FILED

April 18, 1997

Cecil W. Crowson

Appellate Court Clerk

BILL W. RICKMAN and wife ) C/A No. 01A01-9609-CH-00412

RUTH Y. RICKMAN )

) WILSON CHANCERY No. 8410

Plaintiffs-Appellees )

)

)

v. )

) 

)

JOHN A. MOLIN and wife )

FREDERICKA R. LITTLEFAIR-MOLIN )

)

Defendants-Appellants )

COURT OF APPEALS OF TENNESSEE

MI DDLE SECTI ON AT NASHVI LLE

APPEALED FROM THE CHANCERY COURT OF WI LSON COUNTY AT LEBANON,

TENNESSEE

THE HONORABLE C. K. SMITH, CHANCELLOR

JAMES H. KINNARD 

P. O. Box 667

107 W. Market Street

Lebanon, TN 37087

 Attorney for Plaintiffs-Appellees

MICHAEL A. MEYER 

SIDWELL & BARRETT, P.C.

121 First Avenue, South

Suite 200

Franklin, TN 37064

 Attorney for Defendants-Appellants

AFFIRMED AND REMANDED

Houston M. Goddard, Presiding Judge

CONCUR:

FRANKS, J. 

SUSANO, J. 

 O P I N I O N
2

John A. Molin and his wife, Fredericka R. LittlefairMolin, appeal a judgment rendered against them in favor of Bill

W. Rickman and his wife, Ruth Y. Rickman, in the amount of

$17,314.97. 

The dispute arose in connection with a contract the

parties entered into relative to property the Molins desired to

sell and the Rickmans desired to purchase, which was never

consummated. 

The Chancellor found that the Rickmans were entitled to

recover $15,914.97 expenses in improving the residence located on

the property in question which under the terms of the contract 

they were occupying and renting. In addition, the Chancellor

found the Rickmans were also entitled to the return of $1400 paid

as earnest money.

The Molins appeal raising the following issues:

1. Whether the plaintiff-buyers properly

exercised their purchase option under the lease

purchase agreement at issue, thereby creating a valid

and binding contract.

2. Whether the defendant-sellers could be held

liable for the expenses which the plaintiff-buyers

incurred to improve the property at issue, where the

lease-purchase agreement expressly provided that the

plaintiffs would bear the expense of any improvements

they made to the subject property.

3. Whether plaintiffs are entitled to recover the

costs they incurred to improve the subject property on

a theory of quantum meruit, notwithstanding the

existence of the contract language described in issue

no. 2, above.

4. Whether the Chancellor abused his discretion

in awarding prejudgment interest in this case.
3

The agreement between the parties was drawn by a real

estate agent under the employ of the Molins and is styled,

"CONTRACT FOR SALE OF REAL ESTATE." (See Appendix.) It is on a

printed form (apparently a standard real estate form used by the

realtors) and in almost all particulars appears to be as the

caption designates. The Molins insist that certain verbiage

mandates otherwise. They contend that the content was in fact an

option and, because not exercised, no sales contract was created. 

In support of their contention they rely upon the following

language of the contract: "Letter of intent from Buyer by April

1st 1991 & house can be shown."

The proof by the Molins shows that this letter of

intent was required before the Rickmans were entitled to purchase

the house and that, should it not be given, they were at liberty

to show the house to other prospective purchasers.

The letter of intent was never delivered because the

Molins were unable to correct a problem with the sewage system

and septic tank in accordance with the following provision of the

contract:

Necessary repairs to be made to septic and drain line

and health letter to be provided by seller.

The Chancellor found, and the record supports his

finding, that the Rickmans would have delivered the letter of

intent and purchased the property had the repairs been made to

the septic and drain line and had they received a letter from the
4

Health Department that the problem had been corrected. As a

matter of fact, the real estate agent called by the Molins

testified that the property could not have been financed absent a

letter from the Health Department.

We find that the record supports the proposition that 

the Rickmans did not complete their part of the bargain because--

despite persistent importuning by the Rickmans--the Molins

breached the agreement relative to the sewer problem. Certainly

the Rickmans did not want to purchase the property without the

sewer problem being resolved and, although the proof does not

reflect, it is likely they would have had to borrow money

pledging the property as security to raise the purchase price. 

In any event, we find that whether the instrument be denominated

a contract of sale or, as insisted by the Molins, an option to

purchase, it was breached by the Molins.

With regard to issues two and three, the contract also

contains the following provision:

All cost of redecorating, such as painting, wallpapering, landscaping & carpeting may be done at the

expense of the buyer.

Apropos of these issues, the authors of Am.Jur.2d.,

with appropriate citations, state as a general rule the

following:

§ 704. Repudiation of, or refusal to perform, contract

As a general principle, where one party to a

contract repudiates it or refuses to perform it, the

other party is not obligated to perform his promise,
5

and such nonperformance does not render the other party

liable in damages. Furthermore, a refusal by one party

to perform obviates the necessity of a tender of

performance by the adverse party. A party positively

refusing to perform his contract cannot sue the other

for nonperformance, whether the promises are

independent or not, if one is the consideration for the

other and the contract is wholly executory. A refusal

to accept tender of performance is a breach of contract

excusing a party from further performance of its part. 

Where all the provisions of a contract are so connected

with a party's obligations that when one of them is

repudiated it in effect renders further performance

impossible, the repudiation obviates the necessity of

any tender or further performance on the opposing

party's part.

17A Am.Jur.2d, Contracts, §704, Page 718

In light of the foregoing and because the Molins

originally breached the contract, we conclude that as a result

thereof the Rickmans suffered damages in the amount awarded by

the Trial Court and are entitled to recover that amount, plus the

$1400 earnest money deposited.

In view of our conclusion that the Rickmans are

entitled to damages for the Molins' breach of contract, it is

unnecessary that we address the alternate ground for recovery

mentioned by the Trial Court--quantum meruit. We do note in this

connection, however, that the testimony of the real estate agent

called by the Molins that the improvements made by the Rickmans

did not increase the value of the property was discounted by the

Trial Court, and further that some expenditures were not merely

cosmetic, in that underpinning was done in the basement to insure

the structural soundness of the dwelling.

With regard to the last issue addressing pre-judgment

interest, the Chancellor decreed the monetary award should begin
6

drawing interest on June 15, 1991, the date the Rickmans vacated

the premises. Such an award, which is authorized by T.C.A. 47-

14-123, lies within the discretion of the Chancellor. Under the

facts of this case, we find no abuse of discretion.

For the foregoing reasons, the judgment of the Trial

Court is affirmed and the cause remanded for collection of the

judgment and costs below. Costs of appeal are adjudged against

the Molins and their surety. 
7

_______________________________

Hous t on M. Godda r d, P. J .

CONCUR:

________________________________

He r s c he l P. Fr a nks , J .

________________________________

Cha r l e s D. Sus a no, J r ., J .