Crabtree Masonry Co., Inc. v. C & R Const., Inc.

• Decision Date: 15 December 1978
• Citation: 575 S.W.2d 4
• Parties: CRABTREE MASONRY CO., INC., Petitioner, v. C & R CONSTRUCTION, INC., Respondent. 575 S.W.2d 4
• Court: Tennessee Supreme Court

Page 4

575 S.W.2d 4

CRABTREE MASONRY CO., INC., Petitioner, v. C & R CONSTRUCTION, INC., Respondent.

575 S.W.2d 4

Supreme Court of Tennessee.

Dec. 15, 1978.

William M. Barker, Chattanooga, for petitioner; Dietzen, Dietzen & Barker, Chattanooga, of counsel.

Herbert A. Thornbury, Chattanooga, for respondent; Wolfe, Thornbury & Rotroff, Chattanooga, of counsel.

OPINION

BROCK, Justice.

This is an action by a subcontractor against the general contractor to recover damages for breach of the subcontract. Crabtree Masonry Co., Inc., sued C & R Construction, Inc., and recovered a jury verdict, approved by the trial judge, in the sum of $3,665.00. The Court of Appeals reversed the judgment and dismissed the complaint. We granted certiorari.

On June 3, 1975, C & R was granted the contract to construct an addition to Baroness Erlanger Hospital in Chattanooga. C & R, in turn, entered into a subcontract with Crabtree on June 19, 1975, for performance of all the masonry work on the project.

Under the contract, Crabtree was scheduled to commence work on July 31, 1975. However, work was not started at that time because a dispute arose between Crabtree and C & R Construction. At issue in the dispute was whether Crabtree should make a rebate of $1,200.00 to $1,400.00 to C & R. The rebate was demanded by C & R and arose out of a misunderstanding between the parties respecting the question whether certain foundation walls of the proposed structure were required by the building plans and specifications to be of masonry construction and, thus, constituted a part of the obligation of Crabtree under its subcontract or were to be of concrete which would not constitute any part of the obligation of Crabtree under the subcontract. This misunderstanding was settled by the architect who clarified or modified the plans and specifications to eliminate the wall entirely. At this point C & R insisted that Crabtree give a rebate as above mentioned, but Crabtree refused to do so, insisting that it had not made any provision in its bid or in the contract price of the subcontract for the walls in question to be of masonry construction and, therefore, that there was no occasion for a rebate.

The reversal by the Court of Appeals of the jury verdict and judgment of the trial court was based upon its conclusion ". . . that under the undisputed proof reasonable minds must agree that plaintiff's refusal to begin construction because of the dispute over the rebate was not warranted and that defendant was justified in terminating the contract."

It is the insistence of Crabtree in this Court that the Court of Appeals in reaching that conclusion has failed to give due and proper weight to the verdict of the jury, approved by the trial judge, and has taken upon itself the function of choosing between conflicting evidence and inferences to be drawn therefrom, thereby depriving Crabtree of its right to a jury trial. Crabtree insists that there is material evidence in the record to support jury findings that (1) it did not refuse to begin work at the appointed time; that, instead, it was C & R who refused to permit Crabtree to begin work unless and until Crabtree should agree to make the claimed rebate; and (2) in any event, Crabtree was justified in refusing C & R's demand for the rebate.

It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury. City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D. M. Rose & Co. v. Snyder, 185 Tenn. 499, 206 S.W.2d 897 (1947); City of Chattanooga v. Ballew, 49 Tenn.App. 310, 354 S.W.2d 806 (1961); Dynamic Motel Management, Inc. v. Erwin, Tenn.App., 528 S.W.2d 819 (1975). Of course, these principles apply as well in a breach of contract case tried by a jury as in a personal injury or other tort action.

After a review of the evidence in this case under the discipline imposed by the above cited principles and authorities, we have concluded that the verdict of the jury is supported by the evidence and that the Court of Appeals erred in directing the verdict and dismissing the complaint. Thus, we find evidence which, if believed by the jury, would support a finding that Crabtree did not refuse to begin construction but, rather, that C & R refused to agree for Crabtree to begin construction until...