FILED

April 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

BILL GREENE, ET AL., ) C/A NO. 03A01-9710-PH-00487

)

Plaintiffs-Appellants, ) HAMBLEN CHANCERY

)

v. ) HON. THOMAS R. FRIERSON, II,

) CHANCELLOR

ROBERT TODD EVANS, ET AL., )

) AFFIRMED AND

Defendants-Appellees. ) REMANDED

CLINTON R. ANDERSON, Morristown, for Plaintiffs-Appellants.

J. GREGORY BOWMAN, ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM,

P.C., Greeneville, for Defendants-Appellees.

O P I N I O N

Franks, J.

In this dispute over the construction of a house, plaintiff builders sued

defendant landowners, alleging that owners had not paid the full consideration as

contracted, and defendants filed a counterclaim, asserting that plaintiffs had breached

the contract by failing to complete the construction as required by the terms of the

contract.

The Trial Judge, after hearing the evidence, filed a memorandum
2

opinion finding, inter alia, that plaintiffs had not completed the contract as agreed,

and entered a set-off against their claim resulting in a judgment of $465.36 in favor of

the plaintiffs. The plaintiffs have appealed.

The Chancellor filed a good memorandum opinion and we adopt from

that opinion, as pertinent:

The Defendants, Robert Todd Evans, S.J. Evans, and Kay C.

Evans, purchased Lot 1 of the Helms property located in Hamblen

county, Tennessee by warranty deed dated December 20, 1994, and

recorded in Warranty Deed Book 420, page 183, in the Register’s Office

for Hamblen County, Tennessee, Trial Exhibit 6. By instrument dated

December 22, 1994, Plaintiffs Greene and Epps proposed to furnish

materials and labor necessary for the completion of a 40' x 28' office and

living quarters structure on the above referenced real estate. Defendant

S.J. Evans accepted said proposal in writing, authorizing the

performance of sa id construction. The consideration agreed to be paid

for the construction included $32,500.00 in c ash, transfer of lot 31 in

Dover subdivision, and transfer of all equipment and lights for the Bat

Attack operation formerly conducted on the premises and certain

furniture, including a pool table, occasional tables and lamps, Trial

Exhibit 1. The construction was to be performed according to plans

submitted to Defendant S.J. Evans.

A copy of plans and specifications dated January 4th, 1995,

showing a 40' x 28' struc ture wa s introduced as Trial Exhibit 2. 

Separate plans prepared by Gary L. K. Best, architect, dated March 16,

1995, was introduced as Trial Exhibit 7. These plans depicted a

structure 42' x 28', incorporating no garage. Another set of plans

prepared by Gary L. K. Best, architect, also dated March 16, 1995, was

introduced as Trial Exhibit 10. These plans depicted a structure 60' x

28', incorporating a garage. Construction of the building was begun by

Plaintiffs in March of 1995. Plaintiffs assert that all improvements were

finished in accordance with the contract of June 22, 1995.

Plaintiffs allege that construction of the garage involved a major

change as requested by Defendants subsequent to the execution of the

acceptance of the Proposal above referenced. According to Plaintiffs,

this change order resulted in a modification in the consideration to be

tendered by Defendants. Specifically, Plaintiffs claim that by virtue of

said garage addition, Defendants agreed to pay $32,500.00 cash,

substitute a mobile home for the lot in Dover subdivision and convey

title thereto, tender the above referenced furniture and Bat Attack

equipment as well as convey title to a $2,000.00 storage trailer. No

writing exists evidencing this change in the scope of construction or

increase in consideration to be paid. A copy of a receipt dated May 1,
3

1995, showing the total cash owed as $32,500.00 was introduced as

Trial Exhibit 9. Plaintiffs seek payment of $16,082.00 due and owing

on the contract. Defendants assert that the construction of the garage

was contemplated by all parties from the beginning and tha t all

consideration as required by any contrac t has been paid. Defendants

further assert that due to deficient and uncompleted construction,

Defendants are entitled to recover certain damages from Plaintiffs.

The issues raised in this litigation include (1) whether a contract

was entered between the pa rties regarding the construction of certain

improvements on property of Defendants, (2) if a valid and binding

contract was entered, what were its te rms including the consideration to

be paid, (3) at what point was the construction of the garage

contemplated in connection with said contra ct, (4) have the Defendants

discharged their obligation in full to Plaintiffs relative to sa id

construction and (5) are Defendants entitled to recover any damages

from Plaintiffs in connection with the construction.

. . . 

Conside ring the testimony of witnesses and evidence presented in

this case, the Court specifically finds that the Proposal introduced as

Trial Exhibit 1 constituted an offer and acceptance supported by

valuable consideration thereby creating a valid, binding and enforceable

contrac t betwe en the parties. American Lead Pencil Company v.

Nashville C. & St. L. Ry., 134 S.W. 613 (1911). By its terms, the

contract was for the construction of 40' x 28' office and living quarters

building in return for the consideration recited therein. The Court

further finds that prior to the commencement of the construction, the

parties agreed to add an adjoining garage, approximately 18' x 28', more

particularly shown by plans introduced as Trial Exhibit 10. An

alteration or amendment to an existing contract must be supported by

consideration, Dunlop Tire and Rubber company v. Service

Merchandise Company, Inc., 667 S.W.2d 754 (1983). In order for

mutual promises of parties to furnish consideration necessary to support

modifying agreement, it must contemplate assumption of additional

burdens by both parties, Tampa electric Company v. Nashville Coal

Company, 214 Fed. Supp. 647 (1963). The Court finds that a valid and

enforceable modification of the original contract was ac complished in

this case. In connection with this requested change, the parties agreed to

additional consideration, including $32,500.00 in cash, transfer by

defendants to Plaintiffs of the 14x60 Horton-Summit mobile home in

lieu of the lot in Dover subdivision, and conveyance of certain furniture,

Bat Attack equipment and a $2,000.00 storage trailer. Thought the

parties now dispute the value of said mobile home at the time of the

modification of the amended contract, the Court finds that the value of

said mobile home should be established at $13,500.00, . . .

The evidence presented establishes a finding that Defendants
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paid Plaintiffs $42,500.00 in cash, and conveyed title to the Bat Attack

equipment, furniture and the storage trailer. As Defendants paid an

additional $10,000.00 to Plaintiffs but did not convey title to the subject

mobile home, Plaintiffs are entitled to recover from Defendants under

the contract the amount of $3,500.00. As a set off aga inst this amount,

Defendants claim that they are entitled to recover certain expenses they

incurred due to Plaintiffs’ failure to complete the construction in a

workmanlike manner, see Trial Exhibit 17. The Court determines that

Defendants are entitled to recover from Plaintiffs $612.64 for the

purchase of additional rock, $300.00 for rental of a portable toilet,

$200.00 for wiring and installation of the stove and range hood,

$1,772.00 for preparation of interior walls and $150.00 for wiring of the

hot water heater. Defendants accordingly are entitled to a set off in the

total amount of $3,034.64.

The plaintiffs’ issue on appeal is essentially that “the Trial Court erred

in its finding of fact”.

In this non-jury case our review is de novo upon the record, with a

presumption that the Trial Judge’s findings are correct, unless the evidence

preponderates otherwise. T.R.A.P. Rule 13(d). See also, Hass v. Knighton, 676

S.W.2d 554, 555 (Tenn. App. 1983). 

The Trial Judge’s assessment of the witne sses’ credibility is entitled to

great weight in this Court. Tennessee Valley KAO, Inc. V. Perry, 526 S.W.2d 488,

490 (Tenn. App. 1974). Plaintiff Bill Greene was the only witness testifying for

plaintiffs, and plaintiffs assert that all of the evidence preponderates in favor of

Greene’s testimony. The evidence is sharply disputed as to the extent and value of

certain of the considerations paid under the contract. There a re discrepancies in

plaintiff Greene’s testimony, as well as defendant’s S.J. Evans. However, a receipt

signed by plaintiff Greene as to the consideration to be paid after the modification,

tends to corrobora te defendant’s position. Taking into account defendants’ testimony,

the exhibits and plaintiff’s admission that certain portions of the contract were not

completed as well as the Trial Court’s assessment of the witnesses’ credibility, we
5

cannot say the evidence preponderates against the findings of the Chancellor. 

Accordingly, we affirm the judgment of the Trial Court.

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

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

William H. Inman, Sr.J.