# FILED

April 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BILL GRE ENE , ET A L., ) C/A NO. 03A01-9710-PH-00487 ) Plaintiffs-Appellants, ) HAMBLEN CHANCERY ) v. ) HON. T HOM AS R. FR IERSON , II, ) CHANCELL OR ROB ERT TOD D EV ANS , ET A L., ) ) AFFI RMED AND Defendants-Appellees. ) REMANDED

CLINTO N R. AND ERSON , Morristown, for Plaintiffs-Appellants. J. GRE GORY BOWMAN, ROGERS , LAUGHLI N, NUNNALLY,

HOOD & CRUM, P.C., Greeneville, for Defendants-Appellees.

O P I N I

O N

Franks, J.

In this dispute over the const ruction of a house,plaintiff bui lders sued defendant landowners, a lleging that

owners had not paid the ful l considerat

ion as contracted, and defendants filed a counterclai m, asserting t

hat plainti

ffs had breached the contract by

failing to compl

ete the constr

uction as requi

red by the t

erms of the

contract. The Trial Judge, aft er hearing the evi

dence, filed a memorandum2

opinio n findin g, inter alia , that plai ntiffs had not comple

ted the contrac

t as agreed, and entered a set- off against thei r claim resul

ting in a judgment

of $465.36 in favor of the plainti

ffs. The plaint

iffs have appealed. The Chancellor filed a good memorandum opinion and we adopt from that opinion , as pertinent:

The Defe

ndant s, Rob ert T odd Eva ns, S .J. Evans,

and Kay C. Evans, purchased Lot 1 of t he Helms property l

ocated in Hamblen county, Tenness ee by warranty deed dated December 20, 1994, and recorded in Warranty

Deed Book 420, page 183, in the Regist er’s Office for Hamblen County, Tenness ee, Trial Exhibi t 6. By inst

rument dated December 22, 1994, Plaintiffs Greene and Epps proposed to furnish materials and l

abor necessary

for the completion of a 40' x 28' offi ce and living quart

ers struct ure on the above refer

enced real esta

te. Defendant S.J. Evans accepted said proposal i n writing, aut

horizing the perform ance of sa id construc tion. The co nsideration a greed to be paid for the con struction inclu ded $32 ,500.00 in c ash, transfer o f lot 31 in Dover subdivision,and transfer of al l equipment and lights for the Bat Attack op eration form erly conducte d on the pr emises an d certain furniture,including a pool t able, occasi onal tables and lamps, Trial Exhibit 1. The const

ruction was to be per

formed according to pl ans submitted to Defendant S.J. Evans. A copy of plans and speci fications dat

ed January 4th,

1995, show ing a 40 ' x 28' struc ture wa s introdu ced as T rial Exh ibit 2. Separate plans pr

epared by Gary

L. K. Best, archi

tect, dat ed March 16, 1995, was introduced as Trial Exhibit

7. These plans depicted a structure 42'

x 28', incor

porating no garage. Another set of plans prepared by Gary

L. K. Best, archi

tect, al so dated March 16, 1995, was intro duc ed as Tria l Exh ibit 1 0. Th ese p lans dep icted a stru ctur e 60 ' x 28', incor

porating a garage.Construction of t he building was begun by Plaintiffs in March o f 1995. Plaintiffs assert that all improv ements were finished in accor

dance with the contr

act of June 22, 1995. Plaintiffs allege that

constructi on of the garage invol ved a major change as requested by

Defendants subsequent t o the execution of t

he acceptance of the Proposal above referenced. According to Plaintiffs, this change order

resulted i

n a modification i

n the considerat

ion to be tendered by Defendants. Specifical ly, Pla intiffs claim that by vi

rtue of said garage addit

ion, Defendants agree

d to pay $32,500. 00 cash, substitut e a mobile home for the lot in Dover subdivis ion and convey title t hereto, tende

r the above refere

nced furniture and Bat

Attack equi pment as wel l as conv ey t

itl e to a $2,0 00.0 0 storag e trailer. No writing exist

s evidencing thi s change in the scope of c onstruction or increase in cons ideration t o be paid. A copy of a re ceipt dated May 1,3 1995, showing the tot

al cash owed as $32,500.00 was i ntroduced as Trial Exhibit

9. Plainti

ffs seek payment of $16, 082.00 due and owing on the contract.Defendants assert t hat the constr

uction of the gara

ge was con templated b y all parties from the beginn ing and tha t all consideratio n as require d by any contrac t has been p aid. Defe ndants further asser

t that due to de

ficient and uncomplet

ed construction, Defendants are entitled to recover certain damages from Plaintiffs. The issues rais ed in this l itigati on include (1) whether

a contract was ente red betw een the pa rties regarding the constru ction of ce rtain improvements on propert y of Defendants, (2) if a valid and bi nding contract w as entered, w hat were its te rms includ ing the con sideration to be paid, (3) at

what point was the const ruction of the gar

age contemp lated in con nection w ith said contra ct, (4) have th e Defen dants discharged their obligation in full to Plain tiffs relative to sa id constructi on and (5) are Defendants ent itled to r ecover any damages from Plaintiffs

in connection wit

h the construct

ion.

. . . Conside ring the testim ony of witn esses and e vidence p resented in this case, the Court specifi cally fi nds that the Propos al introduced as Trial Exhibit

1 constitut

ed an offer and acceptance s upported by valuable co nsideration th ereby creating a valid, bindin g and enf orceable contrac t betwe en the p arties. American Lead Pencil Company v. Nashville C. & St

. L. Ry. , 134 S.W. 613 (1911). By its terms,

the contract was for the co nstruction of 40' x 28' office an d living quarters building in return for the con sideration recited therein. The C ourt further finds t

hat prior t

o the commencement of the constr uction, the parties agreed to add an a djoining garage, appro ximately 18' x 28', more part icul arly shown by

plan s intro duce d as T

ria l Exhibit 10. An alterati on or amendment to an exist ing contract must

be supported by consid eration, Dunlop Tire and Rubber company v. Service Merchandise Company, Inc. , 667 S.W.2d 754 (1983). I n order for mutual promises of parties to furnish consideration n ecessary to support modifying agreement, it must cont emplate assumption of

additional burden s by both p arties, Tampa electric Company v. Nashvil le Coal Company , 214 Fed. Supp. 647 (1963).The Court finds that a valid and enforcea ble modif ication of the original con tract was ac complishe d in this case. In co nnection w ith this reques ted chang e, the parties ag reed to additional c onsiderati on, including $32, 500.00 in cash, t ransfer by defenda nts to Plaintiff s of the 14 x60 Ho rton-Sum mit mobile h ome in lieu of the lot

in Dover subdivision, and conveyance of ce rtain furni

ture, Bat Attack equipment and a $2, 000.00 storage t railer. Thought the parties now disput

e the value of said mobile home at the ti me of the modification of t

he amended contract, the Court finds t hat the value of said mo bile hom e shou ld be es tablishe d at $13 ,500.00 , . . . The evid ence prese nted establish es a finding that Defe ndants4 paid Plainti

ffs $42,500.00 in cas

h, and conveyed t

itle to t he Bat Attack equipment, furni

ture and the st

orage trail

er. As Defendants paid an additional $10, 000.00 to Plaint iffs but did not

convey tit

le to the subj ect mobile home, Plaint

iffs are enti

tled to recover

from Defendants under the contrac t the amou nt of $3,50 0.00. As a set off aga inst this amou nt, Defendants claim that

they are ent

itled to r ecover certai

n expenses they incurred due to Pl aintiffs’ failure to compl ete the constr

uction in a work manlik e man ner, see Trial Exhibit 17. The Court determines that Defendants are enti

tled to recover

from Plaintiffs

$612.64 for the purchase of addition al rock, $30 0.00 for ren tal of a portab le toilet, $200.00 for wiring and i nstallat ion of the stove and r

ange hood, $1,772.00 for prepar

ation of inter

ior walls and $150. 00 for wiring of the hot water heater.Defendants accordingl y are enti tled to a set

off in the total amount of $3, 034.64. The plaintiffs ’ issue on appeal i s essential ly that “the Trial Court

erred in its fi nding of fact”. In this non-jury case our review is de novo upon the record, wit h a presumption that

the Trial Judge’ s findings are cor rect, unles s the evidence
prepon derates otherw ise. T.R .A.P. R ule 13( d). See also , Hass v. Knighton, 676 S.W.2 d 554, 5 55 (Te nn. Ap p. 1983 ).

The Tria l Judge’s as sessment o f the witne sses’ credibility is en titled to great w eight in t his Co urt. Tennessee Valley KAO, Inc. V. Perry , 526 S.W.2d 488, 490 (Tenn. App. 1974). Plai ntiff Bill Gree

ne was the only wit

ness testi fying for plaintiffs , and plainti

ffs assert t

hat all of the

evidence preponderat

es in favor of Greene’s testi

mony. The evidence i s sharply di sputed as to the extent and value of certain of the consideratio ns paid un der the con tract. There a re discrepan cies in plaintiff Gree

ne’s testi mony, as well as

defendant’s S.J. Evans. However, a receipt signed by plai

ntiff Greene as to t

he consideration to be paid after the modification, tend s to c orro bora te de fend ant’ s pos ition . Tak ing i nto a ccou nt de fend ants ’ test imo ny, the exhibits

and plaintiff

’s admission t

hat certain por

tions of the cont

ract were not compl ete d as well a s th e Tri al Co urt ’s a sses sment of th e wit ness es’ cred

ibi lit y, we5

canno t say the ev idence prepon derates agains t the find ings of the Ch ancello r. Accord ingly, we affirm the judgm ent of the T rial Court.

The cause is remanded with cost of the appeal assessed to appellants.

__________________________ Herschel P. Franks, J. CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William H. Inman, Sr.J.