                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 5, 2003 Session

                      C & G SEEDS, INC. v. SAMMY TAYLOR

                       Appeal from the Circuit Court for Smith County
                               No. 4974    Clara Byrd, Judge



                  No. M2002-01572-COA-R3-CV - Filed December 1, 2003


A farming supply store brought suit against an account holder for money due on an unpaid account.
The trial court found that the store failed to prove any monies were owed. The farming store
appeals, arguing that the evidence preponderates against the trial court’s decision. We affirm the
decision of the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
                                Affirmed and Remanded

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

J. Branden Bellar, Carthage, Tennessee, for the appellant, C & G Seeds, Inc.

Sharon Linville, Hartsville, Tennessee, for the appellee, Sammy Taylor.
                                            MEMORANDUM OPINION1

       C & G Seeds (“C & G”),2 a farm supply store located in Riddleton, Tennessee, is owned by
George McDonald. In the early 1990s, Sammy Taylor set up an account at C & G to purchase seed
corn, hybrid seed corn, and crop protector chemicals.3

        C & G brought suit on December 7, 2001 against Mr. Taylor for the unpaid balance due on
his account.4 At the bench trial, the trial court heard testimony from Mr. McDonald and the Taylors.
In addition, the trial court conducted a thorough review of C & G’s business records pertaining to
Mr. Taylor’s account, and unsuccessfully attempted to reconcile them. C & S’s invoices did not
match the computer printouts, and no record could provide a current and accurate account balance.5

         The trial court found that C & G had failed to prove that Mr. Taylor owed the store any
money. In fact, the trial court was concerned that the Taylors may have been overcharged for
supplies or charged for supplies not received since many of the invoices either stated different prices
for the same product or did not bear a signature to verify receipt of the supplies. The trial court noted
that:


         1
             Tenn. R. Ct. App. 10 states:

         This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify
         the actions of the trial court by memorandum opinion when a formal opinion would have no
         precedential value. W hen a case is decided by memorandum opinion it shall be designated
         “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any
         reason in any unrelated case.

         2
             According to the trial transcript, the proper name for the business is C & G Seeds, not C & G Seeds, Inc.

         3
           At the time the products were received by Mr. Taylor, a handwritten invoice would be issued showing both
the quantity of the item (whether in pounds, bushels, ounces, etc.) and price of each item purchased. The invoices were
not always signed by the person receiving the goods. At the end of each month, C & G generated a computer invoice
totaling the purchases for the month on the account held by Mr. Taylor. Mr. Taylor was thus billed on a monthly basis
for his purchases at C & G. Unfortunately, the invoices did not correspond to the computer generated monthly bill so
it was not possible to match purchases with the end of the month statement.

         4
          Mr. McDonald testified that as of the date of trial, the outstanding principal on the account was $8,434.69, the
outstanding interest was $14,540.69, and the total past due on the account was $22,975.38.

         5
          Mrs. Taylor testified that she had been the bookkeeper for Mr. Taylor for nine years and that she had contacted
Mr. McDonald several times regarding invoices and receipts. Mrs. Taylor stated that “there were a lot of missing tickets,
according to the [monthly] statements, and I just never could get it - - anything to match.” Mr. McDonald agreed
somewhat, testifying that Mrs. Taylor had contacted him on more than one occasion to inform him that she was not
receiving all of the invoices or receipts for what she had been billed for on the monthly statement of the account. Mr.
McDonald stated that he regularly sent invoices to M r. Taylor at his home address. Mr. McDonald also asserted that
he sent additional copies of the handwritten invoices to M rs. Taylor in response to her requests. She acknowledged that
Mr. McDonald sent her most of the invoices after her telephone calls, but that she never did receive all of the handwritten
invoices and some of them she did receive were unsigned.

                                                             2
                 However, in going through these invoices, I find that Mr. Taylor – he and his wife
                 both stated they couldn’t get the statements to match up to the invoices, so that’s
                 exactly what I tried to do.6

        6
        The trial court listed examples of discrepancies, all of which are simply findings of a failure to prove the
amount owed:

                 [t]he following discrepancies occurred beginning with the invoice on 04/16/96. Mr. Taylor
                 apparently got 44 bags of 3394 Pioneer. He was billed for 40 bags of 3394 F-14 at 73.60 a
                 bag -- and this may mean more to M r. Taylor than it does to me - - and 5 bags of 3394 at
                 71.10. He was apparently overcharged at least one bag on that bill, which would be $71 or
                 73. I don’t know.

                 Because later - - apparently he’s ordering the same thing every time because two days later
                 he comes in and orders 36 bags of number 3394, but he’s only billed 57 a bag for that, which
                 leads me to conclude that he was overcharged $15 a bag two days prior, or he was
                 undercharged, but there’s a big discrepancy.

                 Then moving forward on the date of 04/18/96, Mr. Taylor actually signed this bill but he only
                 signed for 33 bags of Altrazine, but he was charged for 825 bags, which are 2.65 a bag.

                 W ell, he’s charged per pound. I don’t know if they’re pound bags or what. It’s a big
                 discrepancy which could make a big difference, because 825 at 2.65 a pound is 2,186,
                 whereas 33 times 2.65 is some $70. So that’s a big discrepancy.

                 And again on 04/25 we’ve got 3394, again 32 bags of it. He was charged $71 a bag for that,
                 but he had been charged $52 a bag - - $57 a bag nine days earlier.

                 Then on 05/20 whoever wrote out the ticket for Admire charged him $70 a pint, whatever
                 that is. But I saw Admire later on in here at $72 earlier - - yeah, on the 05/10 invoice it says
                 72 a pint, but on the 05/20 it’s 70 a pint. That’s a discrepancy.

                 Then when I get to 05/23/96, Atrazine again, quantity 300. His ticket only says 12. I can
                 understand why Mr. and M rs. T aylor can’t match these up. It says quantity 300 at 2.65 a
                 pound. Devrinol, his ticket only says 4 but he was charged for 16.

                 And I can’t tell on the 06/25/96 invoice if he got 5 gallons - - looks like someone had written 35 and
                 scratched it out, and he was charged for 15. I don’t know. I’ve just got a question mark there. I don’t
                 know how much he got.

                 Then 06/29 his ticket says 3 cases of Graxomone, and then the quantity he was charged for
                 says 15 at 32.70. It says one case of Surf Aid. W hat he was charged for was 4 quantity at
                 6.75. Orthene, there’s one case. W ell, I guess if it’s $10 a can that would be - - maybe a case
                 is 12 at 10 a can.

                 Then when we got into the wheat, evidently there’s a difference between a bag and a bushel.
                 Sometimes he got charged for bags, sometimes it was converted to bushels. But it’s a
                 difference of bags and bushels.

                 Now, he signed an invoice on 10/14/96. It says 200 - - quantity, 200 of them. W hat he was
                                                                                                       (continued...)

                                                           3
                                                     *****

                But when I look at [Mr. Taylor’s] total charges compared to what he charged in the
                past, it appeared to me it just didn’t look right. Back in 94 he had a $41,000 account;
                ‘95 he had a $51,726 account; and then it jumps up in ‘96 to $83,669. Mr. Taylor
                never could understand it. His wife couldn’t understand it. And they’ve paid some
                $79,000 on that account.

                And I think due to the discrepancies in the billing that I believe it’s - - that
                Mr. Taylor is paid in full. He paid $79,000, and I’m sure that was hard to
                come by when the $83,000 he was charged with would pay for almost two
                years of his farming accounts in the past. So I’m going to - - based on these
                exhibits, I’m going to say Mr. Taylor owes nothing, and so it would be a
                judgment for Mr. Taylor.

        On appeal, C & G argues that the evidence preponderates against the trial court’s findings.
Our review of this record is de novo upon the record of the trial court, accompanied by a presumption
of correctness of factual findings, unless the preponderance of the evidence is otherwise. Tenn. R.
App. P. 13(d); Cross v. City of Memphis, 20 S.W.3d 642, 643 (Tenn. 2000).

       This court has held that in order to prove the existence of an account,

       The general principles of evidence apply to the proof of accounts. The ordinary way
       of proving accounts is of course to prove each item thereof, the quantity and value,
       unless an implied or express assent to the correctness of the account can be shown.
       The correctness of an account, may, like any other fact, be established by
       circumstantial evidence, but the circumstances must not be too remote or far-fetched,
       but must be such as to afford a reasonable proof of the existence of the fact attempted
       to be deducted therefrom.

Cumberland Grocery Co. v. York, 9 Tenn. App. 316, 317-18 (1929).



       6
        (...continued)
                 billed is $11 a bushel. But on 10/12 when he ordered, he ordered 100 bags, not 100 bushels,
                 and he was charged for 100 bushels.

                It made me wonder if all of these were bags and should have been converted to the bushel
                price which was different. For example, on the 10/15 invoice somebody went back and
                converted it to bushels. 200 bags of hickory wheat is 166.67 bushels, and that’s what he was
                billed for.

                And somebody converted it on 10/18, 250 bags of coker to 208.33 bushels, and that’s what
                he was charged for. But on other days it wasn’t converted to bushels, so I don’t know what
                happened there.

                                                        4
         Of course, the burden of proof was on C & G. In the case herein, while Mr. McDonald
sufficiently established the existence of an account between C & G and Mr. Taylor, he did not
sufficiently prove the correctness of the amount he asserted was owed by Mr. Taylor. The evidence
that Mr. McDonald submitted included only his computerized monthly billing statements and
handwritten invoices, only a few of which were signed by the person receiving the goods. There was
no proof submitted by either party that Mr. and Mrs. Taylor actually received all of the items that
they were billed for by C & G or that they or someone working for them actually charged all of the
items billed to their account. The invoices, even including the unsigned ones, did not match the
monthly billing. While all of the bills were entered into evidence, C & G did nothing to prove that
Mr. Taylor owed more than he had paid. As to the interest charged on the account, although some
of the invoices indicate an intent to charge an 18% annual interest rate on invoices over 45 days past
due, Mr. McDonald testified that he and Mr. Taylor agreed to reduce that amount to 12% at one
point in time, and 5.04% at another time. Mr. Taylor does not remember ever agreeing to an interest
rate. Mr. McDonald did not produce any type of writing which evidenced an agreement as to the
interest rate to be charged on the account for any past due amounts.

         Based upon our review of the record, we find that the evidence does not preponderate against
the trial court’s findings. The documentary evidence produced by C & G does not establish the
amount claimed as owing. To the extent findings rely on credibility determinations, in a non jury
case, the weight, faith and credit to be given to a witness’ testimony lies in the first instance with the
trial judge who has the opportunity to observe the manner and demeanor of the witnesses as they
testify. Roberts v. Roberts, 827 S.W.2d 788, 795 (Tenn. Ct. App. 1991); Weaver v. Nelms, 750
S.W.2d 158, 160 (Tenn. Ct. App. 1987), and we give great weight to the trial judge’s findings on
issues involving credibility of witnesses. Randolph v. Randolph, 937 S.W.2d 815, 818 (Tenn. 1996).

       Because the evidence does not preponderate against the trial court’s finding that C & G failed
to prove an amount owing, the judgment of the trial court is affirmed. Costs of the appeal are taxed
to C & G Seeds, Inc.



                                                         ___________________________________
                                                         PATRICIA J. COTTRELL, JUDGE




                                                    5
