Petition for Writ of Certiorari — Edward E. Morgan Co. v. United States ex rel. Pelphrey

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1955.

No. 894.

EDWARD E. MORGAN CO., INC., JONES & GILLIS,

INCORPORATED, UNITED STATES FIDELITY AND

GUARANTY CO., and STANDARD ACCIDENT

INSURANCE COMPANY, Petitioners,

vs.

UNITED STATES OF AMERICA, for the Use of

W. O. PELPHREY,

Respondent.

PETITION FOR CERTIORARI TO UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT.

WILLIAM Haroip Cox,

1109-10 Deposit Guaranty Bank Building,

Jackson (i), Mississippi,

Attoiney for Petitioners.

E. L. Menpennatr, Inc., 924 Wranporte, Kansas City, Mo., HArgison 1-3030

INDEX

Supsect INDEx

Preface (Containing Motion to File Certiorari) ___ 1

Paragraph I (Reference to Opinions of Court) = 2

Paragraph II (Statement Showing Jurisdiction of

Court) . : 2

Paragraph one (Questions ‘Presented by Petition for

Review on Certiorari) 3

Paragraph IV (Statement. of Case Containing Facts

Relevant to Questions Presented) $s 6

Paragraph V (Statement Showing J urisdiction in Trial

EN as men Sint cca abl ay OSI aNS RADE aged 9

Paragraph VI (Abridged Argument and Memoranda

of Authorities oo Petition) - 9

Conclusion and Prayer... Ache ee

Co a Red eRe SC ME Te

Appendix—

(a) Majority Opinion of Court - Sceiesaiubiagtidceaie Aa

(b) Dissenting Opinion of Coat +s ..... Al12

(c) Judgment United States Court of prearay setiions

(d) Order of Stay of Mandate of United States Court

of Appeals _ set . Allg

(e) Excerpt Pare Siena ¢ v. cies 22 Wall. Ww. s. )

My MEE cedetentee .... A19

TABLE oF CASES

Albert v. Farnsworth, (5C.C. A.) 176F.2d198. 12

Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 155 11

Autographic Register Co. v. Sebane J Hand Co., (5 C. A.)

198 F. 2d 212, 213 . 11

Brooklyn Savings Bank + v. . O'Neal, 324 U. ‘Ss. 697, 65

EA TU ose ia ccea ey rel ot 13

Chandler v. State vse Board, (5 C. is 61 F. od

601, 604 _ siociiiae ae

Ir INDEX

Chicago, Milwaukee & St. Paul ~ Co. v. Heman Clark,

178 U. S. 353, 20 S. Ct. 924 _ 11

Hemingway, Treas., v. Stansell, 106 U. s. 399, 1s. Ct.

473 . 11

hesnpaney Co. of North fp ere Vv. : ee atin

Co. of New Orleans, 140 U. S. 565, 11 S. Ct. 909, 911 12

J. Kahn & Co., Inc., v. Clark, Attorney General, (5 C.

A.) 178 F. 2d 111, 114 . 11

Kirby H. Jackson et al. v. C. E King, (5C. A.) 223 F. od

‘hee CERES Ns Oe ee 11

Meridian Star v. Kay, 52 So. 2d (Miss.) _ eee 12

Paramount Film Dist. Co. v. Applebaum, (5 C. i 217

F. 2d 101 13

Pennsylvania Railroad v v. , Cummberioin, 288 U. Ss. 333,

53 S. Ct. 391, 395 - Sale ahiiiag 10

Pleasants v. Fant, 22 Wall. U. s. 116, 121. 13, Alg

Whitfield Transportation Co. v. Border Truck Lines,

ea deel titpl died aie 12

STATUTES, TEXTBOOKS, ETC., CITED

|

eS eee | |

20 Am. Jur. 311, Section 333..0.0..0202«2~=3F Seti‘; COLD

a Ne | ee 12

55 Am. Jur. 283, Sections 21 and 22. tt ti—‘iéiZ:

55 Am. Jur. 285, Section 25.0002 = tad

17 C. J. S., Section 295, p.695 = == a

31 C. J. S. 750, Section 131 _ SEY, Se ae

Rule 49(a), Civil Peeaiiete _ eS OE

5 Tex. Jur., pp. 1025-1026, Section 15. Saleidlsibinctasada Tran 12

| a

2 U.S.C. A. Section 1961... 633 &

40 U.S.C. A., Section 270(a), et ee

40U.S.C. A. Section 270(b)... = ii‘(téCZ

SUPREME COURT OF THE UNITED STATES

a OCTOBER TERM, 1955.

No.

EDWARD E. MORGAN CoO., INC., JONES & GILLIS,

INCORPORATED, UNITED STATES FIDELITY AND

GUARANTY CO., and STANDARD ACCIDENT

INSURANCE COMPANY, Petitioners,

vs.

UNITED STATES OF AMERICA, for the Use of

W. O. PELPHREY,

Respondent.

LSS RRR

PETITION FOR CERTIORARI TO UNITED STATES

COURT OF APPEALS FOR THE

FIFTH CIRCUIT.

PREFACE.

Come Edward E. Morgan Co., Inc., Jones & Gillis, In-

corporated, and their sureties, United States Fidelity and

Guaranty Company and Standard Accident Insurance Com-

pany, and move the court to grant them leave to file with

WIA

2

and present to this Honorable Court the accompanying peti-

tion for a writ of certiorari directed to the United States

Court of Appeals for the Fifth Circuit in Cause Number

15,650 on the docket of said court from the adverse judg-

ment of said court affirming the judgment of the lower

court (R. 263) on February 23, 1956, and finally denying

a petition for rehearing (R. 284) therein on March 23, 1956,

as set forth in the accompanying petition for said writ of

certiorari; and show unto the court that said petition is

meritorious and petitioners should be allowed to file and

present the same to prevent a miscarriage of justice in this

case.

PETITION FOR CERTIORARI.

The petitioners pray that a writ of certiorari issue to

review the final judgment of the United States Court of

Appeals for the Fifth Circuit entered in the case of Edward

E. Morgan Co., Inc., et al., Appellants, v. United States of

America for the Use of W. O. Pelphrey, Appellee, affirm-

ing the judgment of the United States District Court for

the Western District of Texas, Waco Division, in said cause

adverse to appellants (R. 263).

I

The majority and dissenting opinion of the lower court

is not yet reported, officially or unofficially, but a copy of

both opinions appears in the appendix hereto.

II.

This suit arose under the Miller Act, 40 U. S.C. A,

Sec. 270 (a) et seq. It is a suit by a subcontractor against

the prime contractors and their surety on the statutory pay-

ment bond given by them in connection with a contract

3

for the construction of certain runways and facilities for

a government air force base near Killeen, Texas. The

petitioning contractors as defendants were clearly entitled

to a peremptory instruction in the lower court under con-

trolling decisions from the Supreme Court of Texas and

from this court. The jury was not sufficiently instructed

as to its duty in passing upon the intent and meaning of

the phrase “cubic yard” in a letter-contract between the

parties prepared by respondent to afford the jury any safe

guide in its deliberations. Proper and necessary instruc-

tions requested by petitioners were refused by the court.

A clear defense of accord and satisfaction was unmistakably

established but was ignored by the court. In the interest

of uniformity of decisions on important questions of Federal

law which should be settled by this court and to prevent a

complete departure from accepted and usual course of

judicial proceedings, this court should grant a writ of

certiorari to prevent a grave miscarriage of justice in this

case.

(a) The judgment of the Court of Appeals was

rendered and entered on February 23, 1956 (R. 263).

(b) On the 12th day of March, 1956 (within the

twenty-one day period provided by Rule 29 of said

court), a petition for rehearing was filed in the lower

court. A copy thereof appears at Page 264 of the record.

Said petition for rehearing was denied on the 23rd

day of March, 1956 (R. 284).

(c) The power to review the judgment adverse

to the petitioners is conferred by 28 U. S. C. A., Sec-

tion 1254(1).

ITI.

The questions presented by this petition for review by

this court are:

i

4

(1) The refusal of the lower court to give petitioners

a peremptory instruction or directed verdict. That instruc-

tion should have been granted by the trial court for two

reasons:

(a) The respondent produced no proof whatever

to show that the parties intended on April 13, 1953, to

measure this crushed stone by the cubic yard by loose

truck measure. No evidence or inference on any

evidence in this record authorized the court to submit

that question to the jury or supports the finding of the

jury for the respondent. All of the evidence and in-

ferences would lead to the conclusion that if there were

a meeting of the minds of these parties on that ques-

tion that they intended that this crushed stone should

be measured by the United States Engineers in place

and that these Engineers’ estimates under which peti-

tioners were paid should be used as the basis for set-

tlement with respondent except that respondent was

to be paid for not less than 40,000 cubic yards (R. 14)

although it was probable that the petitioners would

not be paid for more than 30,500 cubic yards (R. 123,

179).

(b) The evidence conclusively showed that peti-

tioners issued their check to respondent for $22,374.44

on August 27, 1953, on condition and with notations

thereon to the effect that it was in full payment of this

controversy in suit (R. 29), and said check was trans-

mitted by letter of like tenor (R. 28). The petitioners

refused to delete such notation from said check (R.

119-120); nevertheless, the respondent during the trial

voluntarily endorsed said check to the clerk and caused

the proceeds thereof to be deposited into the registry

of the trial court (R. 120, 150, 210). Such incident

was interposed as a defense and settlement of this

suit (R. 184, 12, and 13) to no avail.

(2) The lower court refused to grant petitioners

proper and sufficient instructions to the jury to enable them

to understandingly discharge their duties. Those requests

“pet

5

for additional instructions refused by the trial court and

affirmed by the Court of Appeals should have been given

if this case were submitted to a jury. Legal rules govern-

ing their deliberations were not explained to the jury and

the jury was thus allowed to grope in ignorance of such

rules to the wholly untenable conclusion which was ar-

bitrarily reached by them in this case.

(3) The trial court erroneously allowed the respond-

ent over petitioners’ repeated objections (R. 186, 187, 189,

193, 200) to offer testimony on the question of “custom and

usage” in Texas to establish the intent and meaning of the

contract in suit after both sides had concluded their testi-

mony and as rebuttal without amending the complaint

under the rules (R. 185). Such question of custom and

usage thus belatedly injected as an afterthought became

the controlling aspect of the case in determining by such

devious means what the contracting parties intended by a

contract which was made in Jackson, Mississippi, to be

performed near Killeen, Texas, Mr. Morgan who accepted

the proposal in Jackson (R. 146), said that he intended

and the contract meant to measure the cubic yard of this

material “in place” and not by loose truck measure (R.

146). Mr. Pelphrey, the other contracting party, never

disputed Mr. Morgan’s statement or said that the parties

intended anything to the contrary on said date. Mr.

Pelphrey did not testify on the question of custom and

usage but elected to remain mute on that question. If

respondent were to have been paid by the cubic yard in

place for this material as the prime contractors were paid,

as petitioners contend, then, admittedly, they owed him

nothing. Long after April 13, 1953, the prime contractors

made another contract with a man named Goetz (R. 181)

wherein they expressly agreed to pay him for hauling this

same material, and they paid Goetz for hauling 9,598 truck-

loads which were treated as containing five cubic yards

each (R. 138). Respondent seized upon this fact under this

subsequently made contract with a third party to contend

that by this hauling contract that these contractors owed

him for that same quantity of such material. Significantly,

when the contract was made on the 13th day of April, 1953,

it was actually contemplated that the material would be

hauled in Euclids and not trucks at all. It was con-

templated that the respondent might stockpile the ma-

terial (R. 14-15). It was not until later that it was de-

cided to hire Goetz to haul the material in his trucks (R.

181) and but for this later turn of events, the respondent

would have had no evidence to support his claim as this

record shows.

(4) The court on this special verdict of the jury

awarded respondent a judgment for $30,325.33 with six

percent interest thereon after July 24, 1953, to the date of

judgment on March 24, 1955 (R. 218), and authorized an

application thereto of the $22,374.44 monies in the registry

of the court. If anything were due, the award of interest

in this Miller Act case is controlled by Federal statute and

such award is in contravention thereof under 28 U. S. C.

A., Section 1961.

IV.

The respondent sued in this case under 40 U. S.C. A.,

Section 270(a), et seq., known as the “Miller Act,” to re-

cover money allegedly due for crushed stone furnished peti-

tioners who were prime contractors on a public job for the

United States. The suit was filed within the statutory

time and was based solely upon express terms of a letter-

contract between the parties for mining and crushing Ed-

wards limestone at $1.01 per cubic yard (R. 14). The

petitioners plead and proved that only 34,030.66 cubie yards

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of this crushed stone were furnished by the respondent

according to United States Engineers’ estimates and actual

measurements of the material “in place” by the engineers

and according to which measurement the petitioners them-

selves were paid by the United States (R. 152). The peti-

tioners issued their checks to respondent for 40,000 cubic

yards of this material as the minimum quantity fixed in

the contract (R. 152). Respondent contended for 47,990

cubic yards and showed that petitioners had paid Goetz

for hauling 9,598 truckloads which Goetz and the petitioners

treated as containing five cubic yards per load for the pur-

poses of their express contract to establish his (respond-

ent’s) claim for furnishing such quantity of said material

(R. 138). Admittedly, the parties never had any under-

standing or agreement, express or implied, about this ma-

terial other than is contained in the letter-contract (R. 131-

132, 181). No agreement about truck measure, no inspection

or effort was made to estimate truck measurement of this

material for the purposes of the contract in suit, and no

supervision of any kind was provided by either party for

the loading of the material or to see that the trucks were

fully loaded (R. 131-132). There was and is an absolute

dearth of evidence or testimony in the record to show or

even indicate that these parties ever agreed or intended in

any manner that petitioners should pay for this material

by “loose truck” measure. The minimum quantity (40,000

cubic yards) of this crushed rock is mentioned in the con-

tract because the parties realized that there was a one-third

shrinkage factor in the material in place (R. 132, 180).

When preparing this letter-proposal to the petitioners

(R. 14), respondent knew that the United States Engineers

in Item Four of their Information to Bidders (R. 65) had

estimated that 30,500 cubic yards of this crushed stone

would be needed to do this job (R. 123, 179). Respondent

PPL EDIE DLO ALE NPE LL DE LEAP LEIS ARAL CE MN OLE ALA NOES GNI ALCON ORI

8

furnished 34,030.66 cubic yards according to United States

Engineers’ estimates (R. 152) but he was paid by petitioners

for 40,000 cubic yards with their said $22,374.22 check (R.

28). The respondent had the entire section of the specifica-

tions in hand in submitting his proposal to furnish this

crushed rock (R. 71, 126) and these specifications showed

that petitioners were to be paid for the material by the

engineers’ estimates in place (R. 82-83). Nevertheless,

not a word was said by respondent to even indicate that

he had in mind any other method of measurement of this

material by the cubic yard other than “in place.” At the

conclusion of the petitioners’ testimony, for the first time

the respondent injected into the case the question of custom

and usage in Texas (R. 185) over the petitioners’ continuing

objection (R. 186, 187, 189, 193, 200). No order was en-

tered by the lower court authorizing the amendment which

was subsequently made of the complaint (R. 6). The trial

court submitted the case to the jury for a special verdict

under Rule 49(a) (R. 215-216). It refused petitioners’

request for a directed verdict (R. 213). It refused to give

any instructions requested by the petitioners to guide the

jury in its deliberations, although the petitioners were

clearly and undeniably entitled thereto (R. 211-213). The

lower court erroneously entered a judgment against the

petitioners and their sureties on their payment bond for

$30,325.33, together with six percent interest from July 24,

1953, and provided that the sum of $22,374.44 in the registry

of the court as the proceeds from petitioners’ check should

be applied thereto and deducted from said principal award

(R. 218). The United States Court of Appeals for the Fifth

Circuit affirmed said judgment and denied a petition for

rehearing. The attention of the court is directed to the

fact that the petitioners clearly tendered their $22,374.44

check to respondent on condition that it be accepted and

cashed in full settlement of this suit (R. 29). The peti-

9

tioners expressly declined to delete such provisions from

their said check as the complaint itself expressly states

(R. 119-120, 5), yet the respondent caused said check to

be cashed under such circumstances and paid into the

registry of the court and thereby effected an accord and

satisfaction under all of the authorities.

V.

Jurisdiction was vested in the trial court in this case

by 40 U.S. C. A., Section 270(b). It was a suit under this

Federal statute against these contractors who constructed

runways and other facilities for the United States at one

of its very important and strategic air force bases. The

questions involved in this case are of extreme importance

to these petitioners as contractors and others about the

country who are invited to bid competitively for work in

Texas for the government. A jury in this case has been

permitted to arbitrarily decide the case adversely to these

nonresidents of Texas without a scintilla of evidence to

support their conclusion. The lower court has failed to

apply the rules of the applicable and controlling authori-

ties to this case; and this court should intervene to correct

such errors.

VI.

(A) The court erred in refusing to direct a verdict

for the petitioners (R. 213) because:

1. There was not a scintilla of testimony to show that

these parties intended on April 13, 1953 (R. 15), to measure

this crushed stone by loose truck measure. The petitioners

owed the respondent nothing if the crushed stone was to

be measured by the United States Engineers in place

(compacted) as petitioners contend was intended and as

the testimony shows was their intent when the contract

was made at Jackson, Mississippi. Respondent had Sec-

10

tion Four of the Specifications which showed how this

material was to be measured by the cubic yard in place for

payment to the prime contractor (R. 82-83), and he (re-

spondent) had these data for the purpose of making this

proposal to petitioners to furnish this material. Under such

circumstances it is presumed as a matter of law that both

parties intended to so measure this crushed stone or re-

spondent would have otherwise stated in his proposal.

Stated differently, in case of ambiguity in respondent’s pro-

posal, it should be given that meaning which he knew or

had reason to know was in accordance with the under-

standing of the other party.' The authorities are legion

to the effect that a plaintiff must produce more than a

scintilla of evidence or suffer an adverse judgment.” The

respondent’s proposal itself shows that this material would

be delivered to petitioners’ hauling units known as Euclids

which are not trucks (R. 14) (and not to Goetz’ trucks) or

it could have been stockpiled. Either of such alternative

performances would have divested respondent of data

gained from the performance by Goetz of a subsequently

made hauling contract (R. 181) under which Goetz hauled

9,593 truckloads of this crushed stone under an express

contract for which he was paid by petitioners at the rate

of five cubic yards per load. 5

2. There was an accord and satisfaction by respond-

ent voluntarily endorsing and delivering petitioners’ $22,-

374.44 check to the clerk during the trial to cover into the ;

registry of the court. This check was delivered on condi- |

tion that it be accepted in fuil payment of the claim in suit.

The letter of transmittal (R. 28) and the check itself clearly —

PORE

117 C. J. S., Section 295, p. 695.

2Pennsylvania Railroad vy. Chamberlain, 288 U. S. 333, 53

S. Ct. 391, 395.

11

so provided (R. 29). Petitioners refused to delete such

inscription from the check as the complaint itself states

(R. 5). The cases are myriad to the effect that such use

of said check effected a full accord and satisfaction of the

claim in suit.* That respondent intended to effect such

legal result is conclusively presumed by reason of the neces-

sary effect of his deliberate act. Every man is presumed

to intend the natural and probable consequences of his own

act.*

(B) The instructions of the lower court furnished no

safe and dependable guide to the jury (R. 215-216) and

failed to inform the jury of proper yardsticks for use in

considering the case (R. 211-213). The case was submitted

for special verdict under Rule 49(a), Civil Procedure.

The court erroneously submitted a mixed question of law

and fact (intent of the parties and meaning of the contract)

in its charge to the jury® (R. 215). In the first place, this

was clearly not a case for employment of the ill-favored

special verdict under this rule. The jury was entitled to

more explicit instructions to guide them in an understand-

ing deliberation in the case (R. 212-213). The court should

not have admitted any testimony of custom and usage over

the petitioners’ objections (R. 186, 187, 189, 193, 200). No

fixed custom or established usage was proved sufficiently

*Chandler v. State Highway Board, (5 C. A.) 61 F. 2d 601, 604;

J. Kahn & Co., Inc., v. Clark, Attorney General, (5 C. A.) 178 F.

2d 111, 114; Autographic Register Co. v. Phillip Hand Co., (5 C. A.)

198 F. 2d 212, 213: Chicago, Milwaukee & St. Paul Ry. Co. v.

Heman Clark, 178 U. S. 353, 20 S. Ct. 924; Hemingway, Treas., v.

Stansell, 106 U. S. 399, 1 S. Ct. 473.

‘Allen v. United States, 164 U. S. 492, 17 S. Ct. 154, 155; 20

Am. Jur. 227, Section 232; 31 C. J. S. 750, Section 131; A. L. L,

Torts, Section 531.

*Kirby H. Jackson et al. v. C. E. King, (5 C. A.) 223 F. 2d 714,

718.

—

12

to give rise to any presumption of intent of these parties

on the date of the making of this contract.* The contract

came into being by acceptance in Jackson, Mississippi, and

Mr. Morgan who signed it (R. 15-16) said that he never had

any notice or knowledge of any such alleged practice in

Texas (R. 204). Mr. Pelphrey who sent the proposal to

Mr. Morgan never testified but remained mute on that ques-

tion. The suit, however, was on an express contract (R.

3-4) which was never changed (R. 131-132, 181). This tes-

timony actually added nothing to respondent’s case but

obviously confused the jury. In the alternative, the court

erred in overruling petitioners’ motion for a judgment and

new trial (R. 221). The respondent has induced the court

unwittingly to make a contract for him which he could

not have made with petitioners and then has enforced it

for him.

The untimely and improper receipt of testimony on

custom and usage to effectually amend the contract in suit

5Custom must be plead and clearly proved. Albert v. Farns-

worth, (5 C. C. A.) 176 F. 2d 198.

Usage must be shown so generally that it would be unreason-

able to show parties ignorant of it. 55 Am. Jur. 285, Section 25.

Custom to be binding by implication must be so universal as

to be conclusively presumed a part of the contract. 55 Am. Jur.

269, Section 7.

Courts look with disfavor on doctrine of custom and usage.

Actual knowledge or usage so general that parties presumed to

have acted on it must be shown. 20 Am. Jur. 311, Section 333;

Meridian Star v. Kay, 52 So. 2d (Miss.) 35; Whitfield Transporta-

tion Co. v. Border Truck Lines, 271 So. 2d 706, 708. Citing 5 Tex.

Jur., pp. 1025-1026, Section 15, and 55 Am. Jur. 283, Sections 21

and 22.

Usage in Texas could not affect contract made in Mississippi.

Insurance Co. of North America v. Hibernia Insurance Co. of New

Orleans, 140 U. S. 565, 11 S. Ct. 909, 911.

13

and the erroneous and inadequate instructions of the court*

were potent and controlling incidents which resulted prej-

udicially to the petitioners’ hurt and constitute such a

departure by the lower court from established precedent

as to call for an exercise by this court of its power of re-

view and supervision.

(C) The court in this case has allowed interest on

this judgment from a date prior to the date of the judgment

in contravention of 28 U.S. C. A., Section 1961. The matter

of the allowance of interest in this suit based on a Federal

statute is a substantial Federal question and not a local one.

The propriety of this award of interest prior to the date

of this judgment in contravention of this statute presents

a substantial and important Federal question not previously

determined by this court and justifying certiorari in this

case.*

This Honorable Court should review this case and

correct and vacate such unjust decision and rectify such

miscarriage of justice. The dissent in this case by a peer-

less lawyer and erudite scholar of the law alone should

convince this Honorable Court that petitioners’ case should

be reviewed here in the exercise of a sound judicial dis-

cretion.

Premises Considered, the petitioners pray that upon a

full consideration of this case by this Honorable Court

that it may please the court to order the issuance of a writ

of certiorari directed to the United States Court of Ap-

peals for the Fifth Circuit in this case; and petitioners pray

*The court must instruct a jury as to rules of law and protect

parties from unjust verdicts. Pleasants v. Fant, 22 Wall. U.S. 116,

121 (excerpt in appendix); Paramount Film Dist. Co. v. Apple-

baum, (5 C. A.) 217 F. 2d 101.

‘Brooklyn Savings Bank vy. O’Neal, 324 U. S. 697, 65 S. Ct.

895, 906.

—_— : rin op PN OE AM tp See oremeen “STR

14

that this Honorable Court will reverse the judgment of the

lower court in this case and remand the case to the United

States Court of Appeals for the Fifth Circuit with directions

to vacate its judgment in this case and to enter a judgment

reversing the judgment of the lower court and entering a

judgment for petitioners as appellants therein; or in the

alternative that the case be reversed and remanded to the

lower court for trial anew under proper directions of this

Honorable Court.

Most respectfully submitted,

WILLIAM Haro.p Cox,

1109-10 Deposit Guaranty Bank Building,

Jackson (1), Mississippi,

Attorney for Petitioners.

CERTIFICATE.

I certify as attorney of record for the petitioners in the

above-styled and numbered cause in this court that I have

this day mailed by air mail, postage pre-paid, to Peeler

Williams, Jr., Esquire, 404 Liberty Building, Waco, Texas,

and J. W. Crosland, Esquire, 1100 Republic National Bank

Building, Dallas, Texas, attorneys of record for the respond-

ent, at their said proper post-office addresses, a true copy

of the foregoing Petition for Certiorari in this case.

This April 20, A. D., 1956.

Witt1am Harotp Cox,

1109-10 Deposit Guaranty Bank Building,

Jackson (1), Mississippi,

Attorney for Petitioners.