Knoxville Sangravel Material Co. v. Dunn

• Decision Date: 06 October 1940
• Citation: 151 S.W.2d 174
• Parties: KNOXVILLE SANGRAVEL MATERIAL CO. v. DUNN et al.
• Court: Tennessee Supreme Court

151 S.W.2d 174

KNOXVILLE SANGRAVEL MATERIAL CO. v. DUNN et al.

Court of Appeals of Tennessee, Eastern Section.

October 6, 1940.

Certiorari Denied by Supreme Court May 17, 1941.

Appeal from Chancery Court, Knox County; A. E. Mitchell, Chancellor.

Suit by the Knoxville Sangravel Material Company against J. M. Dunn and others to recover balance allegedly due on a contract for the sale and delivery of mixed concrete. From a judgment in favor of the defendants, the complainant appeals.

Judgment affirmed.

Powers & Thornburgh, of Knoxville, for appellant.

Testerman, Ambrose & Badgett and Williston M. Cox, all of Knoxville, for appellees.

PORTRUM, Judge.

This suit was filed to collect $600 as balance due upon a contract for the sale and delivery of mixed concrete to the defendant used in the construction of an addition to the Tyson School building in the city of Knoxville. The defendant denies that he owes this sum, contending that the defendant failed to deliver the yardage he was charged with. In this suit this court is concerned with this question, Has the complainant received pay, as per the contract price, for the number of yards of concrete it delivered to the defendant?

The complainant alleges that it delivered to the defendant upon the site 803.3 cubic yards of ready-mixed concrete, from March 30, 1938, to the completion of the building August 10, 1938, aggregating the sum of $5,988.71; and that it had received payment with the exception of a balance of $601.29 for which this suit is brought. The yardage was determined by the complainant by weight, that is, the employees mixing the ingredients of the concrete would weigh the stone, gravel, sand, and cement according to a standard formula, and the concrete, when mixed, would be delivered in a concrete steel drum upon trucks in quantities of 1½ yards, 1 yard, and less, as ordered, and that dray tickets or receipts accompanied each delivery and were signed by the defendant, the defendant retaining a copy and the original being returned to the complainant. The complainant has introduced and filed as evidence these receipts, aggregating many hundred, and totaling the sum of 803.3 cubic yards of mixed concrete.

The defendant denies that he received this amount of cubic yardage, claiming that he received only the sum of 718.25 cubic yards, for which he has paid. This contention makes the issue to be determined.

The signed dray tickets or receipts are prima facie evidence of the amount delivered and received, but like any other receipts, they are not conclusive evidence of this fact; they may be shown to be erroneous, and the burden is upon the defendant to establish the fact that they are not correct. He adopts two methods in establishing this fact (1) that the measurement by weight as used by the complainant, due to the long drawn-out operation and the technical requirements, was inaccurate and untrustworthy in determining the amount of yardage; (2) that the concrete was purchased and used in the construction of parts of the wall and floor of the public school building, based upon the architect's plans calling for so many cubic yards of concrete, and that the walls and floor as finished demonstrate by actual measurement, and by calculations from the plans, that the actual yardage of concrete used corresponded to the claim of the defendant, and demonstrated that the yardage was in fact 718.25 cubic yards, or approximately this sum, therefore the defendant's insistence has been established by both methods, especially the amount of concrete actually used as shown by the second method, and that the receipts have been overcome.

The Chancellor was of the opinion, taking into consideration the architect's plans, the estimates of the bidders, the testimony of experts as to the amount of concrete actually going into the building, the testimony of the employees actually constructing the building, and the measurement of the yardage of concrete in place in the building, that the amount of concrete used in this building did not exceed the sum of 718.25 cubic yards, and that the complainant's measurement by weight was inaccurate, as evidenced by his dray tickets or receipts, and he found in favor of the defendant and dismissed the complainant's bill, from which an appeal is prosecuted.

Before undertaking a review of the proof, the court will pass upon the insistence of the complainant that the uniform sales law is applicable, being chapter 118, Acts of 1919, codified in the Code, sections 7242, 7241.

Section 7242. If after acceptance of the goods the buyer fails to give notice to the seller of the breach of any promise within a reasonable time after the buyer knows, or ought to know of such breach, the seller shall not be liable therefor. If the buyer does not want to accept he shall notify the seller that he refused to accept them.

Section 7241. The buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when he does any act inconsistent with the ownership of the seller, or where he retains the goods after the lapse of a reasonable time without intimating to the seller that he has refused them.

The court is of the opinion that these provisions have no application. They pertain more to the quality of the goods than to the quantity. There is no complaint as to the quality of the concrete, and the defendant was ready and willing and anxious to receive the concrete in a sufficient amount to complete the building according to the plans and specifications. He was bound by law, and expressed a willingness, to pay for all concrete delivered to him, and these sections are not applicable to a case of short weight. The complainant was in no way injured by the failure to give notice of a shortage, it could correct the error now as well as at any time. It certainly should not insist upon being enriched in the sum of $600 simply because the defendant did not give it notice of an...