Cross References —

Mississippi Gaming Control Act, see §§75-76-1 et seq.

Inapplicability of this section to Mississippi Gaming Control Act, see §87-1-7.

Clubs, boats, and the like operating gaming devices as nuisances, see §95-3-25.

Criminal gambling and wagers generally, see §§97-33-1 et seq.

Special duty of officers to arrest gamblers, see §99-3-25.

Proof in gambling cases, see §99-17-25.

JUDICIAL DECISIONS

1. Construction and application.

2. Check in payment.

3. Advancement of money for gambling business.

4. Judgment on gambling contract.

5. Note or bill of exchange for gambling consideration.

6. Recovery of money paid.

1. Construction and application.

Section87-1-1, which declares “utterly void” all contracts executed and made in connection with illegal gaming activities, does not bar collection of debts arising out of legal gaming activities; thus, §87-1-1 does not apply to bingo, since charitable bingo games were exempted from any and all “illegal” definitions by §97-33-51. Frank v. Dore, 635 So. 2d 1369, 1994 Miss. LEXIS 138 (Miss. 1994).

Agreement that price of cotton actually delivered should be fixed by New York cotton quotations during specified time was not illegal. Burgson & Co. v. Williams, Smithwick & Co., 155 Miss. 351, 121 So. 817, 1929 Miss. LEXIS 257 (Miss. 1929).

The trustee in a deed of trust or assignment may enjoin a levy on the property conveyed to him, on the ground that the note on which the judgment is based was given for a gambling consideration. Smither v. Keys, 30 Miss. 179, 1855 Miss. LEXIS 83 (Miss. 1855).

Where the original contract is illegal, any subsequent contract which carries it into effect is also illegal. Adams v. Rowan, 16 Miss. 624, 1847 Miss. LEXIS 65 (Miss. 1847).

2. Check in payment.

Indorsement and transfer of check in payment of gambling debt is void and ineffective to pass title to any subsequent holder. Skinner Mfg. Co. v. Deposit Guaranty Bank, 160 Miss. 815, 133 So. 660, 1931 Miss. LEXIS 166 (Miss. 1931).

Bank paying check indorsed in payment of gambling debt, resulting in loss to bank when maker stopped payment, held without remedy against maker. Skinner Mfg. Co. v. Deposit Guaranty Bank, 160 Miss. 815, 133 So. 660, 1931 Miss. LEXIS 166 (Miss. 1931).

3. Advancement of money for gambling business.

One who advances money to another to be used in a gambling business, and who is to be repaid only from the proceeds of the business, cannot enforce payment, and a note given after the close of business for money so advanced is without valid consideration. Virden v. Murphey, 78 Miss. 515, 28 So. 851, 1900 Miss. LEXIS 108 (Miss. 1900).

4. Judgment on gambling contract.

A suit on a judgment rendered upon a note given for gambling contract can be defeated by showing the illegality of the original transaction. Campbell v. New Orleans Nat'l Bank, 74 Miss. 526, 21 So. 400, 1896 Miss. LEXIS 177 (Miss. 1896).

A judgment obtained upon a gambling contract is void by statute, and it will make no difference that the note on which the judgment is based passed for value into the hands of an innocent purchaser. Lucas v. Waul, 20 Miss. 157, 1849 Miss. LEXIS 16 (Miss. 1849); Martin v. Terrell, 20 Miss. 571, 1849 Miss. LEXIS 90 (Miss. 1849); Smither v. Keys, 30 Miss. 179, 1855 Miss. LEXIS 83 (Miss. 1855).

5. Note or bill of exchange for gambling consideration.

One who advances money to another to be used in a gambling business, and who is to be repaid only from the proceeds of the business, cannot enforce payment, and a note given after the close of business for money so advanced is without valid consideration. Virden v. Murphey, 78 Miss. 515, 28 So. 851, 1900 Miss. LEXIS 108 (Miss. 1900).

A bill of exchange or promissory note is void where the consideration, in whole or in part, is for money or other valuable thing won at any game or on a horse race, etc. Crawford v. Storms & Brooks, 41 Miss. 540, 1867 Miss. LEXIS 28 (Miss. 1867).

The maker of a note, payable to a named individual or bearer, when sued by another than the party named as payee, may successfully defend by showing that the plaintiff won the note in a bet with the payee. Holman v. Ringo, 36 Miss. 690, 1859 Miss. LEXIS 85 (Miss. 1859).

A note given for a gambling consideration may be declared void either at law or in a court of equity. McAuley's Adm'r v. Mardis, 1 Miss. 307, 1828 Miss. LEXIS 1 (Miss. 1828).

6. Recovery of money paid.

Money paid by mistake is recoverable and it is no defense to a suit therefor that the contract out of which the transaction sprung was an illegal one where resort to the contract is unnecessary to prove the plaintiff’s case. Adler v. C. J. Searles & Co., 86 Miss. 406, 38 So. 209, 1905 Miss. LEXIS 11 (Miss. 1905).

Judgments on any wager whatever are void under this section, and money lost on any wager can be recovered back by the loser. Campbell v. New Orleans Nat'l Bank, 74 Miss. 526, 21 So. 400, 1896 Miss. LEXIS 177 (Miss. 1896).

RESEARCH REFERENCES

ALR.

Action to recover money or property lost and paid through gambling as affected by statute of limitations. 22 A.L.R.2d 1390.

Criminal conspiracies as to gambling. 91 A.L.R.2d 1148.

Construction and application of state or municipal enactments relating to policy or numbers games. 70 A.L.R.3d 897.

Validity, construction, and application of statutes or ordinances involved in prosecutions for transmission of wagers or wagering information related to bookmaking. 53 A.L.R.4th 801.

Private contests and lotteries: entrants’ rights and remedies. 64 A.L.R.4th 1021.

Am. Jur.

17A Am. Jur. 2d, Contracts § 322.

38 Am. Jur. 2d, Gambling §§ 129 et seq., 154 et seq.

7 Am. Jur. Pl & Pr Forms (Rev) Contracts, Forms 8, 9 (answers alleging as defenses that contract is void as against public policy, and for illegality).

CJS.

38 C.J.S., Gaming §§ 3, 4 et seq.

Cross References —

Mississippi Gaming Control Act, see §§75-76-1 et seq.

Inapplicability of this section to Mississippi Gaming Control Act, see §87-1-7.

JUDICIAL DECISIONS

1. In general.

Where a bank knowingly advanced money for use in dealing in futures at a time when such contracts were unlawful, wife of borrower may have note and mortgage executed by herself and husband on their homestead and her separate property, to secure same, cancelled, whereupon the property would vest in herself and children; in such case it is immaterial that borrower had right to buy cotton futures by mail or wire from brokers in another state. Cohn v. Brinson, 112 Miss. 348, 73 So. 59, 1916 Miss. LEXIS 118 (Miss. 1916).

Amendment Notes —

The 2005 amendment, 5th Ex Sess, ch. 16, added “including the Mississippi Sound, St. Louis Bay, Biloxi Bay and Pascagoula Bay” to the end of (a); added (b); and redesignated former (b) and (c) as present (c) and (d).

Cross References —

Elected or appointed official not to derive any pecuniary benefit as result of duties under this section, and penalties therefor, see §25-4-119.

Licensing and regulation of cruise vessels, see §27-109-1 et seq.

Mississippi Gaming Control Act, see §§75-76-1 et seq.

Inapplicability of this section to Mississippi Gaming Control Act, see §87-1-7.

Forfeiture of moneys exhibited for purpose of betting, see §97-33-17.

RESEARCH REFERENCES

ALR.

Law of forum against wagering transaction as precluding enforcement of claim based on gambling transaction valid under applicable foreign law. 71 A.L.R.3d 178.

Private contests and lotteries: entrant’s rights and remedies. 64 A.L.R.4th 1021.

Validity, construction, and application of statute or ordinance prohibiting or regulating use of messenger services to place wagers in pari-mutuel pool. 78 A.L.R.4th 483.

Recovery in tort for wrongful interference with chance to win game, sporting event, or contest. 85 A.L.R.4th 1048.

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 154, 159-161.

12 Am. Jur. Pl & Pr Forms (Rev) Gambling, Forms 11-14 (complaint, or declaration to recover gambling losses).

Cross References —

Regulation of transfer of investment securities under the Uniform Commercial Code, see §75-8-101 et seq.

Cross References —

“Bucket shop” defined, see §87-1-21.

JUDICIAL DECISIONS

1. In general.

Forward contract for future delivery of cotton was not void as being a futures contract where there was provision for delivery by the seller of cotton sold. Austin v. Montgomery, 336 So. 2d 745, 1976 Miss. LEXIS 1523 (Miss. 1976).

This section does not make an arbitrary distinction between brokerage houses which have connections with commodity exchanges and those which do not, and consequently does not violate due process. Kohlmeyer & Co. v. Rotwein, 186 So. 2d 768, 1966 Miss. LEXIS 1331 (Miss.), cert. denied, 385 U.S. 971, 87 S. Ct. 508, 17 L. Ed. 2d 435, 1966 U.S. LEXIS 106 (U.S. 1966).

This section does not violate the public policy of Mississippi against gambling. Kohlmeyer & Co. v. Rotwein, 186 So. 2d 768, 1966 Miss. LEXIS 1331 (Miss.), cert. denied, 385 U.S. 971, 87 S. Ct. 508, 17 L. Ed. 2d 435, 1966 U.S. LEXIS 106 (U.S. 1966).

The fact that the State of Mississippi does not have the power to control the rules and regulations adopted by commodity exchanges beyond its borders does not make this section an unconstitutional delegation of legislative power. Kohlmeyer & Co. v. Rotwein, 186 So. 2d 768, 1966 Miss. LEXIS 1331 (Miss.), cert. denied, 385 U.S. 971, 87 S. Ct. 508, 17 L. Ed. 2d 435, 1966 U.S. LEXIS 106 (U.S. 1966).

In brokers’ suit to recover money paid client under mistaken belief that margin of client was greater than needed, evidence as to whether contract between client and broker was gambling contract held for jury, even though contract had appearance of legality, and stated that actual delivery of commodities bought or sold was contemplated. Knox v. Clark, 177 Miss. 195, 171 So. 340, 1936 Miss. LEXIS 278 (Miss. 1936).

Intention of both parties to contract for future delivery that transaction was to be closed by settlement of difference between price when made and price at time of closing may be shown by what parties said and did in respect of contract. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Where there is substantial evidence that will support inference that both parties did not intend actual delivery under contract for future delivery, question is for jury. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Where evidence of seller of corn for future delivery on board of trade tended to show that neither seller nor brokers intended actual delivery but that cash settlement of difference between contract price and market price at time fixed for delivery should be made, direction of verdict for brokers was error. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Notwithstanding statute relating to contracts for future delivery of commodities according to rules of boards of trade or exchanges, formal contract is not conclusive where other evidence discloses that it was used as a means of dealing in futures. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 37, 144, 147-153.

JUDICIAL DECISIONS

1. In general.

Where the legislature passed a law authorizing brokers to transmit for execution contracts for sale for future delivery, the legislature did not intend to change the law providing that any contract of sale for future delivery of cotton made without any actual bona fide execution in carrying out such contract shall be void and unenforceable. Laird, Bissell & Meeds v. Capps, 224 Miss. 361, 80 So. 2d 49, 1955 Miss. LEXIS 500 (Miss. 1955).

Sales of cotton futures, where there was no contemplation of actual delivery of cotton, were not valid despite the statute which authorized brokers to transmit for execution contracts for sale for future delivery. Laird, Bissell & Meeds v. Capps, 224 Miss. 361, 80 So. 2d 49, 1955 Miss. LEXIS 500 (Miss. 1955).

A hedging contract contemplated by this section is void and can furnish no foundation upon which to predicate a civil claim for damages. Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So. 2d 491, 1944 Miss. LEXIS 280 (Miss. 1944).

Telegraph company is not liable for failure to send telegram to firm’s officer informing of sale of cotton by firm, delivery to be made at future date, for sole purpose of having officer make hedging contract with firm’s brokers on New York exchange to protect firm against any rise in price that the firm would have to pay for the cotton, since reliance on the holding contract, which is void under the statute, is essential to plaintiffs’ case. Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So. 2d 491, 1944 Miss. LEXIS 280 (Miss. 1944).

In brokers’ suit to recover money paid client under mistaken belief that margin of client was greater than needed, evidence as to whether contract between client and broker was gambling contract held for jury, even though contract had appearance of legality, and stated that actual delivery of commodities bought or sold was contemplated. Knox v. Clark, 177 Miss. 195, 171 So. 340, 1936 Miss. LEXIS 278 (Miss. 1936).

Notwithstanding statute relating to contracts for future delivery of commodities according to rules of boards of trade or exchanges, formal contract is not conclusive where other evidence discloses that it was used as a means of dealing in futures. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Intention of both parties to contract for future delivery that transaction was to be closed by settlement of difference between price when made and price at time of closing may be shown by what parties said and did in respect of contract. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Where there is substantial evidence that will support inference that both parties did not intend actual delivery under contract for future delivery, question is for jury. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Where evidence of seller of corn for future delivery on board of trade tended to show that neither seller nor brokers intended actual delivery but that cash settlement of difference between contract price and market price at time fixed for delivery should be made, direction of verdict for brokers was error. Alamaris v. John F. Clark & Co., 166 Miss. 122, 145 So. 893, 1933 Miss. LEXIS 329 (Miss. 1933).

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any felony violation, see §99-19-73.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

Cross References —

Witness in gaming case being required to testify although it may incriminate him, see §99-17-27.

RESEARCH REFERENCES

Lawyers’ Edition.

Adequacy, under Federal Constitution, of immunity granted in lieu of privilege against self-incrimination-Supreme court cases. 32 L. Ed. 2d 869.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

The sale of cotton on call did not constitute gambling in futures, where the cotton thus sold contemplated actual delivery and not a settlement alone on the market quotations, although it would be a gambling transaction if the real intent of the parties was simply to speculate on the rise and fall of prices, and the goods were not to be delivered. Kiersky v. Hyman Mercantile Co., 192 Miss. 195, 4 So. 2d 881, 198 So. 574 (Miss. 1941).

Public policy of state is to condemn “dealing in futures.” Ascher & Baxter v. Edward Moyse & Co., 101 Miss. 36, 57 So. 299, 1911 Miss. LEXIS 96 (Miss. 1911).

Mississippi courts cannot deny to a judgment of a Missouri court, based upon an award in arbitration the full faith and credit secured by U. S. Const. Art. 4 § 1, to the judgments of sister states, simply because the original controversy grew out of a gambling transaction in futures in Mississippi, a misdemeanor under Mississippi law, which further provide that contracts of that character shall not be enforced by any court. Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (U.S. 1908).

The Mississippi courts are not without jurisdiction of causes of action arising out of gambling transactions in futures because of the provision of Miss. Code 1892 § 2117, that contracts of that character “shall not be enforced by any court,” since such statute only lays down a rule of decision. Fauntleroy v. Lum, 210 U.S. 230, 28 S. Ct. 641, 52 L. Ed. 1039, 1908 U.S. LEXIS 1506 (U.S. 1908).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 37, 144 et seq., 165, 166.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.

JUDICIAL DECISIONS

1. In general.

Note in payment of debt under futures contract cannot be enforced by innocent transferee for value. Gray v. Robinson, 95 Miss. 1, 48 So. 226, 1909 Miss. LEXIS 198 (Miss. 1909).

A note given to a firm of brokers to close a balance advanced by them on behalf of the maker in dealings they had conducted for him in wheat futures on the board of trade of another state is void. Nixon v. Seal, 27 So. 875 (Miss. 1900).

RESEARCH REFERENCES

Am. Jur.

38 Am. Jur. 2d, Gambling §§ 37, 144 et seq., 165, 166.

Cross References —

Invalidity of power of attorney for confessing judgment, see §11-7-187.

Signing of commercial paper by authorized representative, see §75-3-403.

JUDICIAL DECISIONS

1. In general.

Chancery Court has jurisdiction to hear and adjudicate controversy involving validity and effect of power of attorney, which has not been acknowledged and recorded in manner of conveyance of land, with respect to conveyance of real property situated in Republic of Greece where all parties reside in Mississippi and have been effectively subjected to in personam jurisdiction of Chancery Court; court may enter personal judgment, even though controlling substantive law is that of Greece; final adjudication would effectively bind parties in Mississippi and presumably in all other states even though adjudication may not be enforceable in Greece as matter of right and maybe not even as matter of comity. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Parties to controversy involving validity and effect of power of attorney which has not been acknowledged and recorded in manner of conveyance of land with respect to conveyance of real property situated in Greece may stipulate to application and enforcement of Mississippi rules of law, rather than otherwise applicable Greek law; if parties do so, trial judge may proceed to adjudge all issues according to Mississippi law and enter final judgment which, subject to appeal, would be enforceable against parties in courts of Mississippi, even though, in Republic of Greece, judgment may not be enforceable. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Power of attorney need not be acknowledged or recorded in manner of instrument of conveyance of interest in land in order to authorize attorney in fact to make contracts on behalf of principal and to deal with personal property in Mississippi in which principal holds interest. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Before one empowered as attorney in fact may execute and deliver valid instrument of conveyance of interest in land in Mississippi prior in right to interests of (1) subsequent purchasers for value without notice or (2) subsequent judgment lien creditors, written power of attorney must be acknowledged and recorded in conformity with requirements generally applicable to instruments of conveyance of interests in land. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Before court may resolve question of whether power of attorney which has not been acknowledged and recorded in manner provided for instruments of conveyance of interests in land is valid and enforceable with respect to real property located in Republic of Greece, Greek law must be consulted to determine whether there is conflict between laws of Mississippi and those of Greece with respect to real property and powers of attorney. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

RESEARCH REFERENCES

ALR.

What constitutes power coupled with interest within rule as to termination of agency. 28 A.L.R.2d 1243.

Am. Jur.

3 Am. Jur. 2d, Agency §§ 8, 21.

1B Am. Jur. Legal Forms 2d, Agency §§ 14:99 et seq. (powers of attorney).

CJS.

2A C.J.S., Agency § 24.

Cross References —

Necessity that land conveyances be in writing, see §89-1-3.

JUDICIAL DECISIONS

1. In general.

Where a deed was first conveyed to a grandson by the decedent, then conveyed back to the estate, then conveyed to the grandson again by the executrix, acting under a purported power of attorney, and when the executrix sought to set aside the deed after the grandson died, and the property was to go to the grandson’s surviving wife, based on equity, the deed was not void ab initio when signed by the executrix even though letters of attorney were never recorded. Estate of Dykes v. Estate of Williams, 864 So. 2d 926, 2003 Miss. LEXIS 759 (Miss. 2003).

Before court may resolve question of whether power of attorney which has not been acknowledged and recorded in manner provided for instruments of conveyance of interests in land is valid and enforceable with respect to real property located in Republic of Greece, Greek law must be consulted to determine whether there is conflict between laws of Mississippi and those of Greece with respect to real property and powers of attorney. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Chancery Court has jurisdiction to hear and adjudicate controversy involving validity and effect of power of attorney, which has not been acknowledged and recorded in manner of conveyance of land, with respect to conveyance of real property situated in Republic of Greece where all parties reside in Mississippi and have been effectively subjected to in personam jurisdiction of Chancery Court; court may enter personal judgment, even though controlling substantive law is that of Greece; final adjudication would effectively bind parties in Mississippi and presumably in all other states even though adjudication may not be enforceable in Greece as matter of right and maybe not even as matter of comity. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Parties to controversy involving validity and effect of power of attorney which has not been acknowledged and recorded in manner of conveyance of land with respect to conveyance of real property situated in Greece may stipulate to application and enforcement of Mississippi rules of law, rather than otherwise applicable to Greek law; if parties do so, trial judge may proceed to adjudge all issues according to Mississippi law and enter final judgment which, subject to appeal, would no doubt be enforceable against parties in courts of Mississippi, even though, in Republic of Greece, judgment may not be enforceable. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

Power of attorney need not be acknowledged or recorded in manner of instrument of conveyance of interest in land in order to authorize attorney in fact to make contracts on behalf of principal and to deal with personal property in Mississippi in which principal holds interest; however, before one empowered as attorney in fact may execute and deliver valid instrument of conveyance of interest in land in Mississippi prior in right to interests of (1) subsequent purchasers for value without notice or (2) subsequent judgment lien creditors, written power of attorney must be acknowledged and recorded in conformity with requirements generally applicable to instruments of conveyance of interests in land. Kountouris v. Varvaris, 476 So. 2d 599, 1985 Miss. LEXIS 2245 (Miss. 1985).

This section has no application to contracts by an attorney in fact for the making of a lease. Hytken v. Bianca, 186 Miss. 323, 186 So. 624, 188 So. 311, 1939 Miss. LEXIS 199 (Miss. 1939).

The attorney in fact of the beneficiary of a deed of trust cannot appoint a substituted trustee where the deed provides for the appointment “by the beneficiary or any holder of the notes secured or their legal representatives.” Allen v. Alliance Trust Co., 84 Miss. 319, 36 So. 285, 1904 Miss. LEXIS 40 (Miss. 1904).

It is always a question of intention whether or not an instrument be an execution of a power. Yates v. Clark, 56 Miss. 212, 1878 Miss. LEXIS 61 (Miss. 1878).

RESEARCH REFERENCES

Am. Jur.

1B Am. Jur. Pl & Pr Forms (Rev), Agency, Form 312 (complaint, petition, or declaration-by devisees of principal-for recovery of property fraudulently conveyed by attorney in fact-for damages).

1B Am. Jur. Legal Forms 2d, Agency §§ 14:75 et seq. (powers of attorney).

Editor’s Notes —

Laws of 1994, ch. 336, §§ 9 and 10 provide:

“SECTION 9. This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

“SECTION 10. This act may be cited as the “Uniform Durable Power of Attorney Act.”

Laws of 1994, ch. 336, amended this section and Section 87-3-15, added Sections 87-3-101 through 87-3-113, and repealed Section 87-3-13.

Amendment Notes —

The 1999 amendment added (2) and (3).

The 2017 amendment added “including the authority to exercise…Chapter 23, Title 91” at the end of (2).

Federal Aspects—

Sections 170(c) and 2522(a) of the Internal Revenue Code, see 26 USCS §§ 170(c) and 2522(a), respectively.

JUDICIAL DECISIONS

1. In general.

2. Arbitration agreements.

3. Violation.

1. In general.

When an attorney-in-fact is prohibited from giving himself gifts from the principal’s property, extrinsic evidence of the principal’s intent to allow such gifts is not admissible, and while nothing prohibits a principal from expressly authorizing such gifts in writing, the attorney-in-fact cannot rely on an alleged oral authorization where the power of attorney itself expressly prohibits such gifts; the decedent’s alleged oral statements to her relative could not negate the express terms of her power of attorney that prohibited the relative from recognizing any personal gain, and any such transaction was void ab initio. Swank v. Covington (In re Estate of Hemphill), 186 So.3d 920, 2016 Miss. App. LEXIS 60 (Miss. Ct. App. 2016).

2. Arbitration agreements.

Where a son signed an arbitration agreement on the son’s mother’s behalf when the mother was admitted to a nursing home, the son brought a wrongful death action against defendants, and defendants sought to compel arbitration, the son lacked actual authority to sign the arbitration agreement on the mother’s behalf because no power of attorney was executed, and the Mississippi Supreme Court would regard the informal proof of authority in this case to be clearly insufficient to establish an express agency under Mississippi law. Gross v. GGNSC Southaven, LLC, 83 F. Supp. 3d 691, 2015 U.S. Dist. LEXIS 14071 (N.D. Miss. 2015), vacated, 817 F.3d 169, 2016 U.S. App. LEXIS 4749 (5th Cir. Miss. 2016).

Trial court did not err in failing to enforce an arbitration provision contained within an admission agreement entered into between a nursing home and a resident’s daughter who assertedly operated under a power of attorney because only an unauthenticated copy of the power of attorney appeared in the record. Miss. Care Ctr. of Greenville, LLC v. Hinyub, 975 So. 2d 211, 2008 Miss. LEXIS 16 (Miss. 2008).

The joint owner of three certificates of deposit was entitled to them by right of survivorship where the decedent’s attorney in fact under a power of attorney placed the joint owner’s name on the certificates of deposit, the attorney in fact and the joint owner never shared a confidential relationship while the attorney in fact acted for the decedent, and there was no evidence that the attorney in fact acted in bad faith. In re Dunn v. Reilly, 784 So. 2d 935, 2001 Miss. LEXIS 126 (Miss. 2001).

3. Violation.

Constructive trust was properly imposed on funds a daughter obtained from her deceased father’s accounts as the father’s attorney-in-fact because there was no history of the father making such gifts. Kilpatrick v. Jarvis (in re Estate of Jarvis), — So.3d —, 2017 Miss. App. LEXIS 378 (Miss. Ct. App. June 27, 2017).

Relative violated the power of attorney (POA) by making herself a joint owner of certain funds, and she personally benefitted from another transaction, and thus the estate was entitled to recover these certificate of deposit; however, as to another, the decedent had made the relative an owner of the account, and thus the relative did not personally gain from purchasing the new certificate of deposit and she only merely moved funds, and thus the funds attributable to those certificates of deposit were not tainted by any violation of the POA. Swank v. Covington (In re Estate of Hemphill), 186 So.3d 920, 2016 Miss. App. LEXIS 60 (Miss. Ct. App. 2016).

RESEARCH REFERENCES

Am. Jur.

1B Am. Jur. Legal Forms 2d, Agency § 14:103 (power of attorney to sell, convey, and receive purchase price for realty).

Editor’s Notes —

Former §87-3-13 was entitled: Continuance of power; disability or incompetence of principal.

Editor’s Notes —

Laws of 1994, ch. 336, §§ 9 and 10 provide:

“SECTION 9. This act shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

“SECTION 10. This act may be cited as the “Uniform Durable Power of Attorney Act.”

Laws of 1994, ch. 336, amended this section and Section 87-3-5, added Sections 87-3-101 through 87-3-113, and repealed Section 87-3-13.

Editor’s Notes —

Laws of 1994, ch. 336, § 10 provides:

“SECTION 10. This act may be cited as the “Uniform Durable Power of Attorney Act.”

Laws of 1994, ch. 336, added Code Sections 87-3-101 through 87-3-113, amended Sections 87-3-5 and 87-3-15, and repealed Section 87-3-13.

Comparable Laws from other States —

California: Cal Prob Code § 4000 et seq.

Colorado: C.R.S. 15-14-701 et seq.

Hawaii: HRS § 551D-1 et seq.

Idaho: Idaho Code §15-12-101 et seq.

North Dakota: N.D. Cent. Code, §§ 30.1-30-01 et seq.

Oklahoma: 58 Okl. St. § 1071 et seq.

Tennessee: Tenn. Code Ann., §§34-6-101 et seq.

Virgin Islands: 15 V.I.C. § 1261 et seq.

West Virginia: W. Va. Code §39-4-1 et seq.

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 36, 53, 55.

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 36, 53, 55.

JUDICIAL DECISIONS

1. Contingency fee contracts.

Where the attorneys in fact entered into a contract of employment with an attorney to pursue a personal injury claim on the ward’s behalf, and the attorney, primarily out of caution, later submitted a proposed settlement to the chancery court for approval, the chancery court abused its discretion in reducing the lawyer’s fee from a 40 percent contingency fee as provided in the contract to a 33 1/3 percent contingency fee. The contract was not one entered into pursuant to a traditional probate matter and it was not a contract within the parameters of Miss. Unif. Ch. Ct. R. 6.12; the practical effect of the chancellor’s decision, upheld by the court of appeals, was a judicial abrogation of the provisions of the Uniform Durable Power of Attorney Act found in Miss. Code Ann. §§87-3-101 through87-3-113 and it also constituted a failure to uphold Miss. Const. art. 3, § 16 and U.S. Const. Art. I, § 10, cl. 1, which prohibited the impairment of obligations of contracts. In re Savell v. Renfroe, 876 So. 2d 308, 2004 Miss. LEXIS 800 (Miss. 2004).

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 36, 53, 55.

Amendment Notes —

The 2017 amendment added (3).

JUDICIAL DECISIONS

1. Construction.

2. Contingency fee contracts.

1. Construction.

Under Miss. Code Ann. §87-3-109(1), the attorney in fact and the fiduciary are clearly set out as two separate entities. Also, the statute states “if” a trial court appoints a conservator, etc., thus clearly revealing that such an appointment is not required. In re Savell v. Renfroe, 876 So. 2d 308, 2004 Miss. LEXIS 800 (Miss. 2004).

2. Contingency fee contracts.

Where the attorneys in fact entered into a contract of employment with an attorney to pursue a personal injury claim on the ward’s behalf, and the attorney, primarily out of caution, later submitted a proposed settlement to the chancery court for approval, the chancery court abused its discretion in reducing the lawyer’s fee from a 40 percent contingency fee as provided in the contract to a 33 1/3 percent contingency fee. The contract was not one entered into pursuant to a traditional probate matter and it was not a contract within the parameters of Miss. Unif. Ch. Ct. R. 6.12; the practical effect of the chancellor’s decision, upheld by the court of appeals, was a judicial abrogation of the provisions of the Uniform Durable Power of Attorney Act found in Miss. Code Ann. §§87-3-101 through87-3-113 and it also constituted a failure to uphold Miss. Const. art. 3, § 16 and U.S. Const. Art. I, § 10, cl. 1, which prohibited the impairment of obligations of contracts. In re Savell v. Renfroe, 876 So. 2d 308, 2004 Miss. LEXIS 800 (Miss. 2004).

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 34, 55.

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 52, 53.

RESEARCH REFERENCES

Am. Jur.

3 Am. Jur. 2d, Agency §§ 26, 36, 53, 55.

CJS.

3 C.J.S., Agency § 512.

Cross References —

Final judgment upon garnishment against surety or accommodation indorser, see §11-35-55.

Order of liability of indorsers of commercial paper, see §75-3-414.

Suits on indorsed bills and notes, see §75-13-3.

Effect of releasing one or more joint debtors, see §85-5-1.

JUDICIAL DECISIONS

1. Construction and application.

2. Sufficiency of notice.

3. Waiver of right to discharge from liability.

1. Construction and application.

Where a contract under which a landowner agreed to be obligated to a lender for the debts of his tenant, was one of guaranty rather than suretyship, and further provided that the lender was not bound to exhaust its recourse against the tenant before being entitled to payment from the landowner, the landowner’s demand that the lender proceed against the tenant did not affect its liability for the unpaid loans. Brent v. National Bank of Commerce of Columbus, 258 So. 2d 430, 1972 Miss. LEXIS 1501 (Miss. 1972).

This provision must be strictly construed. Standard Acci. Ins. Co. v. Standard Oil Co., 242 Miss. 11, 133 So. 2d 539, 1961 Miss. LEXIS 523 (Miss. 1961).

This section is not applicable to release a surety on a public construction bond from liability to a subcontractor’s supplier. Standard Acci. Ins. Co. v. Standard Oil Co., 242 Miss. 11, 133 So. 2d 539, 1961 Miss. LEXIS 523 (Miss. 1961).

Where mortgagee looked to others than mortgagors for payment of indebtedness for ten years after conveyance by mortgagors to purchasers who assumed indebtedness, gave no notice to mortgagor of invalid foreclosure proceeding, and allowed principal and interest to remain in default for several years without suit, mortgagor held not discharged as surety for her grantees, because of mortgagee’s want of diligence, especially where mortgagor made no attempt to put creditor in default under statute. North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135, 1937 Miss. LEXIS 175 (Miss. 1937).

Mere want of diligence, indulgence, delay not amounting to bar of statute of limitations, or passiveness of creditor towards principal debtor, does not discharge surety. North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135, 1937 Miss. LEXIS 175 (Miss. 1937).

Indulgences granted to maker of note by holder held not to relieve one who signed note as surety and accommodation indorser from liability on note, where indulgences were not for definite time or supported by consideration. Love v. Clark, 171 Miss. 758, 158 So. 484, 1935 Miss. LEXIS 12 (Miss. 1935).

Suit by nonresident in federal court having jurisdiction was sufficient compliance with statute requiring proceedings after notice in writing by surety. Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83, 1930 Miss. LEXIS 289 (Miss. 1930).

That suit instituted by creditor after written notice by surety had not progressed to judgment did not establish that it was not prosecuted to effect. Mississippi Valley Trust Co. v. Brewer, 157 Miss. 890, 128 So. 83, 1930 Miss. LEXIS 289 (Miss. 1930).

This section is not repealed by the Negotiable Instruments Act. First Nat'l Bank v. Rau, 146 Miss. 520, 112 So. 688, 1927 Miss. LEXIS 264 (Miss. 1927); North American Life Ins. Co. v. Smith, 178 Miss. 238, 172 So. 135, 1937 Miss. LEXIS 175 (Miss. 1937).

Bank does not owe surety on note duty to apply or credit amount principal may have on deposit at or after maturity of the note to the payment thereof. Moreland v. People's Bank of Waynesboro, 114 Miss. 203, 74 So. 828, 1917 Miss. LEXIS 22 (Miss. 1917).

Where the principal in consideration of a trust deed to secure the indebtedness granted an extension of time for a definite period, the sureties were relieved. Miller v. Lewis, 103 Miss. 598, 60 So. 654, 1912 Miss. LEXIS 204 (Miss. 1912).

A judgment discharging a surety by reason of his release, under this section, if such judgment is not appealed from, will bar a proceeding for contribution by a co-surety held liable in the same judgment, and the discharge of one surety does not discharge his co-sureties. Ruff v. Montgomery, 83 Miss. 185, 36 So. 67, 1903 Miss. LEXIS 31 (Miss. 1903).

A plea setting up a discharge under the statute, which does not show compliance with it, is defective. Keirn v. Andrews, 59 Miss. 39, 1881 Miss. LEXIS 70 (Miss. 1881).

The statute applies to all the modes and instruments by which suretyship may arise, and the surety’s discharge under the statute is as effectual in a court of law as in equity. Smith v. Clopton, 48 Miss. 66, 1873 Miss. LEXIS 36 (Miss. 1873).

2. Sufficiency of notice.

Letter held to be sufficient notice. Bishop v. Currie-McGraw Co., 133 Miss. 517, 97 So. 886, 1923 Miss. LEXIS 164 (Miss. 1923).

Notice such as will discharge a surety must be clear and explicit, and must amount to a demand that the creditor commence and prosecute legal proceedings against the principal debtor. Graham v. Pepple, 132 Miss. 612, 97 So. 180, 1923 Miss. LEXIS 95 (Miss. 1923).

Notice given by one surety in his own behalf will not inure to the benefit of his co-sureties, and failing to sue after such notice will not discharge such co-sureties. Ramey v. Purvis, 38 Miss. 499, 1860 Miss. LEXIS 21 (Miss. 1860).

3. Waiver of right to discharge from liability.

Where a tenant’s past due notes were renewed at the request of the landowner who was obligated under a contract of guaranty for the debts of the tenant, and the contract of guaranty authorized the lender to grant an extension of the tenant’s debts without notice to the landowner, and provided that the discontinuance of the guaranty would not affect the guarantor’s liability on existing debts, the lender’s execution of an FHA nondisturbance agreement not to repossess or in any way disturb the property of the tenant until a specified date, did not discharge the landowner’s liability under the contract of guaranty. Brent v. National Bank of Commerce of Columbus, 258 So. 2d 430, 1972 Miss. LEXIS 1501 (Miss. 1972).

Benefits under statute discharging sureties unless creditor brings suit within specified time after statutory notice held not waived by contract whereby accommodation sureties waived notice of time extension and also waived necessity for creditor first to exhaust remedies against principal. Warren v. W. T. Raleigh Co., 174 Miss. 603, 165 So. 436, 1936 Miss. LEXIS 207 (Miss. 1936).

Stipulation over accommodation indorser’s signature held not waiver of right to discharge from liability on creditor’s failure to commence proceedings after notice. First Nat'l Bank v. Rau, 146 Miss. 520, 112 So. 688, 1927 Miss. LEXIS 264 (Miss. 1927).

RESEARCH REFERENCES

ALR.

Liability of surety on infant’s contract or obligation, where contract is disaffirmed by infant. 44 A.L.R.3d 1417.

Creditor’s duty of disclosure to surety or guarantor after inception of suretyship or guaranty. 63 A.L.R.4th 678.

Am. Jur.

74 Am. Jur. 2d, Suretyship §§ 59 et seq.

23 Am. Jur. Pl & Pr Forms (Rev) Suretyship Form 65 (answer alleging as defense of surety failure to proceed against principle).

CJS.

72 C.J.S., Principal and Surety §§ 215, 216 et seq.

Cross References —

Bonds securing public construction contracts and suits thereon, see §§31-5-51 et seq.

Remedy of party paying execution, see §75-13-9.

RESEARCH REFERENCES

Am. Jur.

74 Am. Jur. 2d, Suretyship §§ 139 et seq.

Cross References —

Legislature’s power regarding official bonds, see MS Const Art. 4, § 82.

Bonds securing public construction contracts and suits thereon, see §§31-5-51 et seq.

Surety companies generally, see §§83-27-1 et seq.

JUDICIAL DECISIONS

1. In general.

In addition to paying a premium, the recipient of an indemnity bond must also prove to the surety company that he has adequate assets to permit recovery of some portion of the loss if the bond is ever called upon since a surety may seek reimbursement from the principal after payment on a bond. First Southwest Corp. v. Lampton, 724 So. 2d 988, 1998 Miss. App. LEXIS 1060 (Miss. Ct. App. 1998).

General contractor would be granted relief from stay to assert setoff against prepetition obligations to debtor where general contractor was obliged to pay debtor’s materialmen on project. In re E & D Electric Co., 68 B.R. 3, 1986 Bankr. LEXIS 5907 (Bankr. S.D. Miss. 1986).

A surety’s right of subrogation is unaffected by the filing requirements of the Uniform Commercial Code, since the assignment in a bond application is in aid of an equitable right but does not create that right, and the rights of the surety to subrogation for its losses are founded upon equitable principles independent of any assignment of contract proceeds in the application of the contractor. Travelers Indem. Co. v. Clark, 254 So. 2d 741, 1971 Miss. LEXIS 1270 (Miss. 1971).

A surety’s right to subrogation for amounts paid to materialmen and laborers was not limited to the 10 percent retainage provided for in the construction contract, the contractor’s performance of which was guaranteed by the surety, but instead whatever funds were in the hands of the contractor’s debtors under such contract at the time of the appointment of a receiver for the contractor should be made available to the surety to the extent necessary to indemnify the surety for losses sustained on the construction project involved. Travelers Indem. Co. v. Clark, 254 So. 2d 741, 1971 Miss. LEXIS 1270 (Miss. 1971).

In an action against a municipal policeman and the surety upon his official bond for assault upon the plaintiff by the policeman, the trial court did not err in refusing to instruct that the surety company would not be liable for anything unless the policeman was first liable and, if the surety was required to pay any part of the judgment, then the individual defendant would be obligated to reimburse the surety for that amount. Vanderslice v. Shoemake, 233 Miss. 523, 102 So. 2d 804, 1958 Miss. LEXIS 411 (Miss. 1958).

A surety on a bond, given in pursuance of this statute, is not entitled to claim against the receiver of the insolvent bank the amount which it paid out as interest and attorney’s fees in resisting the state’s claim on the bond for the amount of the deposit. Union Indem. Co. v. Stevens, 57 F.2d 839, 1932 U.S. App. LEXIS 4075 (5th Cir. Miss. 1932).

Evidence tending to negative dishonesty or corrupt motives held erroneously excluded in surety’s action to recover sum paid on indemnity bond. Seelbinder v. American Surety Co., 155 Miss. 21, 119 So. 357, 1928 Miss. LEXIS 391 (Miss. 1928).

RESEARCH REFERENCES

Am. Jur.

74 Am. Jur. 2d, Suretyship §§ 139 et seq.

23 Am. Jur. Pl & Pr Forms (Rev) Suretyship Forms 4-10 (complaint, petition, or declaration by surety seeking reimbursement from principal).

JUDICIAL DECISIONS

1. In general.

This section is not applicable to an action by a surety against a sheriff to recover on a written contract executed by the sheriff in connection with, and in consideration of, surety’s execution as surety of defendant’s bond to sheriff. American Surety Co. v. Inmon, 187 F.2d 784, 1951 U.S. App. LEXIS 2312 (5th Cir. Miss. 1951).

Statute relating to liability of surety on sheriff’s bond held not in conflict with statute relating to recovery against sureties generally. State ex rel. Weems v. United States Fidelity & Guaranty Co., 157 Miss. 740, 128 So. 503, 1930 Miss. LEXIS 318 (Miss. 1930).

RESEARCH REFERENCES

Am. Jur.

23 Am. Jur. Pl & Pr Forms (Rev) Suretyship Form 1 (notice by surety to principal to defendant action).

Cross References —

Enrollment of judgments and satisfaction thereof, see §11-7-189.

Remedy of party paying execution, see §75-13-9.

JUDICIAL DECISIONS

1. In general.

A surety is entitled to subrogation as against the receiver to the extent of all claims paid by it pursuant to the obligation of its bonds. New Amsterdam Casualty Co. v. Wood, 213 Miss. 499, 57 So. 2d 141, 1952 Miss. LEXIS 390 (Miss. 1952).

Subrogation is allowed surety only in the event that the corporation or its receiver may have resources on hand after the payment of the claims of the defrauded stockholders. New Amsterdam Casualty Co. v. Wood, 213 Miss. 499, 57 So. 2d 141, 1952 Miss. LEXIS 390 (Miss. 1952).

Execution issued in the name of the complainant in the decree held not invalid so as to authorize injunction restraining sale thereunder although the decree had been paid by a surety, and the execution had not been endorsed that it was issued for the use of the surety. Edwards Bros. v. Bilbo, 138 Miss. 484, 103 So. 209, 1925 Miss. LEXIS 38 (Miss. 1925).

Surety paying a judgment has all the liens and equities therein that the judgment creditor had, both against the principal and other persons against whom the judgment was rendered. Quinn v. Alexander, 125 Miss. 690, 88 So. 170, 1921 Miss. LEXIS 147 (Miss. 1921).

Where a bond was conditioned for the principal’s personal superintendence of a building, in an action thereon it was error to exclude evidence of expenditures while the principal was absent. First Baptist Church v. Hendricks, 107 Miss. 267, 65 So. 244, 1914 Miss. LEXIS 77 (Miss. 1914).

Surety on a draft cannot recover of the acceptor more than he was compelled to pay to release himself from a judgment thereon. Wainwright v. Atkins, 104 Miss. 438, 61 So. 454, 1913 Miss. LEXIS 49 (Miss. 1913).

Such surety may recover of the principal debtor the full amount paid in satisfaction of the judgment. Wainwright v. Atkins, 104 Miss. 438, 61 So. 454, 1913 Miss. LEXIS 49 (Miss. 1913).

Sureties on the replevin bond of a claimant of goods under attachment, who are the beneficiaries in a deed of trust made to indemnify them against loss by reason of their suretyship, have no right to enforce the deed of trust until a judgment has been rendered against the claimant and paid by them, and in the absence of such right the attaching creditor cannot be subrogated thereto. Weir-Booger Dry Goods Co. v. Kelly, 80 Miss. 64, 31 So. 808, 1902 Miss. LEXIS 257 (Miss. 1902).

A judgment in replevin against principal and surety on a replevin bond, if rendered after the death of the surety, is absolutely void as to both. Weis v. Aaron, 75 Miss. 138, 21 So. 763, 1897 Miss. LEXIS 98 (Miss. 1897), overruled, Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840, 1922 Miss. LEXIS 176 (Miss. 1922).

Under this statute, a surety is subrogated to the rights of the judgment-creditor and to nothing more; and the judgment or decree will be barred in his hands at the same time it would have been barred in the hands of the judgment-creditor. Partee v. Mathews, 53 Miss. 140, 1876 Miss. LEXIS 48 (Miss. 1876).

RESEARCH REFERENCES

Am. Jur.

73 Am. Jur. 2d, Subrogation §§ 53 et seq.

CJS.

83 C.J.S., Subrogation §§ 67 et seq.

Cross References —

Conveyances and mortgages being made void if not lodged for record, see §89-5-3.

JUDICIAL DECISIONS

1. In general.

While under §87-5-9, mere payment of a judgment by a surety does not release the principal or co-sureties, and execution may issue against them, where a surety who pays a judgment procures the plaintiff to indorse upon the record of the judgment a receipt reciting that it is “in full payment of this judgment and the same is fully satisfied, and she is authorized to do therewith as she sees proper,” the judgment cannot afterwards be asserted as against a subsequent bona fide purchaser of lands from the principal debtor. Taylor v. Alliance Trust Co., 71 Miss. 694, 15 So. 121, 1893 Miss. LEXIS 81 (Miss. 1893); Yates v. Mead, 68 Miss. 787, 10 So. 75 (Miss. 1891).

Cross References —

How executions are issued and returned, see §13-3-113.

JUDICIAL DECISIONS

1. In general.

If the fact of suretyship does not so appear, the affidavit of the surety is necessary. Walker v. Gilbert, 21 Miss. 693, 1850 Miss. LEXIS 87 (Miss. 1850); Work v. Harper, 31 Miss. 107, 1856 Miss. LEXIS 42 (Miss. 1856).

When the fact of suretyship appears on the execution in the hands of the officer, the affidavit of the surety is not necessary. Moss v. Agricultural Bank, 12 Miss. 726, 1841 Miss. LEXIS 69 (Miss. 1841).

Editor’s Notes —

Former Section 87-7-1 provided for payments to subcontractors and suppliers.

Amendment Notes —

The 2006 amendment deleted “prime” preceding “contractors” in the introductory paragraph; and substituted “thirty (30) calendar days” for “sixty (60) calendar days” in the last sentence of (a) and in the next-to-last paragraph of (b).

JUDICIAL DECISIONS

2. Prejudgment interest not available.

3. Requirement of a contract with party to be charged.

4. Liquidated damages requirement.

2. Prejudgment interest not available.

Award of prejudgment interest under Miss. Code Ann. §75-17-1 in a contractor’s claim was error because the principal amount was not fixed before judgment and was unliquidated; the amount of claim was clearly in dispute, there was no finding that the owners disputed the amount owed in bad faith, and the trial court resorted to quantum meruit to fix the exact amount of damages. The same considerations which precluded a recovery of prejudgment interest for unliquidated amounts owed under §75-17-1 applied to Miss. Code Ann. §87-7-3. Falkner v. Stubbs, 2013 Miss. LEXIS 65 (Miss. Mar. 7, 2013), op. withdrawn, 2013 Miss. LEXIS 431 (Miss. Aug. 22, 2013).

3. Requirement of a contract with party to be charged.

While plaintiff contractor was entitled to certain legal fees and amounts due under a settlement agreement with defendants, a lessor and lessee of renovated property, its construction contact was only with the lessee and thus, no statutory penalties were available against the lessor under Miss. Code Ann. §87-7-3. The Stellar Group v. Pilgrim's Pride Corp., 2007 U.S. Dist. LEXIS 85242 (S.D. Miss. Nov. 13, 2007).

4. Liquidated damages requirement.

Where appellee’s recovery was based on an oral contract, he was not entitled to prejudgment interest because there was a bona fide dispute as to the amount of damages, and prejudgment interest was unavailable under Miss. Code Ann. §§75-17-1 or87-7-3 where the damages were unliquidated. Falkner v. Stubbs, 121 So.3d 899, 2013 Miss. LEXIS 428 (Miss. 2013).

Amendment Notes —

The 2006 amendment deleted “prime” preceding “contractor” throughout the section.

Cross References —

Imposition of standard state assessment in addition to all court imposed fines or other penalties for any misdemeanor violation, see §99-19-73.