Lucas Bros. v. Cudahy Co.

• Decision Date: 23 October 1975
• Citation: 533 S.W.2d 313
• Parties: LUCAS BROTHERS v. CUDAHY COMPANY et al.
• Court: Tennessee Court of Appeals

Page 313

533 S.W.2d 313

LUCAS BROTHERS v. CUDAHY COMPANY et al.

Court of Appeals of Tennessee, Eastern Section.

Oct. 23, 1975.

Certiorari Denied by Supreme Court Feb. 9, 1976.

Miller, Martin, Hitching, Tipton, Lenihan & Waterhouse, Chattanooga, for appellant.

Shumacker, Thompson & Dycus, Chattanooga, for John Martin Company, Inc.

Scruggs, Seal & Alt, Chattanooga, for Lucas Brothers.

OPINION

SANDERS, Judge.

The Defendant, Cudahy Company, has appealed from a partial summary judgment, as well as a judgment under an implied contract.

The Plaintiff, Lucas Brothers, filed suit in the Circuit Court of Hamilton County against the Defendants, Cudahy Company, John Martin Company, Inc., and Crane Supply Company.

The Defendant, Cudahy Company, is a substantial distributor of meats and food products and maintains a branch distribution plant in Chattanooga.

The Defendant, John Martin Company, Inc., is a general contractor and in 1972 Cudahy entered into a contract with Martin for the remodeling of its plant in Chattanooga.

The Plaintiff is an electrical and refrigeration contractor and Martin entered into a subcontract with the Plaintiff to do the electrical and refrigeration portion of the contract.

The work was to be performed according to plans and specifications furnished by Cudahy. Part of the work to be performed by the Plaintiff was the furnishing and installation of four refrigeration units.

The Plaintiff, in its complaint, alleges that it installed four refrigeration units which were approved by Cudahy and Martin prior to installation. After the installation the Plaintiff modified the refrigeration units at the request of Cudahy and Martin. Later, however, it was advised by Defendants Cudahy and Martin that the refrigeration units were not acceptable and were not in compliance with the plans and specifications and they refused to pay for their installation.

The allegations in the complaint as to the Crane Supply Company, which manufactured the refrigeration units, have become moot since they are not a party to this appeal.

Also, certain counterclaims were filed which are not pertinent here.

The Defendant, Martin, in its answer to the complaint, made a general denial of any liability to the Plaintiff, but filed a cross complaint against Cudahy alleging that the work had been completed according to the plans and specifications, that Cudahy had approved the refrigeration units which had been installed and that Cudahy was wrongfully refusing to pay the sum of $27,542.84.

Also, Martin asserted that Cudahy was liable to it under the prime contract for any amount the Plaintiff, Lucas, was entitled to recover under the subcontract.

The Defendant, Cudahy, in its answer to both the original complaint and cross complaint, says that the work was not completed according to the plans and specifications and that it did not approve the refrigeration units which were installed. It also insists that the installation work failed to comply with the contract; that it was defective and unsuitable; and that when corrective work was undertaken it was also defective and unsuitable.

Subsequent to the filing of the pleadings the Plaintiff, Lucas, filed a motion for summary judgment against the Defendants and a motion to dismiss a counterclaim which Martin had filed against Lucas. The motion states, as pertinent here, 'This motion is made on the basis of the record heretofore compiled in this case and the brief in support hereof. Plaintiff is entitled to said judgment as a matter of law because the record in this cause shows, without factual dispute, that plaintiff in all respects fulfilled its contract according to the plans, specifications, and shop drawings of the contract and the directions of the defendant Cudahy's representative and that any problems caused by defects in the foregoing are not the legal responsibility of plaintiff. The only disputed issue to be decided by this Court is the amount of damages, . . ..'

On August 2, 1974, the Court filed a memorandum opinion in which he states that the cause came on to be further heard upon motions for summary judgment filed in behalf of the Plaintiff, Lucas Brothers, and the Defendant, John Martin Company, Inc. The memorandum opinion further states that on June 24, 1974, the Court granted summary judgment for the Plaintiff, Lucas, against the Defendant, Martin, and granted partial summary judgment for Martin against the Defendant, Cudahy.

However, the record fails to show that a motion for summary judgment was ever filed by Martin.

In granting the partial summary judgment in favor of Martin against Cudahy, the Court said, 'The Court reserved for later determination the claim of Lucas Brothers against Cudahy Company for matters alleged in Lucas's alleged direct contract with Cudahy Company, including any offset which Cudahy might have for alleged poor workmanship, etc., and the Court as well reserved for later determination John Martin Company, Inc.'s cross claim against Cudahy Company with respect to the question of damages, any offsets due, etc.'

After granting the summary judgment the parties all waived a jury trial and the case proceeded to trial on the issues reserved before The Honorable H. Ted Milburn, Circuit Judge, without a jury.

The Court found the issues in favor of the Plaintiff, Lucas, and against Martin on the original subcontract and awarded judgment for $8,941.54.

He found the issues in favor of Plaintiff Lucas and against Defendant Cudahy for extra work and awarded judgment for $11,377.16 and awarded a judgment in favor of Martin on its cross claim against Cudahy for $27,480.83.

The Defendant, Cudahy, has appealed and assigned error.

The Defendant's first assignment of error is to the action of the Court in granting summary judgment.

At the time the Court granted summary judgment, he had for consideration a number of depositions, interrogatories, affidavits and exhibits. From reading the evidence before the Court, it is very convincing that a change was made in the specifications for the installation of refrigeration units different from those called for in the original plans and this change was approved by the Defendant, Cudahy.

After the refrigeration units were installed they never worked properly. The reason they didn't work was that they were oversized for the evaporators they were supplying and probably would not have worked regardless of the quality of workmanship in their installation. However, this was disputed by the Defendant, Cudahy.

Cudahy insisted that the trouble stemmed from poor workmanship.

The...