Burt v. Edmonds

• Decision Date: 08 December 1969
• Citation: 2 Pack 403,456 S.W.2d 342,224 Tenn. 403
• Parties: , 224 Tenn. 403 Frank L. BURT, Jr. v. James B. EDMONDS, Robert E. Irwin, Comfort Systems, Inc., and Mid-South Title Company.
• Court: Tennessee Supreme Court

Page 342

456 S.W.2d 342

2 Pack 403, 224 Tenn. 403

Frank L. BURT, Jr. v. James B. EDMONDS, Robert E. Irwin, Comfort Systems, Inc. and Mid-South Title Company.

Supreme Court of Tennessee.

Dec. 8, 1969.

As Amended on Rehearing Feb. 16, 1970.

William A. Sands, Memphis, for appellant.

Heiskell, Donelson, Adams, Williams & Wall, Memphis, for James B. Edmonds.

Henry T. V. Miller, and McDonald, Kuhn, McDonald, Crenshaw & Smith, Memphis, for Comfort Systems, Inc.

OPINION

McCANLESS, Justice.

In December, 1961, and January, 1962, the complainant, Frank L. Burt, Jr., and his wife, Betty Ann Burt, the defendant, James B. Edmonds, and his wife, Jeanne H. Edmonds, and the defendant Robert E. Irwin, and his wife, Donna J. Irwin, purchased two contiguous tracts containing together 139 acres at or near Germantown in Shelby County for $320,000.00. Of this consideration the purchasers paid $8,000.00 and for the rest they assumed existing indebtedness and gave their down notes secured by their deeds of trust on the properties. The purchasers--considering each husband and wife as one purchaser--each paid one-third of the expense of closing the transaction and one-third of the cash payment, and each husband and wife owned a one-third interest in the venture. The parties entered into no written contract but there is no contention that the interests were other than equal, and it is clear from the record that all the purchasers expected a quick sale of the property at a substantial profit. The complainant is a licensed real estate broker and the others depended on him to negotiate the sale.

When a note of $16,000.00 matured on May 15, 1962, the complainant, after an unsuccessful effort to have its maturity extended, paid it with funds that he had borrowed for that purpose. Before he made this payment the complainant, as agent, had obtained sales contracts from the defendants, Edmonds and Irwin. Their wives had not joined in the execution of these contracts, and Edmonds insists that the complainant took and was given them for his own benefit; that he could have sold the property at a profit which he could have kept for himself; and that his payment of $16,000.00 was a down or earnest money payment that he made on his own account. The complainant contends that he got the contracts only so he might be in a better position to negotiate with a prospective purchaser. This issue has been the subject of serious controversy in the suit and much of the testimony relates to it, but both the Chancellor and the Court of Appeals have found that the contracts and the $16,000.00 payment were for the benefit of all three shares in the venture and not for the complainant alone. The proof conflicts but the issue was found for the complainant by the Chancellor and by the Court of Appeals and this concurrent finding of fact is conclusive upon us. § 27--113, T.C.A.

In July, 1962, the complainant informed the defendants, Edmonds and Irwin, that he was unable then to conclude the sale of the property and asked them to pay him their ratable parts of the $16,000.00 payment he had made. They refused and have never contributed anything toward this payment although all payments before and since--taxes, interest, and principal--were made equally, each share making its one-third part of every payment that the parties made for any purpose.

By 1964 the defendant, Irwin, was in financial difficulties and, being indebted to Lennox Industries, the parent corporation of the defendant, Comfort Systems, Inc., he and his wife gave it a deed of trust on their property, including their share in the Germantown real estate. Later on the deed of trust was foreclosed and Comfort Systems, Inc., bought the share, but from a date that preceded the foreclosure, Comfort Systems, Inc., paid one-third of the taxes and interest as those items came due.

The parties--Comfort Systems, Inc., succeeding to the share of Robert E. and Donna J. Irwin--owned the property for more than five years, during which time the complainant continued to try to sell it. He demanded contribution once and perhaps more than once of the defendants, Edmonds and Irwin, and, after Comfort Systems, Inc., became interested, at least once of that defendant. Considering that the parties dealt with each other constantly for more than five years it is remarkable that more was not said about this item. The record does show, however, that the complainant made demand, and it does not show that he ever made any suggestion that he did not expect to collect his debt when the property was sold, and certainly no document signed by any of the parties contained a stipulation inconsistent with the complainant's insistence.

By April, 1967, a sale of both tracts for $400,000.00 had been negotiated and was scheduled for closing at the offices of the defendant, Mid-South Title Company, on that day. After the parties had signed the documents and the funds were in the hands of the Title Company, as escrow agent, the complainant filed his suit by which he enjoined the Title Company for disbursing $14,340.74, the amount that the complainant had calculated was due him from the others including interest. The complainant did not sue Jeanne H. Edmonds or Donna J. Irwin.

It is not necessary to discuss the pleadings, but it may be noticed that the defendant, Robert E. Irwin, did not answer the bill and that a judgment Pro confesso was entered against him. His whereabouts is unknown.

The Chancellor found that the complainant had been guilty of such laches as precluded his recovery. The Court of Appeals was of the contrary opinion.

Mr. Justice Swepston, speaking for this Court, said:

'Moreover, mere delay or laches alone is never sufficient to cause a...