Summary
In Magnolia Textiles v. Gillis, 206 Miss. 797, 41 So.2d 6 (1949) it was held that a restrictive covenant prohibiting for 10 years use of the property for any type of textile industry was ambiguous, and that the chancellor was warranted, after hearing extrinsic evidence of the intention of the parties, in holding that this restriction did not prohibit its use for the manufacture of garments.
Summary of this case from Carter, et al. v. PaceOpinion
June 13, 1949.
1. Equity procedure — quieting title — parties.
As a general rule all persons who are materially interested in the the event or subject matter, without whom no effective decree can be rendered, should be made parties in a suit to quiet title.
2. Equity procedure — quieting title — parties — assignees pending suit.
Where a suit has been filed by the owners of property to cancel a restrictive covenant in the deed to them as a cloud on their title and after the suit was filed they entered into a conditional contract with a third party to lease the property to said party in the event of a decree favorable to the owners, the proposed leasee, the said third party, is not a necessary party to the suit, since he has only a prospective or contingent or conditional interest dependent solely on the result of the suit.
3. Deeds — restrictive covenant — inconclusive expert testimony as to meaning of terms used as interpreted by the trade.
When a restrictive covenant in a deed has prohibited the use of the property for any type of textile industry for a period of ten years, and a number of experts in the trade were introduced in the effort to show that as understood in the trade such terms would include a garment factory, but there was such a disagreement among them that their testimony made the term ambiguous rather than clear the court would refuse to act thereon but would look further to the negotiations and conversations leading up to the adoption of the restrictive covenant.
4. Deeds — restrictive covenant — conflicting testimony as to negotiations leading up to adoption of restrictive covenant — decision of chancellor.
When the court has properly had recourse to the negotiations and conversations leading up to the adoption of the restrictive covenant in a deed in order to determine the meaning the parties had in mind in its adoption and the testimony on the inquiry is conflicting, the decision of the chancellor as to the meaning when substantially supported upon the whole case will not be reversed: So held when the chancellor had decided that a restrictive covenant against the use of the property for any type of textile industry did not prohibit its use in the manufacture of garments.
Headnotes as approved by Smith, J.
APPEAL from the chancery court of Pike County, R.W. CUTRER, Chancellor.
Price, Phillips Alford, George E. Shaw Robert E. Perry, L. Arnold Pyle, and Cameron Wills, for appellants.
Appellants' suggestion and motion of non-joinder of E. W. Garments, Inc. should have been sustained. Sections 107, 108, 115, 138, Griffith's "Mississippi Chancery Practice"; Dorsey, et al., v. Sullivan, 24 So.2d 852; Lamar Life Ins. Co. v. Billups, 175 Miss. 771, 169 So. 32; Smith v. Denny, 90 Miss. 434, 43 So. 479; Paepcke Leicht Lbr. Co. v. Savage, 137 Miss. 11, 101 So. 709; Sharp v. Learned, 195 Miss. 201, 14 So.2d 218; State v. Board of Supervisors, 188 Miss. 636, 196 So. 253.
Meaning of restrictive covenant arrived at solely from the language of the covenant itself. Webster's Collegiate Dictionary, Third Edition, page 995; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Frederic, et al. v. Merchants Marine Bank, 200 Miss. 955, 28 So.2d 843; Tiffany's Real Property (cited with approval by this court in Kilpatrick v. Twin States Realty Co., infra) Vol. 3, p. 471; Reece-Howell Co. v. Brown, 48 Utah 148, 108 P. 684; Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893.
Meaning of restrictive covenant construed in the light of negotiations between the parties.
1. Negotiations prior to June 2, 1942 — between McLain, Sanders and Shaw. New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766.
2. Knowledge, agreements and acts of McLain binding on all appellees. 7 C.J.S., Sec. 67 at page 850; White Black Rivers Bridge Co. v. Vaughan, 183 Ark. 450, 36 S.W.2d 672; Henderson v. Cape Trading Co., 316 Mo. 384, 29 S.W. 332; Griffith v. Investment Co., 92 Fla. 781, 110 So. 271; Great Atlantic Pacific Tea Co. v. Majure, 176 Miss. 356, 168 So. 468; 5 Am. Jur. Sec. 67 at page 298; Am. Law. Inst., Restatement of Agency, page 64, Sec. 21; Epperson v. Helbron, 145 Ark. 566, 225 S.W. 345, 15 A.L.R. 597; Baker v. Humphrey, 101 U.S. 494, 25 L.Ed. 1065; Johnson Hardware Co. v. Ming, 147 Miss. 551, 113 So. 189; Rhoads v. Peoples Bank Trust Co., et al., 200 Miss. 606, 27 So.2d 552; Corpus Juris at 7 C.J.S., page 855; 47 C.J., Secs. 289, 290, at page 826; 40 Am. Jur. Sec. 137, Partnership; Heirn v. McGaughan, 32 Miss, 17, 66 Am. Dec. 588; Faler v. Jordan, 44 Miss. 283; Davis v. Richardson May, 45 Miss. 499; Vaiden v. Hawkins, 6 So. 227; Baker v. Connecticut General Life Ins. Co., 18 So.2d 438, 196 Miss. 701; C.J.S. Title Agency, Secs. 262 to 274; 47 C.J., Sec. 381 at page 897.
3. Negotiations on June 2, 1942, and importance of negotiation between parties in arriving at meaning of ambiguous writing. Hattiesburg Plumbing Co. v. Carmichael, 80 Miss. 66, 31 So. 536; Kerl v. Smith, 96 Miss. 827, 51 So. 3; Venegar Bend Co. v. Churchwell, 123 Miss. 897, 86 So. 299; Overby v. Burnham, 190 Miss. 435, 200 So. 591; 32 C.J.S. p. 891; Carter v. Collins, 151 Miss. 1, 117 So. 336; Hessign, etc. Co. v. Parkes, 150 Miss. 322, 116 So. 435; Schlottman v. Hoffman, 73 Miss. 188, 55 A.S.R. 527, 18 So. 893.
4. Restrictive covenant should be construed most strongly against appellees. 26 C.J.S., Deed, Par. 82 (e), p. 322; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Fatheree, et al. v. McCormick, 199 Miss. 248, 24 So.2d 724; Allen v. Boykin, 199 Miss. 417, 24 So.2d 748.
Meaning of restrictive covenant construed in light of the testimony of the experts. Gillis v. Smith, 114 Miss. 665, 75 So. 451; Tarver v. Lindsay, 161 Miss. 379, 137 So. 93; Gerard v. Gill, 195 Miss. 726, 15 So.2d 478; Teague v. Brown, 199 Miss. 262, 24 So.2d 726.
Chancellor's finding not presumptively correct when based on writing or written evidence. Griffith's Chancery Practice, Par. 674, quoted from Ascher v. Moyse, 101 Miss. 56, 57 So. 299; 5 C.J.S., Appeal and Error, Par. 1660, p. 751; Mississippi Cotton Oil Co. v. Starling-Smith Co., 23 So. 648; Northern, etc. Co. v. Newman Lbr. Co., 105 Miss. 688, 63 So. 209; Lamar v. Lane, 170 Miss. 260, 154 So. 709.
Henley, Jones Woodliff, for appellees.
I. The court below correctly held that the language of the restricted covenant did not prohibit the operation of a garment factory.
A. The language of the covenant would not include a garment plant. 62 C.J. 832; Wood v. Allen, 82 N.W. 451, 11 Ia. 97, l.c. 100; Webster's New International Unabridged Dictionary — "Textile"; "Textile Dictionary", Callaway Mills Company, 1947; Century Dictionary and Encyclopedia — "Textile"; Biennial Census of Manufacturers of U.S. — "Textile Industry"; British Government Reports — "Textile Industry"; Cotton Textile Institute, Inc., 1944 pamphlet; "The Textile Industry" — H.E. Michl, 1938; "Textile Industry" — Americana Encyclopedia; Columbia Encyclopedia, page 1747, "Textile"; Encyclopedia Americana, Volume 26, pages 467-472; Encyclopedia Americana, Volume 7, pages 126-128; Cohn et al. v. Parker, State Tax Collector, 41 La. Ann. 894, 6 So. 718; Lake v. Guillotte, Tax Collector, 48 La. Ann. 780, 19 So. 924; Section 9703, Mississippi Code, 1942; 21 Words and Phrases, page 233 — "Industry"; Eberlien v. Industrial Commission, 297 N.W. 429, 237 Wis. 555; People v. Maggie, 33 N.E.2d 925, 310 Ill. App. 101; Words and Phrases Volume 21, page 167.
B. Language of covenant was not ambiguous. Words and Phrases, Volume 3, pages 63, 64, 315, 314, 312; Riggs v. Myers, 20 Missouri Reports 239; Donovan v. Boeck (Mo.) 116 S.W. 543; Texas Company v. Jackson, 175 Miss. 724, 164 So. 546; Dowling v. Smyley, 150 Miss. 272, 116 So. 294; 32 C.J.S., Sec. 962b; Green River Chemical Co. v. Rockport, 142 Ky. 609, 134 S.W. 1164.
C. Surrounding circumstances consistent with meaning as established by dictionaries, encyclopedias and government publications.
D. Appellants' testimony to the effect that the parties agreed in negotiations that the term "any type of textile industry" would not include a garment plant was not admissible, and the court should have sustained the appellees' objection thereto. Taylor v. Briggs, 2 C. P. 525; Bradley v. Steam Packet Co., 13 Pet. 89, 105; Goode v. Riley, 153 Mass. 585, 28 N.E. 228; Dennis v. Slyfield, 54 C.C.A. 520, 117 Fed. 474; Collas v. Brown, 211 Ala. 443, 100 So. 769; Abraham v. Oregon C.R. Co. et al, (Ore.) 60 P. 899, 37 Or. 495; Williston on Contracts, Volume 3, Section 610, page 1750; Pacific Coast Joint Stock Land Bank of San Francisco v. Jones, 92 P.2d 390; Williams v. Mid-South Paving Company, 200 Miss. 103, 25 So.2d 792; Lowery v. Williams, 143 Miss. 661, 109 So. 670; Jenkins v. King, 65 N.E.2d 121, 163 A.L.R. 397; Section 264, Mississippi Code 1942; Kervin v. Biglane, 144 Miss. 666.
E. Court correctly resolved conflict in testimony as to alleged agreement as to meaning of language in the covenant in favor of appellees.
Conflict existed as to whole testimony on alleged verbal agreement as to meaning of language.
Resolving conflict in testimony in appellees' favor does not impute improper motive to appellants' witnesses on said point. Legal Psychology, Brown, Page 204; Psychology for the Lawyer, Page 229, 237; Munsterberg "On the Witness Stand"; Moore on Facts, Volume II, pages 918-921, 946.
Judicial decisions recognize that the memory of an attorney, law clerk, or busy executive is less dependable than that of the average person. Moore on Facts, Volume II, Sections 792, 793.
Bias or interest may unintentionally affect a witness' memory. Moore on Facts, Volume II, pages 932-933.
Errors in memory are liable to occur when interested witnesses refresh each other's memory. Moore on Facts, Volume II, par. 815; Washburn v. Moen Mfg. Co. v. Beat 'Em All Barbed Wire Company, 143 U.S. 275, 284, 288; Moore on Facts, Volume II, par. 835.
Positiveness of a witness as to transaction happening long ago, indicates probability of error rather than accuracy. Moore on Facts, Volume II, pages 922-923; Arthur Train "Human Nature on the Witness Stand"; Swift Psychology "In a Day's Work", page 288; Munsterberg "On the Witness Stand", page 56; Arnold "Psychology Applied to Legal Evidence", page 172; McCarty "Psychology for the Lawyer", page 232.
It is very significant that the appellants' witnesses knew that McLain could not appear in person to testify. Moore on Facts, Volume II, Par. 877.
Memory of conversation is least dependable of all recollections. Moore on Facts, Volume II, Paragraphs 874, 876; Standard Oil Co. v. Henley, 199 Miss. 819, 25 So.2d 400.
Appellees' testimony the most reasonable. Bradley v. Howell, 161 Miss. 346, 134 So. 843.
F. Acts of McLain not binding on appellees. 7 C.J.S. 924 and note; 7 C.J.S. 857; 40 Am. Jur. 129.
G. Preponderance of the testimony of the experts is favorable to the appellees. Appellees' Expert Witnesses.
H. Language should be construed against the person responsible for use thereof. Williston on Contracts, Volume 3, Section 621, page 1788; Turner v. Cochran, (Texas) 57 S.W.2d 305 (1933); 17 C.J.S. 753, 754.
II. If a restrictive covenant is ambiguous, it should be limited to the plain language thereof and will not be enforced as to an ambiguous meaning. Baltimore Butchers Abatoir Live Stock Co., Inc., v. Union Rendering Co., 179 Md. 117, 17 A.2d 130; Johnson et al. v. Welborn et al., 181 S.W.2d 839; Smith v. Scoville et al., 199 N.Y.S. 320, 205 App. Div. 112; Romano v. Greenwald, 254 App. Div. 782, 4 N.Y.S. 2d; De Sanno v. Earle, 117 A. 200, 273 Pa. 265; Whitmarsh v Richmond, 179 Md. 523, 20 A.2d 161; Topol v. Smoleroff Development Corp. et al., 34 N.Y.S.2d 653; 264 App. Div. 164; Randall v. Atlanta Advertising Service, 125 S.E. 462, 159 Ga. 217; Glenmore Distilleries Co. v. Fiorella et al., 273 Ky. 549, 117 S.W.2d 173; Yorkway Apartments, Inc., v. Dundalk Co., 26 A.2d 398; Himmel v. Hendler, 161 Md. 181, 155 A. 316; J. L. Realty Co. v. Wood et al., 46 N.E.2d 832; David et al. v. Bowen, 12 S.E.2d 873, 191 Ga. 467; Settegast et ux. v. Foley Bros Dry Goods Co., 270 S.W. 1014, 114 Tex. 452.
III. Appellants' suggestion and motion of non-joinder was properly denied. 51 C.J.S., p. 509; Loven v. Roper, 178 N.C. 581, 101 S.E. 263; 51 C.J. 207; Tuteur v Brown, 74 Miss. 774, 21 So. 748; Minge v. Davison, (Fla.) 115 So. 510; McLendon v. McGee, 189 Miss. 712, 198 So. 725; First, Second, Third and Fourth Decennial Digest, Section 30 (3); Cherokee Nation v. Hitchcock, 47 L.Ed. 183; Rorock v. Board of Commissioners of Everglades Drainage District, 27 F.2d 377; Franklin Tp. in Somerset County v. Tugwell, 85 F.2d 208.
IV. Findings of facts based on preponderance of competent evidence. 32 C.J.S. 727; In Re Doyles Est., 103 P.2d 52, 152 Kan. 23; 32 C.J.S. 634; Kimber v. Kimber, 148 N.E. 293, 317 Ill. 561; 32 C.J.S. 562; 31 C.J.S. 945.
Appellees filed their original bill in the Chancery Court of Pike County against appellants, Magnolia Textiles, Inc., and J.H. Price, Trustee, averring "That the defendant, Magnolia Textiles, Inc. has asserted a claim and pretends to have a right with respect to the title of the above described land, to-wit: the right to prohibit the use thereof for the purpose of operating a clothing manufacturing plant thereon, which claim and pretension may cast a doubt or suspicion on the title of the complainants, the real owners of said property, with the right to use the same for such purposes, and that Section 1324 of Mississippi Code of 1942 authorizes the complainants to maintain a suit in a court of equity for the purpose of having said cloud, doubt or suspicion cancelled and their title forever decreed to be free and clear therefrom."
J.H. Price, Trustee, was made a party because of a deed of trust on the property involved, in favor of Magnolia Textiles, Inc., "in order that he might protect any interest which he may claim in said property by virtue of the provisions of said deed of trust, or which may be claimed by Magnolia Textiles, Inc. by virtue thereof."
The property involved in the suit is an old cotton mill building in McComb, which was acquired by R.D. Sanders, President of Magnolia Textiles, Inc., on August 15, 1941, and conveyed by him on August 18, 1941, to Magnolia Textiles, Inc., which on June 2, 1942, conveyed it to R.H. Jones. Three days later he conveyed a seven-eighths undivided interest in said property to N.B. Gillis, Kate Gillis, Edna H. Jones, W.G. McLain, Doris Cleo McLain, W.S. Johnson and Sallie Smith Johnson. On October 4, 1943, W.G McLain and Doris Cleo McLain conveyed their interest therein to their co-tenants, supra. The conveyees in that deed are the appellees in this case.
The suit revolved around a restrictive covenant and its meaning, in the deed from Magnolia Textiles, Inc., to R.H. Jones aforesaid, which reads as follows: "As a part of the consideration herein, it is agreed and covenanted that the said R.H. Jones and assigns shall not directly or indirectly use said property for any type of textile industry and shall not directly or indirectly operate in or on said property any type of textile industry for a period of ten (10) years from date hereof without first securing the written consent of the said Magnolia Textiles, Inc., or assigns. All of the same being a covenant which will run with the land, and violation of this agreement and covenant shall thereby subject the violator to all penalties of injunction, damages and other appropriate, legal and equitable remedies, and such violation shall thereby create a prima facie right to said remedies."
Magnolia Textiles, Inc., in June 1942 was engaged in "carding, spinning, weaving, and finishing cotton piece goods."
The contention of appellants is that this covenant prohibits the operation of cotton mills or weaving factories, and also needle manufacturing plants, and garment making of all types in or on the property. The appellees concede it prohibits the use of the building for cotton or weaving mills, but deny it bars needle plants, or garment making, therefrom.
Appellants insist that the purpose in insisting upon this covenant was to protect the labor of Magnolia Textiles, Inc., at Magnolia, a few miles from McComb, whence about one-third of its labor is obtained, and the labor of various other Sanders Industries, both weaving and needle, in the area. On the other hand, appellees argue that the purpose was to create a monopoly of labor and to thwart competition. That question, in our judgment, is incidental, however, to the real issue in this suit, which is the meaning of the phrase "That said R.H. Jones and assigns shall not directly or indirectly use said property for any type of textile industry, and shall not directly or indirectly operate in or on said property any type of textile industry for a period of ten years from date hereof without first securing the written consent of the said Magnolia Textiles, Inc., or assigns."
The prayer of the bill of complaint asked that "upon a final hearing of this cause, that a decree be entered cancelling and annulling any claim or pretense of the defendants that the above described property cannot be used for clothing manufacturing purposes under the provisions of said restrictive covenant, or in lieu thereof, for a cancellation of said restrictive covenant and that said clause in said deed be construed and held not to prohibit the manufacture of clothing on said property for the period of time therein prescribed, or in the alternative, that said clause be held to be null and void. . . ."
On the second day of February 1948, appellees entered into a conditional contract with E W Garments, Inc., chartered under the laws of Mississippi, but wholly owned by Ely-Walker Dry Goods Company of St. Louis. The agreement was to lease the property here involved to the proposed lessee for the making of garments. The condition of the contract was the contingency of a favorable issue in a court decision as to the restrictive covenant. Accordingly, this clause was contained in the conditional contract:
"Lessors will continue with diligence legal action to obtain a decision of a court of competent jurisdiction that such purported restrictive covenant does not prevent the use of the buildings on said property as a garment factory, and will endeavor to obtain a final decision in such litigation as soon as possible.
"If Lessors have obtained a favorable final decision in such litigation, then Lessee shall be obligated to immediately execute such lease and commence payment of the rent thereunder, provided that Lessee may at its option elect to execute said lease prior to the termination of such litigation and enter into possession of the premises, subject to the final outcome of such litigation."
Appellants filed a motion in the chancery court seeking to have the court require complainants to make E W Garments. Inc., a party-defendant, which motion was overruled. At the time suit was filed, appellants argue, appellees had entered into a written contract with one Niehaus, acting as agent for Ely Walker Dry Goods Company, and for a corporation wholly owned by that firm, to be formed. The Niehaus contract expired, and the new conditional contract for lease was made by appellees with E W Garments, Inc., the corporation Niehaus agreed to form, it is argued. Appellants say that under these circumstances E W Garments, Inc. was a necessary party to this suit.
Appellees call attention to the fact that the conditional contract with E W Garments, Inc., was executed after this litigation had started, and said corporation had no obligation to execute a lease unless and until this litigation ended in accord with their views, that is, successfully, as they wanted the court to decide it. Appellees take the position that E W Garments, Inc., propose to be only tenants of appellees, citing Loven et al. v. Roper, 178 N.C. 581, 101 S.E. 263.
It has been held that (Hn 1) as a general rule all persons who are materially interested in the event or subject matter, without whom no effective judgment or decree can be rendered, should be made parties, in a suit to quiet title. 51 C.J. Quieting Title, Section 137. The following Mississippi cases are cited to the foregoing text. Byrd, et al. v. Henderson, 139 Miss. 140, 104 So. 100; Terry v. Unknown Heirs of Gibson, 108 Miss. 749, 67 So. 209. The case at bar is a suit to cancel a covenant running with the land. (Hn 2) E W Garments, Inc., were interested alone in the outcome of the litigation, not inherently in the subject matter of the suit, either by contract to litigate or inherent property rights therein.
Appellants quote from Griffith's Mississippi Chancery Practice, Sec. 115, as follows: "In suits to cancel clouds the complainant . . . may proceed against those of his own choosing, subject to the requirement, of course, that when he chooses to attack a particular cloud or claim of title he should join all those interested in that specific and particular claim — as for instance, if he seek to cancel a certain deed as a cloud on his title he should make all of the grantees under the deed parties defendants, . . . ."
E W Garments, Inc., own no part of the title to the property involved, the restrictive covenant was not made with it, and their only prospective relation to the property was that of tenants. So that, in our view, they had merely a concern in the outcome as affecting their developing into lessees, quite a different thing from the kind of interest Judge Griffith had in mind. Appellees quote the Florida Supreme Court: "At the time the bill was filed to quiet title and the final decree was recorded, Minge had no interest in the land, and he now has no right to intervene and become a party defendant. . . . `The purchase of the land and the assignments of the judgments all occurred pendente lite. If Varn under the circumstances, is entitled to appear as a party defendant, then any assignee of his would also be entitled to appear, and the litigation could be protracted without end.'" Minge v. Davison, et al., 94 Fla. 1197, 115 So. 510, 511.
We think the chancellor was correct in overruling this motion.
Each side to the case introduced a number of experts in the textile trade, whatever that may mean, whether weaving or needle manufacturing. These were all distinguished, well-qualified and representative men from over the Nation. The purpose of their testimony was to demonstrate to the court that the phrase in the restrictive covenant set out, supra, had a universally, uniformly accepted meaning to the trade in Mississippi and Nationaily. (Hn 3) They, by their most interesting testimony, demonstrated by their own disagreement and divergence of understanding of its significance, made manifest that the phrase is ambiguous, and not solvable by uniform trade understanding, and hence decree for neither side can rest on this testimony, in our judgment.
This situation justified the resort to the further aid of construction, that of the negotiations and conversations leading up to the adoption of the restrictive covenant. Appellees first introduced evidence thereof, and were followed by appellants, along the same line. The witnesses on this issue testified partly by oral testimony before the chancellor, partly by certified transcripts of their testimony in a Federal Court suit involving this same restrictive covenant and now pending in the Circuit Court of Appeals, and partly by deposition. Appellants contend that this evidence was not conflicting, but with that we cannot agree. (Hn 4) The appellees' witnesses contended that the words, "garment making", or kindred activities, were never used, and that Mr. Sanders insisted only that no cotton mill be operated there. For instance, R.H. Jones, one of the appellees, testified that Mr. Sanders said: "I don't want you boys opening up a cotton mill in McComb." On the other hand, appellants' witnesses declared that he was vehemently against the garment industry. As illustrative of the conflict, we will also quote a statement Mr. Sanders made: "I was very apprehensive all along during my negotiations about the wording, and during the writing kept cautioning Mr. McLain and Mr. Shaw to be sure that the wording of the contract be so constructed that there never could be operated in that building, during the life of the contract any of those types of knitting and weaving and garment factory, and chenille factory, etc. They assured me that they were covering that, and after they had drawn it I had occasion to talk to Bill McLain, and asked him if he was satisfied and if his associates were satisfied that all of those were covered properly, and he assured me they were and that it meant nothing to those folks, that we could have put anything in there we wanted to; all they intended to do with it was to operate a war plant there."
At the time of the purchase, the purchasers were interested only in obtaining the property in order to make a contract with the Maritime Commission of the United States for manufacturing rafts as instruments of war for the Government in the World War No. II then waging; and then contemplated no other purpose.
Appellants counsel dictated into the record the following stipulation as to the attorney, Mr. W.G. McLain, former part owner of the property, and attorney for the appellees during the negotiations, who probably dictated the deed, or at least did so in collaboration with Mr. Shaw, attorney for appellants. "It may be assumed that Mr. W.G. McLain was asked this additional question: `Please state to the best of your recollection as to whether or not garment factory or clothing manufacturing plant was ever mentioned by any of said parties in said conference in connection with said restrictive covenant and your best recollection as to whether there was any specific agreement that said restrictive covenant would cover a garment factory?'" It was further stipulated that his answer was "No."
Johnson, Gillis and Jones testified that Mr. Sanders was insistent upon no cotton mill operation in the building, to protect Magnolia Textiles, Inc. at Magnolia, a cotton or weaving mill. Mr. Shaw, attorney for Magnolia Textiles, and his secretary, corroborated Mr. Sanders. We are forced to conclude that the findings of the chancellor, on this point, was based on conflicting testimony, and thus we are faced with the problem, regardless of how we might have adjudicated it as chancellor, and regardless of the fact that if the chancellor had decided in favor of appellants, he would have had sufficient substantial evidence to sustain the decree, whether we can reverse the chancellor as being manifestly wrong and against the overwhelming weight of the evidence.
In Bradley v. Howell, 161 Miss. 346, 133 So. 660, we held that unless the Supreme Court, on appeal in a suit on a contract, in view of ambiguities therein, could say with requisite assurance that the chancellor was wrong, the decree must be affirmed. By a long line of decisions, we have held that chancellor's findings, on conflicting evidence, are conclusive on appeal unless manifestly wrong. See Cole v. Standard Life Ins. Co., 170 Miss. 330, 154 So. 353. And in Partee v. Bedford, 51 Miss. 84, this Court held that a decree substantially supported by competent evidence would not be reversed. We must, in such a situation, abide by the chancellor's decree. Chapman v. Federal Land Bank of New Orleans, 185 So. 586; Hays v. Lyon, 192 Miss. 858, 7 So.2d 523; Evans, et al. v. City of Jackson, 201 Miss. 14, 28 So.2d 249. We have also held that where the evidence is equally balanced or nearly so, and would warrant a verdict for either party, the verdict given will not be disturbed. Greenville Brick Improvement Co. v. Hyatt Smith Mfg. Co., 11 So. 471. These cases could be increased numerously by others to the same effect, but it would unduly and unnecessarily prolong this opinion. However, in view of these mandatory authorities, under the rule of stare decisis, we are constrained to affirm the decree of the chancellor.
The record consisted of six large volumes, and the able but voluminous briefs encompassed all "the law and the prophets." However, we deem it unnecessary to discuss any features of the case, or briefs, other than the ones we have here set out in this opinion. But we must pay a tribute to the energy and ability of counsel on both sides in marshalling the evidence and witnesses, and in their comprehensive arguments, all of which we have meticulously examined and considered in several conferences.
We here reproduce a reference to an opinion by this Court from a recent issue of Case and Comment: "Though a brief may illustrate true eloquence, `the lightning of passion, playing along the line of thought' — the Court must content itself with `the ice cold law, from which no friction will excite sparks.'" Citing Illinois Central R. Co. v. Johnson, 77 Miss. 727, 28 So. 753, 51 L.R.A. 837.
The chancellor decided that the restrictive covenant contained in the deed involved here did not prohibit the use of the described property as a place to manufacture garments or other similar articles of wearing apparel. A decree was entered consonant with the prayer of the original bill, and a cross-bill filed by the appellants was dismissed. In view of what we have said, supra, we repeat that we are constrained to affirm the decree of the chancery court.
Affirmed.