BILLY and LOIS CULP,                )
                                    )    Wayne Circuit
      Plaintiffs/Appellees,         )    No. 3272-C-92
                                    )
VS.                                 )
                                    )    Appeal No.
J. B. HINSON and ROY PEVAHOUSE      )    01A01-9707-CV-00307
d/b/a/ PEVAHOUSE BROTHERS,          )

      Defendants/Appellants.
                                    )
                                    )                    FILED
                                                 February 13, 1998
               IN THE COURT OF APPEALS OF TENNESSEE
                    MIDDLE SECTION AT NASHVILLE
                                                 Cecil W. Crowson
                                                Appellate Court Clerk
            APPEAL FROM CIRCUIT COURT OF WAYNE COUNTY
                     AT WAYNESBORO, TENNESSEE

                    HONORABLE JIM T. HAMILTON, JUDGE




W. ANDREW YARBROUGH
P.O. Box 456
504 Highway 64 East
Waynesboro, Tennessee 38485
ATTORNEY FOR PLAINTIFFS/APPELLEES

J. DOUGLAS DICUS
P.O. Box 1119
210B So. Main Street
Waynesboro, Tennessee 38485
ATTORNEY FOR DEFENDANTS/APPELLANTS


                MODIFIED, AFFIRMED AND REMANDED.



                               HENRY F. TODD
                               PRESIDING JUDGE, MIDDLE SECTION




CONCUR:
BEN H. CANTRELL, JUDGE
WILLIAM C. KOCH, JR., JUDGE
BILLY and LOIS CULP,                           )
                                               )      Wayne Circuit
       Plaintiffs/Appellees,                   )      No. 3272-C-92
                                               )
VS.                                            )
                                               )      Appeal No.
J. B. HINSON and ROY PEVAHOUSE                 )      01A01-9707-CV-00307
d/b/a/ PEVAHOUSE BROTHERS, and                 )
MILDRED HINSON,                                )
                                               )
       Defendants/Appellants.                  )



                                     OPINION

       This is a suit by purchasers of a home against the builder-seller and the septic system

contractor for rescission or damages for failure of the septic system of the home. The Trial Judge

rendered a non jury judgment in favor of the plaintiffs and against all defendants for $5,246; and

defendants have appealed, presenting for review a single issue as follows:

                       1.      Whether the Trial Court erred in finding that
               the appellants had breached their implied warranty as to good
               workmanship and materials concerning the septic tank
               system, even though no proof was offered as to the cause for
               the failure of the septic system.


       The following facts are alleged in the amended complaint and admitted in the answer:



       2.      On March 17, 1995, plaintiffs purchased from the defendants, J. B. Hinson and

wife, Mildred Hinson, a certain residence.



       3.      The defendant, Roy Pevahouse, installed the sewage disposal system on the

premises.



       4.      The plaintiffs paid $65,000 for the property.



       The record contains an agreed narrative statement of the evidence which contains the

following summarized evidence:




                                               -2-
         The defendant, J. B. Hinson, is a general contractor, engaged in building residences. He

built the subject house for his personal use, but decided to sell it to plaintiffs. No written

warranty was given as to the efficiency of the septic system. Shortly after occupying the home

in June 1995, plaintiffs’ reported trouble in the septic system. Mr. Hinson inspected the system

and found a toilet where water was running constantly and he corrected this problem. He

requested Mr. Pevahouse to inspect and improve the septic system, but plaintiffs’ refused to

allow Mr. Pevahouse to do so.



         At the request of plaintiffs, the septic system was inspected by an environmental

specialist of the State Conservation Department who had located and designed the septic system.

He testified that the design of the system was correct, and that the accumulation of water in the

area was most likely due to excess ground water getting into the system, and that corrective

measures should be to install interceptor pipes to channel the ground water away from the

disposal system, and to add some extra field lines to the system.



         After the above-mentioned inspection and recommendations, a further inspection

disclosed evidence that a bulldozer had disturbed the soil covering the septic tank and disposal

field.



         Mr. Culp testified that he did not know what was wrong with the septic system and that

he had done nothing to improve it, but that the house was uninhabitable in its present condition.

The non jury judgment of the Trial Court reads as follows:

                        Non jury judgment for plaintiffs against all defendants
                for $5,246.00. Agreed narrative statement of the evidence
                shows the following facts:

                         J. B. Hinson is a homebuilder. He built a home and
                engaged Roy Pevahouse to provide a septic tank and disposal
                field to dispose of human waste. Pevahouse constructed the
                system according to directions of an official of the state
                ground water protection agency. Hinson and wife sold the
                home to plaintiffs without a written sales contract and
                transferred it to plaintiffs by a general warranty deed. There



                                             -3-
               were no written warranties as to satisfactory operation of the
               septic system.

                       Soon after the transfer, foul smelling water appeared
               on the surface of the disposal area. The state inspector
               recommended remedial work. The sellers attempted to
               correct the trouble without success. Pevahouse was refused
               access to the premises to carry out remedial measures.



        In Dixon v. Mountain City Constr. Co., Tenn. 1982, 632 S.W.2d 538, the Supreme Court

said:

                       In a factual situation similar to the instant case the
               North Carolina Supreme Court in Harley v. Ballou, supra,
               noting the trend of decisions as reflected as reflected in the
               annotation in 25 A.L.R.3d 383, adopted the following implied
               warranty:

                               “[w]e hold that in every contract for
                      sale of a recently completed dwelling, and in
                      every contract for the sale of a dwelling then
                      under construction, the vendor, if he be in the
                      business of building such swellings, shall be
                      held to impliedly warrant to the initial vendee
                      that, at the time of the passing of the deed or
                      the taking of possession by the initial vendee
                      (whichever first occurs), the dwelling,
                      together with all its fixtures, is sufficiently
                      free from major structural defects, and is
                      constructed in a workmanlike manner, so as to
                      meet the standard of workmanlike quality then
                      prevailing at the time and place of
                      construction; and that this implied warranty in
                      the contract of sale survives the passing of the
                      deed or the taking of possession by the initial
                      vendee.” Id. 209 S.E.2d at 783.

               We adopt that implied warranty rule in this State and in
               accord with the factual situation in the present case hold that
               it shall also apply where, at the time the contract is entered
               into, a dwelling is to be constructed by the builder-vendor.
               This warranty is implied only when the written contract is
               silent. Builder-vendors and purchasers are free to contract in
               writing for a warranty upon different terms and conditions or
               to expressly disclaim any warranty.


        Since there was no express warranty or limitation of warranty in the present case, the

quoted authority implies a warranty that:

                       [T]he dwelling, together with all its fixtures, is
               sufficiently free from major structural defects, and is

                                            -4-
               constructed in a workmanlike manner so as to meet the
               standard of workmanlike quality then prevailing at the time
               and place of construction .... .


       A septic disposal system is provided with a house, is a fixture of the house, and is

included in the implied warranty described above. However, the quoted warranty does not

guarantee that the septic system will perform adequately. The implied warranty requires that the

system be constructed in a workman like manner according to prevailing local standards.



       Under the foregoing guidelines, plaintiffs are entitled to recover upon a showing that the

septic system was not constructed in accordance with prevailing local standards. Such showing

would require evidence of the prevailing local standard. The only evidence of the prevailing

local standard was the testimony of the official who gave Mr. Pevahouse detailed directions for

the location and construction of the system. There is no evidence that Mr. Pevahouse deviated

from the directions received. Upon failure of the system the same official gave additional

directions for improving the operation of the system. Plaintiffs’ refusal to allow Mr. Pevahouse

to carry out the directions does not relieve Mr. Hinson of liability for failure to provide a

workable septic system in the home that he built and sold to the plaintiffs.



       No issue is made on appeal as to the amount of damages awarded by the Trial Court.



       The record does not demonstrate such a relationship between Roy Pevahouse and the

plaintiffs as to justify a judgment against him.



       The judgment of the Trial Court is modified by dismissing the defendant, Pevahouse.




                                               -5-
As modified, the judgment of the Trial Court is affirmed. Costs of this appeal are taxed against

the defendant Hinson. The cause is remanded to the Trial Court for further proceedings

consistent with this opinion.



                  MODIFIED, AFFIRMED AND REMANDED.




                                              HENRY F. TODD
                                              PRESIDING JUDGE, MIDDLE SECTION




CONCUR:


____________________________
BEN H. CANTRELL, JUDGE


____________________________
WILLIAM C. KOCH, JR., JUDGE




                                              -6-
