim or supports and tilted with plaintiff and whether such worn condition could have been discovered by city employees' exercise of ordinary care in making reasonable inspections of basin were questions for jury. Headnote as approved by McGehee, C.J.

<bold>1. Joint adventures — fiduciary relationship.</bold> Relationship between joint adventures is fiduciary in character and imposes upon all participants utmost good faith, fairness and honesty in their dealings with each other as respects enterprise, and this is especially true of those to whom property involved is intrusted. <bold>2. Joint adventures — transactions in name of one —</bold> <bold>trusteeship.</bold> Where transactions of joint adventure are conducted in name of one of the parties, he becomes in equity trustee for all as to any rights or assets acquired in his name. <bold>3. Minerals — joint adventure — development of oil lands —</bold> <bold>adjacent lands.</bold> Where parties had entered into joint adventure for development of oil lands, and adventure was conducted in name of one of the parties, he could not in equity and good conscience eliminate other joint adventurer from fruits of subsequent contract which he entered into without knowledge of other joint adventurer, and which was for drilling on adjacent tract of land, where entering into such contract had been prompted by information gained by drilling conducted under joint adventure. <bold>4. Joint adventures — abandonment of — evidence required to</bold> <bold>establish.</bold> Clear, unequivocal, and decisive evidence is required to establish affirmative defense of abandonment of a joint adventure.<page_number>Page 563</page_number> <bold>5. Joint adventures — abandonment — failure of party to</bold> <bold>contribute as — rule.</bold> Failure of a party to a joint adventure to contribute his share of the expenses is ground for abandonment of the enterprise by his coadventurers, and his exclusion from further operations by them, provided they take definite steps to effect that result, but they cannot, however, continue the enterprise, using what he has contributed, or failing to notify him of the dissolution, and then exclude him from a share of the resulting profits. <bold>6. Joint adventures — abandonment — burden of proof.</bold> The burden of proof is on the party relying on the affirmative defense of abandonment to establish it by clear, decisive and unequivocal evidence. <bold>7. Minerals — joint adventure — abandonment — not established.</bold> In suit to enforce alleged right of one partner as against another as joint adventurers in development of oil lands, there was no clear, unequivocal and decisive evidence as required to establish that partner had abandoned adventure where partner had continued in his efforts to promote joint adventure after alleged date of his abandonment. <bold>8. Joint adventures — development of oil lands — in name of one</bold> <bold>adventurer — duties — rights of coadventurer.</bold> Where joint adventure for development of oil lands was conducted in name of one of the adventurers, under such fiduciary relation he was under duty to fully advise other joint adventurer of progress of adventure and was without lawful right to enter into advantageous new contract which would eliminate other joint adventurer where such other joint adventurer had not abandoned the adventure. <bold>9. Joint adventures — development of adjacent tract — made</bold> <bold>possible by operations on original tract — inured in equal</bold> <bold>benefit to co-adventurers.</bold> Where two persons entered into agreement as equal joint adventurers for development of tract of oil lands, with interests in the name of one of them, and he without the knowledge of the other entered into new agreement with a company for development of adjacent tract of land, the opportunity for which was made available because of joint adventurers' operations on original tract, original joint venture contract was continued by new agreement between company and the joint adventurer, and when he successfully defended action establishing<page_number>Page 564</page_number> interest in adjacent tract, then a producing oil field, judgment inured in equal benefit to other adventurer who would be taxed with losses and expenses incurred including attorney's fees. Headnotes as approved by McGehee, C.J.

<bold>1. Mortgages — foreclosure — suit to set aside — evidence —</bold> <bold>holder entitled to have deed of trust foreclosed — to extent</bold> <bold>of satisfying indebtedness secured thereby.</bold> In suit to set aside foreclosure sale made under deed of trust and for other general or special relief, Supreme Court held that trial court was justified in finding from proof that party at whose instance foreclosure had been had, had previously made payment to beneficiary and received from him the notes and deed of trust to hold until reimbursed for sums paid, and in such capacity was entitled to have deed of trust foreclosed at least to the extent of satisfying the indebtedness secured thereby, but that any money loaned to deed of trust grantor after his conveyance of his interest in subject land was not secured by deed of trust, unless payment of money was made, under authority of deed of trust, to protect security of deed of trust against prior liens.<page_number>Page 705</page_number> <bold>2. Mortgages — foreclosure — extinguished lien of subordinate</bold> <bold>deed of trust.</bold> Lien of subordinate deed of trust was extinguished by foreclosure of prior deed of trust. <bold>3. Tenants in common — purchase at foreclosure sale did not</bold> <bold>inure to complainant as an alleged tenant in common —</bold> <bold>evidence.</bold> Evidence would not sustain complainant's contention that land had been purchased at foreclosure sale for benefit of tenant in common and that purchase inured to complainant's benefit. <bold>4. Mortgages — foreclosure conducted by agent of named trustee —</bold> <bold>valid — evidence.</bold> Evidence would not sustain complainant's further contention that foreclosure sale was null and void for reason that sale was not conducted by trustee named in deed of trust or by a substituted trustee, but disclosed to the contrary that sale had been conducted in name of original trustee and that attorney for holder had merely acted as agent for trustee in making sale. <bold>5. Dismissal — bill to set aside foreclosure — improperly</bold> <bold>dismissed — as against trustee and party at whose instance</bold> <bold>foreclosure was had.</bold> Where bill of complaint contained a prayer for general or for special relief, bill should not have been dismissed against trustee and party at whose instance foreclosure had been had, without a development of the facts as to what part of the proceeds of the sale should have been paid over by trustee to holder of deed of trust, whose lien was the only lien foreclosed, and consequently bill was dismissed as to all parties save trustee and holder of deed of trust for further development of the facts in the interest of equity and justice. Headnotes as approved by McGehee, C.J.