# FILED
January 21, 1999 Cecil W. Crowson Appellate Cou rt Clerk FLIGHTLESS-N-BIRD FARM, INC., ) ) Plaintiff/Appellee, ) Appeal No. ) 01-A-01-9803-CV- 00126 v. ) ) Cheatham Circuit JOSEPH K. DUGHMAN, ) No. 4775 ) Defendant/Appel

lant, )

) v. ) ) FLIGHTLESS-N-BIRD FARM, INC., ) JAMES L. NEWELL, JAMES A. ) NEWELL, CAROLYN NEWELL, ) and DEBBIE NEWELL, ) ) Counter-Defenda

nts/ ) Appellees. )

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHEA THAM COUNTY CIRCUIT COURT AT ASHLAND CITY, TENNESSEE
THE HONORABLE ROBERT E. BURCH, JUDGE

GARY M. EISENBERG 2417 Bell Street P. O. Box 70 Pleasant View,

Tennessee 37146 ATTORNEY FOR FLIGH TLESS-N-BIRD FARM, INC.

JEFFREY L. LEVY 315 Deaderick Street 2075 First American Center Nashville, Tennessee 37238-2075 ATTORNEY FOR JOSEPH K. DUGHMAN

AFFIRMED AND REMANDED
WILLIAM B. CAIN, JUDGE 

## O P I N I O N2 This case represents

a contract dispute be

tween a seller a

nd buyer of

emus. Flightless-N-Bird Farm, Inc., was a corporation i n th e bus iness of raising, breeding and board ing emus.

On June 25 , 199 4, Mr. Dughman pur chased a pair of em

us from Flightless-N-Bird Farm, Inc. [FNB F]. The Emu Purchase Agreement, entered into by the parties does not contain an inte gration clause. I

t reads, in pertinent part, as follows:

1

. Pu rchase Price

. OWNER agrees to pay $30,000 .00 for the following pai r of

four year old bree

ding pair of emus wit

h the following micro chi

p numbers: Male 00-0114-FFCD Female 00-0063-E321
OWNER will pay $20,000.00 u

pon execution of this A

greement. OWNER agrees to pay the remaining $10,00 0.00 within six (6) months. However, if the female EMU lays an egg before t h e ex piration

of the six (6) month s, OWNER will agree to pay th e remaini ng $10,000.00 within tw o (2) weeks of the f

irst egg being hatched layed upon notice to OWNER

. [sic] 2. Boarding Agreement

. OWNER and FNBF have entered into a Boarding Agreem

ent executed on the 25t

h day of June, 1994. FNBF shall provide the care, mainte nance, and board f or the breeding pairs pur suant to the Boardi ng Agreement.
3. Health

. FNBF represents thaton the date of purcha se the breeding pairs are in good health and FNBF knows of nomedical problems with the birds. Thereafter, OWNER shall beresponsible for the health of the

birds as referenc

ed in theBoarding Agreeme nt.

This agreement, dated June 25, 1994, contained neither express warranties
nor disclaimers, and contemplated payme nt in full before De

cember 25, 1994.

Mr. Dug hman and FNBF also entered into a Boar

ding Agreement discussed on the same day of ent ry into the purchase a

greement and bearing

the date of June 26, 1994.This Boarding Agr eement reads in per

tinent part:3 A. WHEREAS , the Owner has this day purchased, by separ ate instrument, one pair 4 year e mu , chip no. Female 00-0063-E 321 male 00-0114-FFCD from FNBF with the intention of keeping said emus together as bree di ng pairs on FNBF , located at 2255 Bearwallow

Road, Ashland City , Tennessee 37015 (Both emu pairs are hereinafter referred to as the “Breeding Pairs” ). * * * 2. Board and Care. FNB F shall provide care, maintenance and board for

the Breeding Pari s [sic] . This care, maintenance and boarding shall be all inclusive of all reasonably

required feed, labor, housing, incubati on, hatching, and other care which m ay reasonably and normally be required in the maintenance of such Breeding Pairs and all eggs and chicks produced therefrom. FNBF shall not be liable for the loss of, or injury to the Breedin g P airs, or any

chick or egg produced by such Breeding Pairs, or any error in judgment, mistake, effect or law,

and is hereby released f rom liability with respect to the death of the Bre e ding Pairs or the val ue of one or both of the Breeding P

airs. * * * 5. Production Qua

ntity. No production quantity or quality is represented or warranted with respect to the Breeding Pairs. In no case shall FNBF be liable to the Ownerfor failure of

production of the Breeding Pairs, or a

reduction in the produc

tion of the

Breeding Pairs. 6. Health. No representation is herein made, or warrant given by FNBF , express or implied, as to the health of the Breeding Pairs or the eggs or the ch icks pro duced by the Breeding Pair, and no liabilityshall be attached to F NBF for the health of an y eggs or chicks produced by the

Breeding Pairs. * * * 9. Warranties.

Each party he

reto represe

nts and warrants to the other that (I) it

has all requisite authority and powerto execute, deliver and perform this agreement; (ii) this Agreement, when executed and delivered w ill be the legal, valid and binding obligation

of said party, enforceable in accordance wi

th its terms; and (iii) he making and p erformance of th

is Agr eement

has been duly authorized by all necessary action. No other war ra nties, in cludin g but not limited to warranty of the Breeding Pairs[’] health, life expectancy or production capabil ities are given, e

xpress or implied. The signatures on th is latter instrumen t are dated June 25, 19 94.4 FNBFfiled suit

June 14, 1995. Among other items, the complaint alleged that Mr. Dughman had breached the contract for sale of the emus by failin

g to pay the $10,000.00. Mr. D ughman answered and counterclaimed, alleging as affirmative

defenses failure of consideration, breach of express an d im plied warranties,and negligent misrepr esentation. In his c

ounterclaim for da

mages, Mr. Dughman sought rescission of the contract based on breach of implied and express warranties and vi olation of the Consume

r Protection Act,

requesting trebleda m ages in accordance with Tennessee C

ode Annotated secti

on 47-18- 109. Tenn. Code Ann.§ 47-18-101, et seq.The cause was tried before a jury June 5-6, 1994. After

receiving their

instructions, the jury returned a verdictin favor of FNBF in the amount of $10,000.00 and dismissed Mr. Dughman’s
cou nte rclaims. Mr. Dughman appe als the verdict below , raising the follow ing issues for considera

tion on appeal: 1. Whether the trial

court erred, as a matter of law i n allowing the jury to use the second contract (the Boarding Agreement ) to modify the term s of the first contra ct (the Emu Purchase Agreement). 2. Whether

the court failed to i

nstruc t th e jury that, even had there been disclaim

e rs of warranty in the Emu Purchase Agreement, and even had these be en effective to ad

dress a claim under the Uniform Commercial Code, disclaimers are not affirmative

defenses against

a claim under the Consumer Protection Act. 3. Whether

the c ourt fa iled to instruct the ju ry on “failure of consideration”, which was a viable ground for rescindin g the Emu Purchase Agreement.

In the interest of bre

vity and economy the la st two issues will be considered in concer

t. I. Interpreti

ng Multiple Writ

ings

With regard to the first issue on appeal, Appellan t Du ghman correctly asserts one well-settled rule concerning mul tiple instruments. The question of whet her a later contract is independent to or incorporated with a prior w ritte n agreement

is to be determined by

the intention of

the parties as expressed in the later agreement. Frierson v. Int’l Agric. Corp. , 24 Tenn. App. 616, 148 S.W.2d5

27, 35 (1940). Appellant’s strat egy is to argue for in

dependent constructi

on of the instruments. Abse

nt a disclaimer, contr

acts for the sale of

goods carry with t hem the implied warra

nty of fitness for a particular purpose a nd th e implie d warranty of merchantability. In addition, the tes timony below revea

ls assertions by Mr. Dughman that

Tony Newell had m

ade express warranties rega rding the
emus in question. The Emu Purchase Agreement contained no such disclaimer. The Boarding Agreement, which in turn referenced the contemporaneous Emu Purchase Agreement, contained the disclaimers. If t he Purchase Agreement were considered in a vacuum, withou t any disclaimer, the warranties a re inforce, and might serve as a valid defense to a suit for n onpayment.

In the case a t bar, however, a jury of twel ve persons consid ered two writings, executed contemporaneously and concerning the same or similar subject matter, with a v

i ew towar d giving full effect to both writings. T

he question to be answered in this case is whether the parties intended the differ ent documents to be considered in harmony with each other. See Stovall v. Battel , 619 S.W.2d

12 5 (Tenn. App. 198 1). The jury instr uctions adequately ad

dress this question of intent: A contract can be ma

de up of several dif

ferent documents i

f the parties intended that the var ious documents would

be one contract. * * * In interpreting the contract issues, you must construe the co n tract as written and cannot

create a n ew contract for t he parties. You cannot void or rewrite c

on tracts just because they ar e ill-advised, the parties miscalcul

ate future events, because the terms areharsh or because one of the parties is unwise in agreeing to them. The instruction

adequately commend

ed the matter to the

jury’s consideratio

n for
a finding of fact. T

he jury app ar ently construed the w ritings in harmony and rendered the verdict from which Mr.Dughman appeals. Review of f indings of fact by a jury in

civil a ctions shall be set aside only if there is no material evi dence to support the verd ict. Smith v. Scott Lewis Chevro let, Inc. , 84 3 S.W.2d 9, 13 (Tenn. App. 1992); Tenn. R. App . P. 13 (1998-99). The testimony of Appellee, James Anthony Newell, provides ample basis for the j ury v erdict with regard to the i

ntent of the parties . Mr. Newell testified: Q. Mr. Newell, I hand you a set of d ocuments there. Can you identify those documents for me?6 A. This document right here is the contract -- that [Mr. Dughman] signed whe

n he bought the birds. Q. Is that the

one that says Emu Pur

chase Agreement

on top of it? A. Yes, sir. The Emu Pu rcha se Agreement. H ere. This is the contract that he dr

ew up for us. Q. Andthe next part -- porti on of that set is the boa rding agreement? A. Yes, sir. This is the boarding agreement. Now [Mr. Dughman] not only

wanted to buy the birds, he wanted us to keep the birds on our

farm becau se I guess he lives in t he city and did own a place to put them.[sic] So he wanted us to keep them on our farm and raise the birds for him. And we were going to raise them, and we was going to sp

lit t he chicks and stuff a t the end of the season. So he bought th e birds and signed this contract, and then he signed this cont ract as a boarding agre ement that -- that we would keep them and take car e of them and feed them and keep them penned and ever

ything. Q. Now, was that

all discussed at the same time, that he would purchase them, and that you would board them? A. Yea h. He wanted to buy a pair of birds from us. He was going to purchase them, a nd he wanted us

to keep the birds on the farm. Q. Now, were these agreements entered into at the same time? A. One says the25th and one saysthe 26th but it was -- it was in that same period. Q. Now was it your understanding that this was all contemplat e d as one transaction? A. Oh, yes. I mean it wa s -- we talk

ed about it at supper. I mean he bought the birds and wanted us to keep the birds

. And we talked about how much the birds would be and -- and he agreed to draw the contract up for that. I already had a boar ding contra ct here. So he said we’ll go with this boarding contract, and you keep the birds for me.

A fortiori, the court

below had no choice but to cons ider these contrac

ts i n harmony, for it is e

qually well settled that when two instr uments are show

n to be part of the same transaction, they will be read together, each withreference to th e other. Real Estate Managem ent v. Giles, 41 Tenn. App. 347, 352, 2937

S.W.2d 596, 599 (1956). II. Jury Instructions

The next two issues requi re an analysis of the

sufficiency of the tri al
c ourt’ s jury charge. This court will not invalidate jury instructions as long as those instructions accurately and fairly describe the issues before the jury. See Street v. Calvert, 541 S.W.2d 576, 584 (Tenn. 1976); Sasser v. Averitt Express, Inc., 839 S.W.2d 422, 430 (Tenn. App. 1992). With regard to Appe llant’s first issue on appeal regarding jury instructions, Mr. Dughman asserts that the court failed to instruct t hat negligent acts can support a claim under the Tennessee Consumer Protecti

on Act. The act

ual jury charge re

ads in pertinent part : A person may violate th

e Consumer Protec

tion Law without ha ving done so willfully or kn owingly. The Cour

t can onl y consider treble

damages if you

determine that the

plaintiff willfull

y or knowingly vio lated the law. A person willfully viol a tes thi s law when the per son intentionally

or consciously uses an unfair or deceptive

practice or actprohibit ed by the law. A person knowingly violates this law when the person uses an unf air or dec eptive practice or act prohibited by the law with actual awareness that the practice or act is fal se or deceptive. Ac tual awareness m

ay be inferred wh

en the circumstances,

viewed objective

ly, would indicat e that a reasonable personwould have known, or have reason to know, of such falsity or deception. Recove

ry under the

Tennessee Consume

r Protection Act is not limited to i ntentional acts, b ut also contemplates negligent conduct. The trial court clearly instructed as Mr. Dugh man requested below. With regard to Appellant’s second issue concerning jury instructions, Mr. Dughman asserts as error the failure of the

trial court to instr

uct th e ju ry on “failure of consideration.” It appears from our view of the rec ord, th at Mr. Dughman failed to request a ny inst ructi on regarding this affirmative defense, which must be pled specifi cally at the outset

. Tenn. R. Civ. P. 8.03 (1998). T he record is devoid of any evidence that Dughman objecte d to the inaccurate jury charge prior to his Motion for New Trial. Dughman then alleges an inadequacy of the general charg

e on the elements of contra ct. In the absence

of an objection
or special jury instruc

tion request, a par

ty may not raise an omitted jury charge8

as grounds for error

on appeal. Tenn. R. Civ. P. 51.02 (1998); Rule v. Empire Gas Corp., 563 S.W.2d 551, 554 (Ten n. 1978).

The court’s instruction as a w hole addressed the consideration which pass ed between the parties. The written instruments at issue reci ted th e consideratio n which was to have passed between the parties. Although, as Appellant argues in its brief, the court did not instruct specifically on the effect of a failure of considera tion on t he disputed agreeme nt, the jury could necessarily

infer from the

instruction as a whol

e that if any of

the requirements of contract were a

bsent, a contract would not exist, and therefor a breachof that contract would not exist.

When viewed as a

whole, the

instructions of the trial court were adequate. Thesequestions of fact, submitted to and decide d by a properly instructed

jury, shouldnot

be undermined in this court. In accordance with the authorities cited above, the decision of the trial court on the jury verdict sho uld be and is hereby affirmed. The cause

is remanded for suc

h further proceedi

ngs as are necessar

y. Costs on appeal are t

axed against Appell

ant, Dughman.

______________________________

_ WILLIAM B. CAIN, JUDGE

CONCUR:

_______________________________________ WILLIAM C. KOCH, JR., JUDGE

_______________________________________ HENRY F. TODD, JUDGE