FILED

September 16, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION

CHARLES SHEPHERD, ) C/A NO. 03A01-9701-CH-00015

)

Appellant, ) BLOUNT CHANCERY

)

v. ) HON. CHESTER S. RAINWATER,

) CHANCELLOR

PERKINS BUILDERS, )

) AFFIRMED AND

Appellee. ) REMANDED

KEVIN W. SHEPHERD, Maryville, for Appellant.

ROBERT N. GODDARD, GODDARD & GAMBLE, Maryville, for Appellee.

O P I N I O N

Franks. J.

Shepherd’s action for breach of construction contract against Perkins

Builders (Perkins) was dismissed at the conclusion of trial by the Chancellor. 

Shepherd has appealed.

Shepherd’s issues on appeal are whether the Trial Judge erred in

dismissing Shepherd’s claim on the grounds that Shepherd “failed to show a material

breach of contract” and whether the Trial Court “incorrectly” limited Shepherd’s

“proof at trial”.

On June 30, 1993, the parties entered an agreement for the construction

of a dwelling house, and Perkins undertook construction. On December 1, 1993,

Shepherd terminated the contract by letter for “failure to comply with agreement”. 
2

Perkins did no further work on the project, and Shepherd contracted with another

builder on December 6, to complete the structure. Shepherd also brought an action

against the other builder for shoddy workmanship in connection with the construction

of the house. 

The Chancellor, in his ruling, concluded that the plaintiff “failed to

show by a preponderance of the evidence” that there was a material breach of the

contract; that plaintiff had condoned the “actions” of Perkins in the beginning, and

noted that the subsequent contract to complete the house was “in accordance with the

original contract documents” and that if the work was not done in accordance to the

contract “then that’s a matter between . . . [Shepherd] and his subsequent contractor.”

Additionally, the Chancellor found that the damages claimed were speculative and

indefinite.

Shepherd argues “that the most significant breach of the contract was

the failure of the contractor to complete the house in a timely manner”, and insists that

the parties intended that the construction of the house would be completed by October

15, 1993. Essentially, Shepherd argues that time was of the essence for the

completion of the house. In this connection, the Chancellor observed:

The parties, in good faith, got together and attempted to work out an

arrangement and agreement for the acquisition, some land and the

construction of a residence home. To say the least, the paperwork in

connection with this transaction is inartfully drawn. Lacking in many,

many respects and really is at the base of this problem that these parties

are having.

The agreement referred to is a boiler-plate form intended as a “contract for the sale of

real estate” with addendums. The agreement provides that the parties would “close”

no later that October 15, 1993.” Possession was to be on the date of closing which

was also conditional under the terms of the contract. Shepherd testified that

construction did not start until September 22, and construction continued

intermittently until Shepherd terminated the contract, when the house was
3

approximately one-third completed. 

In determining whether time is of the essence, the entire agreement is

considered, together with the circumstances of the parties and the subject matter. 

Commerce Street Co. V. Goodyear Tire & Rubber Co., 31 Tenn. App. 314, 215

S.W.2d 4 (1949). Generally, time is not of the essence of a building and construction

contract. 17 ACJS Contracts, §504(2). The evidence establishes that Shepherd was

aware that the construction would not be completed long before the October 15

deadline, but allowed Perkins to continue working after that date, and encouraged

Perkins to complete the job. Under the terms of the written agreement and the actions

of the parties in relation thereto, we conclude that time was not of the essence in this

contract, and that failure to complete by the October 15 date was not a material

breach.

Also, we agree with the Chancellor’s conclusions that the evidence does

not establish a sufficient basis to award damages for defective construction, and as to

any evidence of defects, it is conjectural as to the responsibility for this as between the

contractors.

Finally, Shepherd argues that the Court improperly restricted the

testimony of his witness, Charlie Jones, a home inspector, and asserts:

The Court felt that the testimony in regards to an inspection,

approximately two (2) years after Perkins Builders were discharged

from the contract, was far too removed from the breach in question to be

relevant. He instructed counsel to confine the line of questions to the

particular issue, that being materials furnished to the benefit of the

defendant.

Shepherd concedes that he did not make an offer of the testimony, but asserts what

was excluded was “obvious from the context of the record”, i.e., “the evidence sought

to prove both the fact that the contract was not completed in a timely manner by the

contractors, and that secondly, the work performed was of inferior quality and

workmanship.”
4

The Tennessee Rules of Evidence, Rule 103(a)(2) provides:

Effect of Erroneous Ruling. Error may not be predicated upon a ruling

which admits or excludes evidence, unless a substantial right of the

parties is affected and . . . (2) Offer of Proof. In case the ruling is one

excluding evidence, the substance of the evidence and the specific

evidentiary basis supporting admission were made known to the Court

by offer or were apparent from the context.

Refusing to admit any evidence as to whether the contract was completed in a timely

manner constitutes harmless error, in view of our finding on that issue, and as to the

issue of whether the work was performed properly, such evidence would be factspecific and the familiar rule requiring no citation is applicable, that where an

appellant fails to make an offer of proof we will not reverse a Trial Judge on that 

evidentiary issue.

The judgment of the Trial Court is affirmed and the cause remanded

with the costs of appeal assessed to Charles Shepherd.

________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Don T. McMurray, J.

___________________________

Charles D. Susano, Jr., J.