FLIGHTLESS-N-BIRD FARM, INC., )
                              )
     Plaintiff/Appellee,          )         Appeal No.
                              )        01-A-01-9803-CV-00126
v.                            )
                              )        Cheatham Circuit
JOSEPH K. DUGHMAN,            )
                              )
                                       No. 4775
                                               FILED
     Defendant/Appellant,     )
                              )                January 21, 1999
v.                            )               Cecil W. Crowson
                              )              Appellate Court Clerk
FLIGHTLESS-N-BIRD FARM, INC., )
JAMES L. NEWELL, JAMES A.     )
NEWELL, CAROLYN NEWELL,       )
and DEBBIE NEWELL,            )
                              )
     Counter-Defendants/      )
     Appellees.               )

             COURT OF APPEALS OF TENNESSEE


    APPEAL FROM THE CHEATHAM 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 FLIGHTLESS-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 ON
      This case represents a contract dispute between a seller and buyer of emus.
Flightless-N-Bird Farm, Inc., was a corporation in the business of raising,
breeding and boarding emus.


      On June 25, 1994, Mr. Dughman purchased a pair of emus from
Flightless-N-Bird Farm, Inc. [FNBF]. The Emu Purchase Agreement, entered
into by the parties does not contain an integration clause. It reads, in pertinent
part, as follows:
             1. Purchase Price. OWNER agrees to pay $30,000.00 for
      the following pair of four year old breeding pair of emus with the
      following micro chip numbers:

             Male 00-0114-FFCD
             Female 00-0063-E321

      OWNER will pay $20,000.00 upon execution of this Agreement.
      OWNER agrees to pay the remaining $10,000.00 within six (6)
      months. However, if the female EMU lays an egg before the
      expiration of the six (6) months, OWNER will agree to pay the
      remaining $10,000.00 within two (2) weeks of the first egg being
      hatched layed upon notice to OWNER.[sic]

             2. Boarding Agreement. OWNER and FNBF have entered
      into a Boarding Agreement executed on the 25th day of June, 1994.
      FNBF shall provide the care, maintenance, and board for the
      breeding pairs pursuant to the Boarding Agreement.

             3. Health. FNBF represents that on the date of purchase the
      breeding pairs are in good health and FNBF knows of no medical
      problems with the birds. Thereafter, OWNER shall be responsible
      for the health of the birds as referenced in the Boarding Agreement.



      This agreement, dated June 25, 1994, contained neither express warranties
nor disclaimers, and contemplated payment in full before December 25, 1994.




      Mr. Dughman and FNBF also entered into a Boarding Agreement
discussed on the same day of entry into the purchase agreement and bearing the
date of June 26, 1994. This Boarding Agreement reads in pertinent part:



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A.    WHEREAS, the Owner has this day purchased, by separate
instrument, one pair 4 year emu, chip no. Female 00-0063-E321
male 00-0114-FFCD from FNBF with the intention of keeping said
emus together as breeding 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. FNBF shall provide care, maintenance
and board for the Breeding Paris [sic]. This care, maintenance and
boarding shall be all inclusive of all reasonably required feed, labor,
housing, incubation, hatching, and other care which may 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 Breeding Pairs, or any chick
or egg produced by such Breeding Pairs, or any error in judgment,
mistake, effect or law, and is hereby released from liability with
respect to the death of the Breeding Pairs or the value of one or
both of the Breeding Pairs.

                               * * *

5.     Production Quantity. No production quantity or quality is
represented or warranted with respect to the Breeding Pairs. In no
case shall FNBF be liable to the Owner for failure of production of
the Breeding Pairs, or a reduction in the production 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 chicks produced by the Breeding Pair, and no
liability shall be attached to FNBF for the health of any eggs or
chicks produced by the Breeding Pairs.

                               * * *

9.     Warranties. Each party hereto represents and warrants to
the other that (I) it has all requisite authority and power to execute,
deliver and perform this agreement; (ii) this Agreement, when
executed and delivered will be the legal, valid and binding
obligation of said party, enforceable in accordance with its terms;
and (iii) he making and performance of this Agreement has been
duly authorized by all necessary action. No other warranties,
including but not limited to warranty of the Breeding Pairs[’]
health, life expectancy or production capabilities are given, express
or implied.

The signatures on this latter instrument are dated June 25, 1994.




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      FNBF filed suit June 14, 1995. Among other items, the complaint alleged
that Mr. Dughman had breached the contract for sale of the emus by failing to
pay the $10,000.00. Mr. Dughman answered and counterclaimed, alleging as
affirmative defenses failure of consideration, breach of express and implied
warranties, and negligent misrepresentation. In his counterclaim for damages,
Mr. Dughman sought rescission of the contract based on breach of implied and
express warranties and violation of the Consumer Protection Act, requesting
treble damages in accordance with Tennessee Code Annotated section 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 verdict in
favor of FNBF in the amount of $10,000.00 and dismissed Mr. Dughman’s
counterclaims. Mr. Dughman appeals the verdict below, raising the following
issues for consideration on appeal:
      1.     Whether the trial court erred, as a matter of law in allowing
             the jury to use the second contract (the Boarding
             Agreement) to modify the terms of the first contract (the
             Emu Purchase Agreement).

      2.     Whether the court failed to instruct the jury that, even had
             there been disclaimers of warranty in the Emu Purchase
             Agreement, and even had these been effective to address a
             claim under the Uniform Commercial Code, disclaimers are
             not affirmative defenses against a claim under the Consumer
             Protection Act.

      3.     Whether the court failed to instruct the jury on “failure of
             consideration”, which was a viable ground for rescinding the
             Emu Purchase Agreement.


      In the interest of brevity and economy the last two issues will be
considered in concert.


I. Interpreting Multiple Writings


      With regard to the first issue on appeal, Appellant Dughman correctly
asserts one well-settled rule concerning multiple instruments. The question of
whether a later contract is independent to or incorporated with a prior written
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.2d


                                        4
27, 35 (1940). Appellant’s strategy is to argue for independent construction of
the instruments. Absent a disclaimer, contracts for the sale of goods carry with
them the implied warranty of fitness for a particular purpose and the implied
warranty of merchantability. In addition, the testimony below reveals assertions
by Mr. Dughman that Tony Newell had made express warranties regarding 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 the Purchase Agreement were
considered in a vacuum, without any disclaimer, the warranties are in force, and
might serve as a valid defense to a suit for nonpayment.


      In the case at bar, however, a jury of twelve persons considered two
writings, executed contemporaneously and concerning the same or similar
subject matter, with a view toward giving full effect to both writings. The
question to be answered in this case is whether the parties intended the different
documents to be considered in harmony with each other. See Stovall v. Battel,
619 S.W.2d 125 (Tenn. App. 1981). The jury instructions adequately address
this question of intent:
      A contract can be made up of several different documents if the
      parties intended that the various documents would be one contract.

                                      ***

      In interpreting the contract issues, you must construe the contract
      as written and cannot create a new contract for the parties. You
      cannot void or rewrite contracts just because they are ill-advised,
      the parties miscalculate future events, because the terms are harsh
      or because one of the parties is unwise in agreeing to them.

The instruction adequately commended the matter to the jury’s consideration for
a finding of fact. The jury apparently construed the writings in harmony and
rendered the verdict from which Mr.Dughman appeals. Review of findings of
fact by a jury in civil actions shall be set aside only if there is no material
evidence to support the verdict. Smith v. Scott Lewis Chevrolet, Inc., 843
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 jury verdict
with regard to the intent of the parties. Mr. Newell testified:
      Q.     Mr. Newell, I hand you a set of documents there. Can you
      identify those documents for me?

                                        5
      A.  This document right here is the contract -- that [Mr.
      Dughman] signed when he bought the birds.

      Q.     Is that the one that says Emu Purchase Agreement on top of
      it?

      A.    Yes, sir. The Emu Purchase Agreement. Here. This is the
      contract that he drew up for us.

      Q.   And the next part -- portion of that set is the boarding
      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 because I guess he lives in the 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 split the chicks and stuff at the end of the
      season. So he bought the birds and signed this contract, and then
      he signed this contract as a boarding agreement that -- that we
      would keep them and take care of them and feed them and keep
      them penned and everything.

      Q.    Now, was that all discussed at the same time, that he would
      purchase them, and that you would board them?

      A.    Yeah. He wanted to buy a pair of birds from us. He was
      going to purchase them, and he wanted us to keep the birds on the
      farm.

      Q.     Now, were these agreements entered into at the same time?

      A.     One says the 25th and one says the 26th but it was -- it was
      in that same period.

      Q.    Now was it your understanding that this was all contemplated
      as one transaction?

      A.     Oh, yes. I mean it was -- we talked 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 boarding contract
      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 consider these contracts
in harmony, for it is equally well settled that when two instruments are shown
to be part of the same transaction, they will be read together, each with reference
to the other. Real Estate Management v. Giles, 41 Tenn. App. 347, 352, 293

                                        6
S.W.2d 596, 599 (1956).


      II. Jury Instructions


      The next two issues require an analysis of the sufficiency of the trial
court’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 Appellant’s first
issue on appeal regarding jury instructions, Mr. Dughman asserts that the court
failed to instruct that negligent acts can support a claim under the Tennessee
Consumer Protection Act. The actual jury charge reads in pertinent part:
            A person may violate the Consumer Protection Law without
      having done so willfully or knowingly. The Court can only
      consider treble damages if you determine that the plaintiff willfully
      or knowingly violated the law.

             A person willfully violates this law when the person
      intentionally or consciously uses an unfair or deceptive practice or
      act prohibited by the law. A person knowingly violates this law
      when the person uses an unfair or deceptive practice or act
      prohibited by the law with actual awareness that the practice or act
      is false or deceptive. Actual awareness may be inferred when the
      circumstances, viewed objectively, would indicate that a reasonable
      person would have known, or have reason to know, of such falsity
      or deception. Recovery under the Tennessee Consumer Protection
      Act is not limited to intentional acts, but also contemplates
      negligent conduct.


      The trial court clearly instructed as Mr. Dughman requested below.


       With regard to Appellant’s second issue concerning jury instructions, Mr.
Dughman asserts as error the failure of the trial court to instruct the jury on
“failure of consideration.” It appears from our view of the record, that Mr.
Dughman failed to request any instruction regarding this affirmative defense,
which must be pled specifically at the outset. Tenn. R. Civ. P. 8.03 (1998). The
record is devoid of any evidence that Dughman objected to the inaccurate jury
charge prior to his Motion for New Trial. Dughman then alleges an inadequacy
of the general charge on the elements of contract. In the absence of an objection
or special jury instruction request, a party may not raise an omitted jury charge

                                       7
as grounds for error on appeal. Tenn. R. Civ. P. 51.02 (1998); Rule v. Empire
Gas Corp., 563 S.W.2d 551, 554 (Tenn. 1978).


      The court’s instruction as a whole addressed the consideration which
passed between the parties.      The written instruments at issue recited the
consideration 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 consideration on the disputed agreement, the jury could
necessarily infer from the instruction as a whole that if any of the requirements
of contract were absent, a contract would not exist, and therefor a breach of that
contract would not exist.


      When viewed as a whole, the instructions of the trial court were adequate.
These questions of fact, submitted to and decided by a properly instructed jury,
should not be undermined in this court. In accordance with the authorities cited
above, the decision of the trial court on the jury verdict should be and is hereby
affirmed. The cause is remanded for such further proceedings as are necessary.
Costs on appeal are taxed against Appellant, Dughman.


                                             ______________________________
_
                                             WILLIAM B. CAIN, JUDGE




CONCUR:


_______________________________________
WILLIAM C. KOCH, JR., JUDGE


_______________________________________
HENRY F. TODD, JUDGE




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