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DECEMBER 18, 1985




The parties to this lawsuit are both chiropractors. Plaintiff/appellant Dr. Larry Turner, sued defendant/appellee Dr. Reed V. Wakefield for the $8,000 balance due on a promissory note for purchase of Turner's chiropractic practice. Wakefield affirmatively alleged that Turner wrongfully represented the value of the equipment and expected income from his first year of practice. From a defendant's verdict in favor of Wakefield, Turner appeals, assigning as error:

(1) The court erred in overruling the plaintiff's motion for a directed verdict;

 (2) The court erred in granting defendant's requested instruction No. 5 in that there was no evidence or facts to warrant or justify the granting of said instruction;

 (3) The verdict of the jury was contrary to the law, contrary to law and the evidence, and contrary to the overwhelming weight of the evidence.

 Drs. Turner and Wakefield first became acquainted when Wakefield injured his neck playing football for the Ole Miss Rebels and sought treatment from Turner. Wakefield saw Turner for daily treatments at first and continued to see Turner weekly. Upon Wakefield's graduation from Ole Miss, Turner encouraged Wakefield to attend chiropractic school in Davenport, Iowa. During his study of chiropractics, Wakefield returned to Oxford and spent one month as an associate with Turner. Wakefield also worked at the clinic on two other occasions for about three weeks. Wakefield and Turner established a very close relationship in which Wakefield had the greatest trust and confidence in Turner. Upon graduation from Palmer College, Wakefield expressed an interest in returning to Oxford. Turner and Wakefield decided that Wakefield should purchase Turner's practice. Before purchase, Turner advised Wakefield that the normal takeover of patients from a practice would be about sixty to eighty percent. Wakefield requested that Turner show him the records for the practice but Turner refused and referred him to the First National Bank to see them. Turner told Wakefield" I'll be giving you $30,000 next year ", which Wakefield understood to mean that he should make at least $30,000 in his first year of practice.

 On August 25, 1978, Doctors Reed V. Wakefield and Larry Turner executed a promissory note for $12,000 for the balance due when Wakefield purchased Turner's chiropractic equipment for $18,000.

 After four months and four payments of $300 per month on the $12,000 promissory note, Wakefield sought advice from an attorney. The attorney contacted Turner stating that Wakefield questioned the validity of Turner's representations about the practice. Wakefield had not made a profit and was struggling to meet his monetary obligations. Yet Wakefield continued to make the $300 per month payments to Turner for eleven months. In December, 1980 Wakefield contacted his current attorney who told Wakefield to make no more payments. Dr. Turner filed suit in January, 1981 for the balance due on

 the promissory note of $8,000. At the trial in 1983 Dr. Roy Singley, witness for the defendant, testified that the equipment purchased by Wakefield was worth about four to six thousand dollars at most. Wakefield subsequently sold the equipment for the value of approximately $4,000.


 Did the court err in overruling appellant's motion for a directed verdict in that, as a matter of law (asserts appellant), appellee, by making payments on the note for eleven months after Wakefield charged Turner with fraud, waived the affirmative defenses of fraud, deceit, misrepresentation and thereby ratified the validity of the note.

 In the case sub judice the trial judge was called upon to make a determination whether, under the facts of this case there existed a question of law for the judge or a question of fact for the jury. The trial court apparently believed it was a fact question to be assigned to the jury for resolution.

 In resolving an issue of law or fact, the trial judge must first determine the relevant law to be applied, as the trial judge has the duty of law declaration.

 Appellant cites several cases for the legal proposition that" when a party has full knowledge of all defenses to a note and executes a new note, payable at a future date, he then waives all his defenses and becomes obligated to pay the new note. "Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 604, 153 So. 818 (1934). And where the facts and circumstances are such that a reasonably prudent person, judged by normal standards, would or should have made inquiry, which inquiry, if reasonably pursued and with ordinary diligence, would have lead to foreknowledge of his defenses, then it becomes the duty of the party or parties, to make such inquiry or investigation before executing the renewal note, and if he fails to do so he ...

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