Volume 247 — Mississippi Reports

<bold>1. Insurance — automobile theft policy — wrongful conversion,</bold> <bold>not theft or larceny within policy.</bold> Alleged failure of automobile owner's son-in-law to return with automobile which owner had entrusted to him was not "theft" or "larceny" within family combination automobile policy. Sec. 2115, Code 1942. <bold>2. Insurance — ambiguous or uncertain provisions construed most</bold> <bold>strongly against insurer.</bold> Ambiguous or uncertain provisions of policy are to be construed most strongly against insurer. <bold>3. Insurance — automobile theft policy — plain and unambiguous.</bold> Family combination automobile policy provision binding insurer to pay for loss of owned automobile caused by theft or larceny was plain and unambiguous. Headnotes as approved by Kyle, J.

<bold>1. Amendment — liberally allowed.</bold> Amendments to pleadings are liberally allowed. Sec. 1511, Code 1942. <bold>2. Animals — offspring follows condition of mother.</bold> Offspring follows condition of mother. <bold>3. Replevin — amendment — declaration amended to include calf</bold> <bold>born to claimed cow.</bold> Plaintiff maintaining replevin action for livestock was properly permitted to amend declaration so as to claim and include a calf born to cow claimed after writ was served and declaration filed. <bold>4. Replevin — amendment to replevin — statute — pleading.</bold> Amendment to replevin statute permitting defendant to plead as provided by law does not permit defendant to file counterclaim for damages to set off or establish unrelated debts or demands. Secs. 1483.5, 2859, Code 1942. <bold>5. Replevin — amendment to replevin statute — pleading.</bold> Amendment to replevin statute requires any answer which is filed to conform with section generally relating to pleas and replications, and permits defendant in replevin action to file answer in which statutory lien or claim is pleaded, and such<page_number>Page 365</page_number> a plea may be an addition to traditional defense that replevin does not lie for impounded or distrained animals if proceeding is regular. Secs. 1475.5, 2859, Code 1942. <bold>6. Replevin — amendment to replevin statute — pleading.</bold> Facts amounting to recoupment may be alleged in answer to replevin suit under amended statute. Sec. 2859, Code 1942. <bold>7. Animals — amended replevin statute — defendant not entitled</bold> <bold>to interpose counterclaim — factual issue.</bold> Defendant, in replevin action for livestock, electing to stand upon claim that he acquired title to stock by settlement with plaintiff, and not averring, in accordance with requirements respecting counties not electing to come under statewide livestock law, that animals trespassed by breaking and entering lands enclosed by lawful fence, not complying with statutory method of enforcing lien, was not entitled to interpose counterclaim for amount spent in feeding and caring for cattle. Secs. 2859, 4870, 4871, Code 1942. <bold>8. Compromise and settlement — jury question.</bold> Whether title to two cows was given to defendant in settlement of claim for damages by defendant against owner of the cattle was question for jury. <bold>9. Compromise and settlement — burden of proof.</bold> Burden of proof to establish affirmative defense that cows were given defendant in settlement of claim for damages by defendant against plaintiff was upon defendant. Headnotes as approved by Rodgers, J.

<bold>1. Community hospitals — municipal hospital bonds — statutes —</bold> <bold>notice requirements.</bold> Amendment of notice requirements of other statutes authorizing issuance of bonds for other purposes so as to dispense with requirement of publication of full text of resolution for three weeks did not change such requirement in hospital bond statute which Legislature did not so amend. Secs. 2926.05, 7129-51, 8936-55, Code 1942. <bold>2. Community hospitals — municipal hospital bonds — notice</bold> <bold>requirements.</bold> Publication of full text of resolution declaring intent of governing authorities of municipality to issue hospital bonds for length of time and in manner required by statute was integral part of notice required of such authorities as condition precedent to exercise of power to issue bonds, and failure to cause such publication rendered proceedings invalid. Secs. 1212, 1213, 4313 et seq., 7129-51, Code 1942. Headnotes as approved by Kyle, J.

<bold>1. Appeal — Chancellor's findings — reviewable only when</bold> <bold>manifestly wrong.</bold> Chancellor's finding of facts is reviewable on appeal only when manifestly wrong. <bold>2. Labor relations — injunctions — picketing — Chancellor's</bold> <bold>findings — not manifestly wrong.</bold> Findings of Chancellor, in action to enjoin union trade council and others, that there was no dispute, controversy or grievance of any kind between employer and any of his employees, and that council had demanded that employer enter into agreement whereby he would employ only union members, and that he would coerce nonunion employees into joining unions or discharge them, were not manifestly wrong. <bold>3. Labor relations — conspiracy — abridgment of right to work —</bold> <bold>public policy.</bold> If employer with whom his employees had no grievance had complied with demands of union trade council that he would employ only members of unions through their business agents and would discharge his nonunion employees who refused to join union, he would have entered into a contract which would have constituted an illegal combination in conspiracy to deny and abridge right of his employees and others against public policy of state. Sec. 6984.5, Code 1942. <bold>4. Picketing — unlawful purpose — could be enjoined.</bold> Picketing of work site by union trade council to bring pressure on employer, who had no dispute with his employees, to sign agreement whereby he would hire only union labor through their business agents and would discharge his employees who refused to join unions was for an illegal purpose in violation of Constitution and statutes of state in reference to right of persons to work, and could be enjoined. Secs. 198-A, 273, Constitution 1890; Sec. 6984.5, Code 1942. <bold>5. Picketing — violation of public policy — may be restrained by</bold> <bold>state.</bold> If purpose of even peaceful picketing is to attain object which is in violation of public policy of state, it may be restrained by state. Amendments I, XIV, United States Constitution. Headnotes as approved by Lee, P.J.<page_number>Page 459</page_number>

<bold>1. Criminal law — withdrawal of plea of guilty — denial of</bold> <bold>permission, discretionary.</bold> Denial of permission to withdraw plea of guilty is discretionary. <bold>2. Criminal law — withdrawal of plea of guilty — abuse of</bold> <bold>judicial discretion must be shown before there is reversible</bold> <bold>error.</bold> Before refusal to permit withdrawal of plea of guilty can be reversible error, abuse of judicial discretion must be shown. <bold>3. Criminal law — withdrawal of plea of guilty — wide discretion</bold> <bold>vested in trial judge.</bold> Trial judges are vested with wide discretion in passing upon motions for withdrawal of plea of guilty. <bold>4. Criminal law — withdrawal of plea of guilty should be</bold> <bold>permitted where plea is unadvisedly given.</bold> Defendant should be permitted to withdraw plea of guilty unadvisedly given where any reasonable ground is offered for going to jury.<page_number>Page 591</page_number> <bold>5. Criminal law — refusal to permit withdrawal of plea of guilty</bold> <bold>was abuse of discretion.</bold> Refusal to permit withdrawal of plea of guilty, principally because circumstances had changed so that jury was not to be used during last week of term of court, in case wherein defendant's new counsel had obtained additional evidence and had agreement with State's attorneys for recommendation of change of plea was abuse of discretion. Headnotes as approved by Ethridge, J.

<bold>1. Wills — construction — "entire income" — included oil</bold> <bold>royalities.</bold> "Entire income" within will giving entire income from trust fund established by testator, who was a layman, to testator's brother included royalties from oil well drilled on certain lands for which testamentary trustee executed oil lease. <bold>2. Minerals — oil in place is part of real estate.</bold> Royalty on oil of one-eighth of that produced and saved from leased lands was interest in land itself and constituted payment for oil in place withdrawn from land. <bold>3. Wills — construction — use of language.</bold> Words used in will drawn by testator not familiar with the technical meaning of words are to be taken in their ordinary and common acceptance. <bold>4. Wills — construction — giving effect to all parts.</bold> Effect should be given if possible to all words, clauses, and provisions of wills. <bold>5. Wills — construction — doubtful provisions construed</bold> <bold>favorably to next of kin.</bold> Will should be construed as to doubtful provisions in manner favorable to next of kin of testator. Headnotes as approved by Gillespie, J.

<bold>1. Partnership — general construction partnership — continuance</bold> <bold>of partnership.</bold> Evidence permitted jury to find that individual defendants organized general construction partnership which continued beyond its formal termination to complete performance of contracts itemized in termination agreement, including jobs for which plaintiff's assignor had furnished sand. <bold>2. Agency — general construction partnership — evidence —</bold> <bold>corporation, agent for partnership in bidding for and</bold> <bold>executing contract for sand furnished by plaintiff's</bold> <bold>assignor.</bold> Jury was justified in finding that corporation organized by an individual defendant acted as agent for general construction<page_number>Page 864</page_number> partnership consisting of defendants in bidding for and executing construction contract for sand which sand was supplied by plaintiff's assignor. <bold>3. Agency — declaration adequately alleged agency.</bold> Declaration averring that articles of partnership authorized construction contracts to be made in name of a defendant or companies under his control, and that specified company made agreement with plaintiff's assignor pursuant to partnership agreement adequately alleged agency. <bold>4. Principal and agent — pleading — manner and sufficiency of</bold> <bold>pleading agency.</bold> Under modern pleading and practice, courts correctly permit large degree of generality in pleadings in which it is attempted to enforce contract against principal. <bold>5. Frauds, statute of — possibility of performance.</bold> Possibility of performance under purchase order and later agreements within fifteen months took contract out of operation of statute of frauds. Sec. 264(d), Code 1942. <bold>6. Frauds, statute of — sale of interest in lands —</bold> <bold>authorization of agency was in writing and met statute of</bold> <bold>frauds.</bold> Where written articles of partnership authorized a defendant or companies under his control to make construction contract in agents' names and entire conduct of parties throughout period of furnishing sand by plaintiff's assignor under contract warranted finding that original purchase order and subsequent modifications were made by corporation under his control pursuant to partnership agreement, authorization of agency was in writing for statute of frauds purposes. Sec. 264(c), Code 1942. <bold>7. Frauds, statute of — interest in land — sand as not</bold> <bold>constituting.</bold> Contract to furnish sand did not pertain to sale of lands within statute of frauds. Sec. 264(c), Code 1942. <bold>8. Novation — burden of proof.</bold> Burden of proof on issue of novation rested on defendants asserting it, and required them to show consent of contracting parties that new agreement was to have such effect. <bold>9. Novation — in order to establish.</bold> Whether novation was accomplished depended on whether parties intended it to extinguish old obligation by substituting new one for it. Headnotes as revised by Ethridge, J.<page_number>Page 865</page_number>