                IN THE COURT OF APPEALS OF TENNESSEE             FILED
                                  AT KNOXVILLE                        April 30, 1998

                                                                Cecil Crowson, Jr.
                                                                 Appellate C ourt Clerk




BILL GRE ENE , ET A L.,                   ) C/A NO. 03A01-9710-PH-00487
                                          )
       Plaintiffs-Appellants,             ) HAMBLEN CHANCERY
                                          )
v.                                        ) HON. T HOM AS R. FR IERSON , II,
                                          ) CHANCELLOR
ROB ERT TOD D EV ANS , ET A L.,           )
                                          ) AFFIRMED AND
       Defendants-Appellees.              ) REMANDED




CLINTO N R. AND ERSON , Morristown, for Plaintiffs-Appellants.

J. GREGORY BOWMAN, ROGERS, LAUGHLIN, NUNNALLY, HOOD & CRUM,
P.C., Greeneville, for Defendants-Appellees.




                                     O P I N IO 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
opinio n findin g, 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
               perform ance of sa id construc tion. The co nsideration a greed to be paid
               for the con struction inclu ded $32 ,500.00 in c ash, transfer o f lot 31 in
               Dover subdivision, and transfer of all equipment and lights for the Bat
               Attack op eration form erly conducte d on the pr emises an d 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,
               show ing a 40 ' x 28' struc ture wa s introdu ced as T rial Exh ibit 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
               intro duced as Tria l Exh ibit 1 0. Th ese p lans depicted a stru cture 60' x
               28', incorporating a garage. Construction of the building was begun by
               Plaintiffs in March o f 1995. Plaintiffs assert that all improv ements 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,


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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 con templated b y all parties from the beginn ing and tha t all
consideratio n as require d by any contrac t has been p aid. Defe ndants
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 ente red betw een the pa rties regarding the constru ction of ce rtain
improvements on property of Defendants, (2) if a valid and binding
contract w as entered, w hat were its te rms includ ing the con sideration to
be paid, (3) at what point was the construction of the garage
contemp lated in con nection w ith said contra ct, (4) have th e Defen dants
discharged their obligation in full to Plain tiffs relative to sa id
construction and (5) are Defendants entitled to recover any damages
from Plaintiffs in connection with the construction.

...

        Conside ring the testim ony of witn esses and e vidence p resented in
this case, the Court specifically finds that the Proposal introduced as
Trial Exhibit 1 constituted an offer and acceptance supported by
valuable co nsideration th ereby creating a valid, bindin g and enf orceable
contrac t betwe en the p arties. American Lead Pencil Company v.
Nashville C. & St. L. Ry., 134 S.W. 613 (1911). By its terms, the
contract was for the co nstruction of 40' x 28' office an d living quarters
building in return for the con sideration recited therein. The C ourt
further finds that prior to the commencement of the construction, the
parties agreed to add an a djoining garage, appro ximately 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
consid eration, 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 n ecessary to support
modifying agreement, it must contemplate assumption of additional
burden s by both p arties, Tampa electric Company v. Nashville Coal
Company, 214 Fed. Supp. 647 (1963). The Court finds that a valid and
enforcea ble modif ication of the original con tract was ac complishe d in
this case. In co nnection w ith this reques ted chang e, the parties ag reed to
additional consideration, including $32,500.00 in cash, transfer by
defenda nts to Plaintiff s of the 14 x60 Ho rton-Sum mit mobile h ome 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 mo bile hom e shou ld be es tablishe d at $13 ,500.00 , . . .

       The evid ence prese nted establish es a finding that Defe ndants


                               3
               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 contrac t the amou nt of $3,50 0.00. As a set off aga inst this amou nt,
               Defendants claim that they are entitled to recover certain expenses they
               incurred due to Plaintiffs’ failure to complete the construction in a
               work manlik e man ner, see Trial Exhibit 17. The Court determines that
               Defendants are entitled to recover from Plaintiffs $612.64 for the
               purchase of addition al rock, $30 0.00 for ren tal of a portab le 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

prepon derates otherw ise. T.R .A.P. R ule 13( d). See also, Hass v. Knighton, 676

S.W.2 d 554, 5 55 (Te nn. Ap p. 1983 ).

               The Tria l Judge’s as sessment o f the witne sses’ credibility is en titled to

great w eight in t his Co urt. 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 consideratio ns paid un der the con tract. There a re discrepan cies 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,

tend s to corro bora te de fend ant’s pos ition . Tak ing into a ccou nt de fend ants’ 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



                                               4
canno t say the ev idence prepon derates agains t the find ings of the Ch ancello r.

Accord ingly, we affirm the judgm ent of the T rial Court.

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




                                             __________________________
                                             Herschel P. Franks, J.

CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
William H. Inman, Sr.J.




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