THE INTERNATIONAL TRUST COMPANY OF LIBERIA (ITC), Appellant, v. DORIS COOPER-HAYES, Appellee.

APPEAL FROM THE JUDGMENT OF THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT, MONTSERRADO COUNTY.

Heard: May 6, 2002. Decided: June 14, 2002.

1. Every contractual obligation need not be in writing; it may be oral and can be ascertained from a course of dealings between the parties.
2. A contract can be implied; that is, it may be created when the facts are such that it is clear that the parties intended to make the contract.
3. Where a contract is in writing, it need not be one single writing; it may be in several pieces of writing which, when taken together, can be clearly said to constitute one instrument relating to the contract.
4. Contracts may be partly written and partly oral.
5. Reliance on a representation and the subsequent change of position creates a contractual obligation.
6. The course of dealings between a banking institution and its customer regarding the deposit into and withdrawal from savings accounts in both United States dollars and Liberian dollars constitutes a valid implied contract between the parties, and the currency in which the deposits are made will be the currency in which withdrawals are made.
7. General damages are those which are the natural and necessary result of the wrongful act or omission asserted as the foundation of liability.
8. Where general damages awarded to a plaintiff by the trial court are not directly traceable to the wrongful conduct or act of the defendant, there is no foundation or justification for liability and the losses complained of and claim for such damages will be denied.
9. Although the jury are triers of facts and have the prerogative to determine and award damages to a successful party, the award of such damages must be predicated only upon sufficient evidence adduced at the trial.
10. The court will not disturb a verdict which is cogent and supportive of sufficient evidence.
11. A plaintiff will not be denied a substantial recovery if he/she has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his damages.
12. For general damages to be awarded, there must be some evidence of damage or loss, and the award must be somewhat proportionate to the actual damage sustained.

The appellee who maintained two separate accounts with the appellant, in which accounts she deposited both United States dollars and Liberian dollars, sued the appellant for damages for breach of contract because of the appellant refusal to allow her to withdraw from the said accounts the United States dollars which she had deposited into the mentioned accounts. The appellant had contended that it was acting pursuant to a regulation of the National Bank of Liberia which relieved local banks from paying out withdrawals in United States dollars even though deposits had been made in United States dollars.
The appellee had prayed for special damages of $1,042.00, being the amount of United States dollars which she had deposited into the savings accounts maintained with the appellant bank, and general damages of US$1.5 million for the disgrace, mental anguish, shame, and humiliation that she had suffered as a consequence of the appellant’s refusal to allow her to withdraw from her accounts the United States dollars which she had deposited into the said accounts.
Following a trial, the jury returned a verdict in the amounts requested by the appellee. The trial judge rendered judgment thereon confirming the verdict, after the court had denied the appellant’s motion for a new trial. From this verdict and judgment the appellant appealed the case to the Supreme Court for review.
The Supreme Court affirmed the verdict and judgment with regard to the award of special damages, but modified the award with respect to the general damages. The Court opined that contrary to the assertion of the appellant that it had the right to determine what currency to allow the appellant to withdraw from her accounts notwithstanding she had deposi-ted United States dollars into the said accounts, the appellant was obligated to pay the appellee from her savings accounts the United States dollars which she had deposited into the said accounts. The Court observed that there was an implied contract between the appellant and the appellee, growing out of the fact that appellant had led the appellee into believing that she would be able to withdraw from her savings accounts amounts in the currency in which she had deposited into the accounts. The Court noted that such contract was not required to be in writing, but could be inferred from the conduct of the parties, and it concluded that the conduct of the parties sufficiently indicated that there was an implied contract.
The Court, however, disagreed with the award of US$1.5 million as general damages, stating that the appellee had failed to show by a preponderance of the evidence that she had suffered the injury alleged in the complaint. The Court said that while the jury were triers of the facts and ordinarily its verdict would not be disturbed where supported by the evidence, awards made by the jury would be adjusted to reflect the evidence presented by the party plaintiff. In the instant case, the appellee had failed to justify the award, the Court said. Accordingly, the Court reduced the general damages to 100% of the amount awarded as special damages, consistent, it said, with recent decisions handed down by it. Thus, the judgment was affirmed with modification.

H. Varney G. Sherman and I Johnny Momoh of the Law Firm of Sherman & Sherman appeared for the appellant. Marcus R. Jones of the Law Firm of Jones & Associates Legal Consultant appeared for the appellee.

MR. JUSTICE SACKOR delivered the opinion of the Court

The certified records in the case before us showed that Madam Doris Cooper-Hayes, the appellee herein, appeared at the International Trust Company (now International Bank Liberia Limited), where she opened two savings accounts. The first savings account, with the number 10-22050-7, was in the appellee’s name only. The second savings account, bearing the number 13-22050-7, was in appellee’s name in trust for her father, Edward J. Cooper, Sr. It is important to note that the deposit slips for deposit of money into these two accounts had different columns; that is, there was a column for bills, which meant United States dollars, since at the time there was no Liberian dollar bills in circulation in Liberia, and there was a column for coins, which meant the L$5 coins and coins of smaller denominations.
On the 7th day of August, A. D. 1992, the appellee wrote a letter to the president of the appellant requesting that the appellant make available to her the deposits in the two accounts mentioned above on or before August 14, 1992. The appellant, in a letter dated August 21, 1992, regretted that the appellee could not withdraw United States dollars from her accounts because of a regulation promulgated by the then National Bank of Liberia which stipulated that “banks receiv-ing deposits in U. S. dollars prior to 1986 are not obligated to pay withdrawals in U. S. currency. Such withdrawals can be made only in Liberian dollars.” Predicated upon the foregoing, the appellee addressed a communication to the Governor of the National Bank of Liberia seeking clarification from him relative to the alleged passage of the regulation denying depositors holding United States dollar accounts at financial institutions of the right to their United States dollars. In response thereto, the National Bank of Liberia, in a letter dated September 1, 1992, advised the appellee that the appellant, who had alleged the passage of the said regulation, should provide the same to prove the issuance thereof by the National Bank of Liberia.
Following the exchange of the letters mentioned above, the appellee, on September 15, 1992, instituted this action of damages, claiming as special damages the total bank deposits in both accounts, the same being US$1,042.00 (the currency in which she had made the deposit) and L$5,000.00 which she had credited to underwrite the costs of her daughter’s wed-ding, plus six percent (6%), in addition to the banking interest rate on savings accounts, and as general damages the amount of one million five hundred thousand United States dollars (US$1.5 million) for the pain, suffering, humiliation and disgrace suffered by her as a consequence of the appellant’s action.
On the 26th day of September, A. D. 1992, the appellant filed a thirty-count answer to the complaint. In counts three (3) and six (6) of the answer, the appellant conceded the existence of the two accounts, but it contended that the said accounts were a mixture of both United States dollars and Liberian dollars, and that as such, the appellee could make withdrawals in Liberian dollar only as the Liberian dollar was on par with the United States dollar. In counts 7 and 23 of the answer, the appellant denied the existence and breaching of any implied contract, and it stated that it could not be held liable for general or special damages. In counts 18 and 21 of the answer, the appellant contended that the appellee did not show that the disgrace, mental anguish, shame and humiliation that she claimed she allegedly suffered was directly traceable to the conduct of the appellant, and it asserted that its alleged refusal to permit the appellee to make a withdrawal of US$1,042.00 could not have caused her to incur US$1.5 million in damages.
In response to the answer, the appellee filed a forty-count reply, upon which pleadings in the case rested.
The records in this case further showed that the trial judge, while ruling on the law issues, dismissed the appellee’s complaint, stating as the ground therefor that the affidavit which accompanied the complaint was legally defective. During the March, A. D. 1993 Term of Court, this Court, in its opinion delivered on July 23, 1993, reversed the ruling made by the trial judge on the law issues dismissing the case, and remanded the case to be heard on its merits. The case again came before us upon a petition for a writ of certiorari, filed before the Court en banc during the October, A. D. 1998 Term of the Court. After a hearing of the petition, we granted the peremptory writ of certiorari and again reversed the ruling of the trial judge on the law issues. In that opinion we ordered the trial court to resume jurisdiction over the case and to recommence the hearing of the case, beginning with the disposition of law issues, in accordance with the pretrial order of 1994 approved by Judge William B. Metzger, Sr.
In obedience to our opinion and judgment of 1998, the trial court resumed jurisdiction over the case and proceeded with its hearing of the merits of the case, with the aid of a jury. At the conclusion of the evidence, the jury rendered a verdict in favor of the appellee, awarding her US$1,042.00 and L$5,000.00 as special damages, and US$1,500,000.00 as general damages. A motion for a new trial was filed, resisted, heard by the court, and denied. His Honour Emmanuel M. Kollie, who presided over the case, rendered his final judg-ment on August 16, 2000 affirming the verdict of the trial jury, and awarding the appellee the sum of US$1,042.00 and L$5,000 as special damages, and US$1.5 million as general damages. The appellant excepted to the judgment and announced an appeal to this Court. Thereafter, the appellant filed a thirty-one count bill of exceptions, which included allegations that the trial judge failed and refused to instruct the jury on several issues of law and fact. We deem only counts 11 and 15 to be relevant for the determination of the case, and we hereunder quote the same for the benefit of this opinion:

“11. That the mere fact that plaintiff/appellee herself testi-fied that in the same account she deposited both United States dollars and Liberian dollars, commingled both currencies and withdrew both United States dollars and Liberian dollars from said accounts, and the mere fact that there was no separation of the two currencies in the accounts, and there was no agreement between plaintiff/appellee and defendant/appellant for the separation of the monies into Liberian dollars and United States dollars, clearly prove that the payment of Liberian dollars on any withdrawal was proper and lawful. Yet, the jury found defendant/appellant liable in damages for not paying United States dollars on the withdrawal of 1992 and your Honour confirmed said verdict in the final judgment. And for which defendant/ appellant excepts.”

15. That the law is that general damages should be the necessary and ordinary result of the wrong complained of. The law also is that general damages should in no case be in excess of the special damages. Yet in this case, the jury awarded plaintiff/appellee special dama-ges of US$1,042.00 and general damages in the amount of US$1.5 million, which is not only excessive but also in violation of the law. And yet, Your Honour confirmed the verdict in the final judgment. And for which defendant/appellant excepts.”

Both parties filed their respective briefs, wherein they raised and strenuously argued several issues to persuade this Court regarding their respective positions. However, we shall now decide all of the issues raised and argued by the parties because we observed that this is the third time that this case has come before us for our appellate review and determina-tion. The issues which we consider determinative of this case are:

1. Whether or not the verdict of the trial jury, awarding the appellee the sum of US$1.5 million as general damages, is excessive and grossly disproportionate to the measure of damages?
2. Whether or not the deposit of both Liberian and United States dollars into appellee’s two accounts and the withdrawal of the two currencies therefrom over a period of time constituted a valid implied contract?

We shall decide the above issues in the reverse order. Thus, we shall firstly decide the issue of whether or not the deposit of both Liberian and United States dollars into appellee’s two accounts and the withdrawal of the two currencies therefrom over a period of time constituted a valid implied contract. The appellant alleged in count 11 of its bill of exceptions that the appellee testified to the fact that she had mixed accounts. The appellant also alleged that there was no agreement between the appellee and the appellant for the separation of the monies into Liberian and United States dollars, and that the payment of Liberian dollars on any with-drawal was proper and lawful. During the arguments of the case, the appellant conceded that it had refused to pay United States dollars to the appellee at the time she approached its business establishment to withdraw United States dollars from her saving accounts, but it contended that it was not obligated, either by law or by contract (oral or written), to pay out United States dollars on the two savings accounts. It argued that it had no contract with the appellee to pay her United States dollars on withdrawals from her two savings accounts, stating that pursuant to the regulation or action of the National Bank of Liberia, the mere deposit of United States dollars into an account did not ipso facto oblige the bank to pay United States dollars, in the absence of a special agreement between the customer and the bank requiring the payment of United States dollars on said account.
The appellee, in her arguments before this Court, stressed that the appellant’s own witnesses had admitted that she (the appellee) had deposited into and withdrawn from her accounts both United States dollars and Liberian dollars, and that she had withdrawn as much as US$2,000,00, but had maintained that the United States dollar withdrawal was based upon the “good will” gesture of the appellant. The appellee also argued that the deposit into and withdrawal of Liberian and United States dollars from her accounts held with the appellant prior to the time when United States dollars became scarce was a permissible mode of dealing with savings accounts at the appellant’s bank. Hence, the appellee maintained that there existed an implied contract between the parties. She argued strenuously that the trial jury had heard the evidence and had concluded that the appellant had over a period paid from the two accounts both Liberian and United States dollars, which action the appellant witnesses had called “gratis”. The pay-ment of United States dollars by the appellant, the appellee asserted, constituted an implied contract between the parties. Moreover, the appellee contended that the appellant had admitted in its letter of August 21, 1992 that it could not pay appellee her legitimate United States dollars, and that she could be paid only in Liberian dollars based upon an alleged regulation of the National Bank of Liberia, now the Central Bank of Liberia, which was never produced.
The records in the case indicate that in 1985 the appellee opened, operated and maintained two savings accounts with the appellant bank, and that she deposited into and withdrew from the said accounts both United States and Liberian dollars over a period of time. On September 5, 1989, the appellee withdrew US$800.00 from the savings account which she had opened in trust in the name of her father, Edward J. Cooper, and US$1,200.00 from the savings account which she had opened in her own name. On the 7th day of August, A. D. 1992, the appellee addressed a letter to the appellant requesting the aggregate amount of US$1,042.00, being her deposit balance in her two savings accounts. The appellant wrote its reply to the appellee on August 21, 1992, under the signature of Counselor George E. Henries, explaining its position. We quote hereunder paragraph two of the said letter for the benefit of this opinion:

“We are indeed sorry about you not being able to with-draw U. S. dollars from these accounts. But as a result to a regulation made by the National Bank of Liberia, banks receiving deposits in U. S. dollars prior to 1986 are not obligated to pay withdrawals in U. S. currency. Such withdrawals can be made only in Liberian dollars.”
In a letter dated September 1, 1992, the in-house counsel of the National Bank of Liberia, Counselor Isaac E. Wonasue, addressed a letter to the appellee’s counsel, in reply to his letter of August 26, 1992, advising the appellee that The Inter-national Trust Company (I.T.C.) should provide information, including the production of a copy of the alleged regulation, as proof of its issuance.
This Court notes that the appellant’s letter of August 21, 1992 admitted that the appellee had United States dollars in her two savings accounts, but it refused to allow her to make a withdrawal of United States dollars from said accounts predicated upon an alleged regulation of the then National Bank of Liberia. The then National Bank had advised the appellee that the appellant was under an obligation to produce a copy of the alleged regulation as proof of its issuance by the National Bank of Liberia to substantiate its allegation that banks receiving deposits in United States dollars prior to 1986 were under no obligation to pay out withdrawals in United States dollars and that such withdrawals could be made only in Liberian dollars. However, the withdrawal slips of Septem-ber 5, 1989 for the sums of US$800.00 and US$1,200.00 showing that withdrawals from the appellee’s two accounts were made in United States dollars negated the appellant’s contention that an alleged regulation of the then National Bank of Liberia relieved banks that received deposits in United States dollars prior to 1986 from any obligation to pay out withdrawals in United States dollars as such withdrawals could be made only in Liberian dollars.
The issue to be resolved by us is whether by virtue of the deposit slips and the conduct of payment of United States dollars on one occasion from each of the two savings accounts, an obligation arose on the part of the appellant to pay back the United States dollars deposited. The jury of ordinary reasonable men and women concluded that such obligation arose and that was why the jury awarded special damages in the amount of US$1,042.00. We find nothing in the evidence or the law to form a basis for overturning the special damages awarded.
Every contractual obligation need not be in writing; it may be oral and can be ascertained from a course of dealings between the parties. A contract can even be implied; that is, the contract is created when the facts are such that it is clear that the parties intended to make the contract. 17 AM JUR 2d., Contracts, §§13, 181. Even where the contractual obligation is in writing, it need not be one single writing; it may be in several pieces of writing, which when taken together, can be fairly said to constitute one instrument relating to the contract. Contracts can even be partly written and partly oral. 17 AM JUR2d., Contracts, §§182,183. In the instant case, it is clear that the appellee continued to deposit United States dollars into the savings accounts opened and operated by her because she relied on the contents of the deposit slips to conclude that whenever she came to withdraw United States dollars, she would be paid the United States dollars she deposited. If this is not what appellant intended, it should never have prepared a deposit slip which could cause such reliance and thereby induced the customer to deposit United States dollars into the accounts. The law is that the meaning and effect of that deposit slip should be interpreted against the appellant, who prepared it. 17 AM JUR2d., Contracts, §§347, 348. Moreover, it is an elementary principle of law that a reliance on a representation and the subsequent change of position creates a contractual obligation. More than this, if there was any uncertainty, the contract to pay back the United States dollars deposited was made clear when the appellant actually paid United States dollars from each account in 1989. The appel-lant cannot now claim that it had no obligation to pay United States dollars; it could have only escaped liability if it had shown by deposit and withdrawal slips that the appellee had actually withdrawn all the United States dollars deposited. No such evidence was adduced at the trial to the satisfaction of the jury, and this Court has found none.
The course of transactions or dealings between the parties regarding the deposits into and withdrawals from the two savings accounts of both United States and Liberian dollars constitutes a valid implied contract between the parties. Count 11 of appellant’s bill of exceptions is therefore hereby overruled. Accordingly, this Court holds that the trial court did not err in adjudging the appellant liable to the appellee in the amount of US$1,042.00 as special damages.
We shall now decide the second and final issue in this case, which is, whether or not the verdict of the trial jury awarding the appellee the sum of US$1.5 million as general damages is excessive and grossly disproportionate to the measure of damages?
The appellant alleged in count 15 of the bill of exceptions that the verdict of the trial jury awarding the appellee the amount of US$1.5 million as general damages was not only excessive but was also in violation of the law. The appellant alleged further that the general damages should in no case be in excess of the special damages, and that the general damages should be the necessary and ordinary result of the wrong complained of. It argued that the claim of the appellee to the tune of US$1.5 million as general damages was speculative, in that the appellee had failed to plead the said general damages with particularity by showing the actual losses or damages she incurred as a result of appellant’s conduct, or how such claim for US$1.5 million was directly traceable to appellant’s conduct and how the amount was arrived at. It vigorously maintained also that the appellee had only mentioned the damages in the amount of US$1.5 million but had failed to present any evidence in support thereof. Further, it argued that the award of US$1.5 million as general damages was not in proportion to the actual damages of US$1,042.00 which was claimed by appellee and awarded by the jury as special damages. The appellant asserted that the depositor was entitled only to the actual amount claimed as special damages plus interest agreed to by the appellant, and legal interest which was a part of costs. The appellant therefore prayed this Court to set aside the verdict of the jury and reverse the final judgment of the trial court.
In her brief, the appellee basically contended that the amount of US$1.5 million awarded her by the trial jury could not be considered as speculative because she had suffered irreparable injuries due to appellant’s failure and refusal to allow her to make withdrawals from her life’s savings. She also contended that she had borrowed L$5 ,000 .00 (Liberian dollars) at a monthly interest rate of ten percent (10%) to defray the expenses of her daughter’s wedding, scheduled for May 18, 1992. The appellee argued, additionally, that she had sustained irreparable injury as the result of her father’s death on July 3, 1994, which she attributed to the appellant’s refusal to allow her to make United States dollars withdrawals from her savings accounts which would have enabled her to seek expert medical treatment for him in the Ivory Coast.
The appellee further contended that she had sustained additional losses because she was constrained to purchase US$600.00 on the street on the higher rate of exchange to defray the burial expenses of her late father. She strenuously maintained that the appellant had deprived her of the right to make withdrawals from her savings accounts to purchase drugs and to provide her husband with the necessary diet, which resulted in his subsequent death.
Finally, the appellee argued that the refusal of the appellant to allow her to make withdrawals from her two savings accounts in early May 1992 for her daughter’s wedding, and on May 28, 1992, justified the jury’s award of US$1.5 million for the losses she had sustained, in addition to the humiliation, shame, embarrassment, mental anguish, and pain and suffer-ing due to the conduct of the appellant. She therefore prayed this Court to confirm the final judgment of the trial court.
The first question which comes to the mind of this Court is whether the losses sustained by the appellee were directly traceable to the conduct of the appellant, thus justifying the award of US$1.5 million as general damages? In resolving this issue, we take recourse to the argument of the appellee and the records in this case. In counts 11.2(h) of appellee’s brief, she argued that “defendant refused plaintiff withdrawals on two(2) different occasions. The first was early May 1992 when she went to make a withdrawal for her daughter’s wedding, scheduled to take place on May 18, 1992. The second occasion was on May 28, 1992.”
A recourse to the records shows that on August 19, 1992 the appellee filled in two (2) withdrawal slips for the sums of US$465.00 and US$577.00 from her two (2) saving accounts, which, according to the records, were never withdrawn due to the refusal of the appellant bank. The records are devoid of any evidence indicating two withdrawal slips in early May and on May 28, 1992 in support of the appellee’s claim to losses sustained in relation to her daughter’s wedding on May 18, 1992. We also did not find evidence in the certified records before us that the death of the appellee’s father on July 3, 1994 and the subsequent death of her husband were directly traceable to the wrongful conduct of the appellant. In the case Levin v. Juvico Supermarket, reported in [1975] LRSC 12; 24 LLR 187(1975), this Court held that “general damages are those which are the natural and necessary result of the wrongful act or omission asserted as the foundation of liability.” We hold that where the general damages awarded to the plaintiff by the trial court are not directly traceable to the wrongful conduct or act of the defendant, there is no foundation or justification for liability and hence the losses complained of, as in the instant case, and the claim for damages, will be denied.
With reference to the verdict of the jury, we agree that the jury are the triers of the facts and have the prerogative to determine and award damages to a successful party, but this must be predicated only upon sufficient evidence adduced at a trial; and this Court will not disturb a verdict which is cogent and supportive of sufficient evidence. The record before us clearly shows that the jury awarded the appellee US$1,042.00 as special damages representing the aggregate of her deposit balance in her two (2) savings accounts, and US$1.5 million as general damages for losses sustained by her for pain, mental anguish, and suffering associated with the wrongful detention of her deposit balances.
In Bolado Sawmill v. Diggs, [1975] LRSC 17; 24 LLR 231 (1975), this Court held that” [t]he plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his damages.” However, we find that there was insufficient evidence produced at the trial by the appellee to justify the award or afforded a reasonable basis for awarding her US$1.5 million as general damages, as compared to the special damages of US$1,042.00. Because we do not believe that the appellee met the required burden of proof, we are constrained to withhold our decision in the Bolado Sawmill case, and we hold instead that this Court will not award a plaintiff substantial recovery where he/she has failed to produce sufficient evidence to prove his/her damages.
In the Levin case in [1975] LRSC 12; 24 LLR 187, text at pages 194-195 (1975), this Court held that “[o]rdinarily a verdict will not be set aside as being excessive, but an appellate Court will do so where there is insufficient evidence to support the amount awarded, where the verdict is so grossly disproportionate to the measure of damages; favorable to the successful party will not sustain the inference of fact on which the damages were estimated.”
In the case at bar, there was insufficient evidence to support the amount of US$1.5 million awarded to the appellee. The verdict of the jury is not only excessive but it is so grossly disproportionate to the measure of damages. The testimony of the appellee did not establish the fact upon which the damages were estimated. In Knuckles v. Liberia Trading and Development Bank (TRADEVCO), 40 LLR 515 (2001), decided on July 6, 2001, at the March Term, A. D. 2001, this Court, speaking through Mr. Justice Wright, said: “… that for general damages to be awarded, there must be some evidence of damage or loss and that the award must be somewhat proportionate to the actual damage sustained…” In the case Inter-Con v. Bartuah, decided during the same term of court, we also held that the general damages of US$300,000.00 awarded to Appellee Bartuah was excessive and we accor-dingly reduced the said damages to US$45,000.00 for the injuries the appellee therein had sustained as result of his having been beaten by the appellant in that case.
From the facts and circumstance in the case, analyzed hereinabove, we hold that the appellee is entitled to the special damage of her deposit of US$1,042.00 plus the agreed bank interest rate, as well as the statutory interest rate of six percent (6%) per annum for the wrongful withholding of her deposits. We also hold that the general damages to which she is entitled shall be 100% of the special damages awarded to her.
Wherefore, and in view of the foregoing, it is the considered opinion of this Court that the final judgment of the trial court is hereby confirmed as modified herein. Costs are ruled against the appellant. The Clerk of this Court is hereby ordered to send a mandate to the court below informing the judge presiding therein to resume jurisdiction over the case and to give effect to this opinion. And it is hereby so ordered.

Judgment affirmed with modification.