Mid-South Engineering Co. v. Buchanan
| Decision Date | 05 July 1967 |
| Docket Number | MID-SOUTH |
| Citation | 59 Tenn.App. 289,440 S.W.2d 600 |
| Parties | ENGINEERING COMPANY, Inc., Defendant-Plaintiff in Error, v. Alberta K. BUCHANAN, Executrix of the Estate of David T. Buchanan, Deceased Plaintiff-Defendant in Error. |
| Court | Tennessee Court of Appeals |
Clyde W. Key, Knoxville, for plaintiff in error.
W. E. Badgett, Knoxville, for defendant in error.
The plaintiff below, Mrs. Alberta K. Buchanan, executrix of the estate of her deceased husband, David T. Buchanan, recovered a judgment in the court below, after a jury verdict, in the amount of $19,200 which was reduced by remittitur of $4,800 to the sum of $14,400 with interest from July 1, 1963. Mid-South Engineering Company has appealed in error from the final judgment. The executrix, Mrs. Buchanan, has appealed in error from the action of the court in suggesting the remittitur.
The deceased, David T. Buchanan, had been employed as an auditor or accountant for the defendant, Mid-South Engineering Company, beginning in May, 1958, at $800 per month. He died July 1, 1963. Plaintiff contended that defendant corporation was indebted to the estate of Mr. Buchanan for his salary of $800 per month for the 24 months from July, 1961, to the date of his death in July, 1963, making a total claim of $19,200.
Mr. Bowman, president of Mid-South, contended that in June, 1962, he made a new agreement with Mr. Buchanan to pay him $800 from and after that time only if he worked at the offices of Mid-South at least one week each month and that Mr. Buchanan, because of sickness, had worked less than 72 hours since June, 1962, for which he had been paid $800 in November, 1962, and that Mid-South owed Mr. Buchanan nothing. The jury gave judgment for 24 months pay of $19,200.
Mr. Buchanan had been a long-time friend of Mr. Bowman and had helped Mr. Bowman organize the engineering company sometime about 1957. He became a director in the corporation and remained a director until January 4, 1962, when he sold his stock in the corporation and ceased to have any official position thereafter. Mr. Buchanan was not a certified public accountant.
On May 20, 1958, Mid-South Engineering Company wrote the following letter to Mr. Buchanan:
820 Broadway, N.E.
Knoxville, Tennessee
May 20, 1958
Mr. D. T. Buchanan
Burwell Building
This is to advise that you are hereby appointed as official accountant and auditor for the Mid-South Engineering Company Inc. and to perform professional services as required.
For performing these services the Mid-South Engineering Company, Inc. hereby agrees to pay you an annual fee of ninety-six hundred dollars ($9600.00) based on monthly payments of eight hundred dollars ($800.00) per month.
Also, since your services require some travelling Mid-South Engineering Company Inc. further agrees to furnish you with an automobile.
MID-SOUTH ENGINEERING COMPANY INC.
/s/ J. D. Bowman
J. D. Bowman, President'
Mr. Buchanan was paid $800 per month for his services under the terms of the above letter for the period through February, 1961, which payments were paid regularly. There is no controversy that he had been fully compensated for such period of time.
It was the contention of the defendant that sometime during the year 1961, Mr. Buchanan became ill and unable to perform his duties satisfactorily as auditor and accountant for the Mid-South Engineering Company; that subsequent thereto he was involved in an automobile collision which made it even more difficult for him to perform his duties as auditor and accountant; that it became necessary for the Mid-South Engineering Company to employ the services of another accountant to do his work; that on June 21, 1962, Mr. Bowman, as president of Mid-South Engineering Company, had an agreement with Mr. Buchanan to pay, and did pay, him $2,400 for services rendered up to and including June 21, 1962; that they made a further verbal agreement that from and after that date Mr. Buchanan would be paid the sum of $800 per month for his services provided he spent as much as one week per month in the offices of Mid-South Engineering Company performing his duties as auditor-accountant; that in November, 1962, Mr. Buchanan was paid $800 which was the full amount due and owing to him and that Mid-South Engineering Company owed him nothing further. Mr. Buchanan was allowed to keep the company automobile which was returned by his widow after his death.
Mid-South's assignment of error No. I insists that the Trial Court erred in failing to direct a verdict in its favor at the close of all the proof and hence that there is no evidence to support the verdict of the jury.
The executrix testified that when she surrendered the automobile to Mid-South, she made demand upon Mr. Bowman for the balance due and owing to her husband. She reminded Mr. Bowman that her husband had helped him organize the corporation and get it started. She asked for payment of $800 per month for 24 months or a total of $19,200. Mr. Bowman stated that he would have to discuss it with his attorney.
Mrs. Buchanan further testified that she took possession of the records and accounts and papers of her husband soon after his death and that she knew of her own knowledge that her husband did auditing for concerns other than the defendant corporation and had many clients other than Mid-South Engineering Company. She introduced as exhibit 3 (copied above) the letter notifying Mr. Buchanan of his appointment as auditor and accountant for the Mid-South Engineering Company and stated that she found no documents among her husband's papers indicating that the contract of employment had ever been changed.
The other documents introduced by Mrs. Buchanan tending to show the liability of Mid-South Engineering Company were exhibits 4, 5, and 6. Exhibit 4 is a small memorandum book 4 inches long with pages 2 inches wide in which are listed in pencil what appear to be charges by Mr. Buchanan against some of his clients including the Mid-South Engineering Company. The memorandum book also contains what appear to be some credits. The entries relating to the Mid-South Engineering Company are in three columns, the one on the left being the month and year, the middle column shows the amount of monthly charge, and the column on the right shows the dates of payments of said charges and we copy the same in full as follows:
Exhibit 5 and 6 are pocket diaries for the calendar years 1961 and 1962 which contain memoranda apparently showing the name of Mr. Buchanan's clients and the number of hours worked by Mr. Buchanan for these clients on various dates. Exhibit 5, the pocket diary for 1961, shows the following entries and hours worked for Mid-South Engineering Company:
January 0 hours March 23 6 hours
February 27 6 hours March 24 6 hours
February 28 6 hours April 10 2 hours
March 1 5 hours May 31 3 hours
March 2 6 hours June 1 2 hours
March 3 6 hours July 0 hours
March 13 6 hours August 0 hours
March 14 4 hours September 0 hours
March 15 6 hours October 0 hours
March 20 6 hours November 0 hours
March 21 6 hours December 0 hours
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March 22 6 hours Total for 1961 82 hours
Exhibit 6, the pocket diary for 1962, shows the following hours allegedly worked for Mid-South:
January 0 hours November 2 1 hour
February 0 hours November 7 4 hours
March 0 hours November 9 3 hours
April 0 hours November 12 4 hours
May 0 hours November 14 3 hours
June 0 hours November 15 4 hours
July 0 hours November 19 4 hours
August 0 hours November 20 4 hours
September 0 hours November 21 4 hours
October 23 4 hours November 28 4 hours
October 24 5 hours November 29 3 hours
October 26 6 hours December 0 hours
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November 1 4 hours Total for 1962 57 hours
Plaintiff's next witness, Mr. Bruce Moody, a certified public accountant and also an attorney at law engaged primarily in C.P.A. work, testified that he had been associated with Mr. Buchanan during his lifetime; that he knew that Mr. Buchanan had many clients other than Mid-South Engineering Company; and that his work for the defendant did not require all of his time and attention; that he knew that Mr. Buchanan did make some audits and prepare some tax returns for the defendant corporation; and he further testified that after Mr. Buchanan had been ill and after he was involved in the automobile accident in which he was seriously injured Mr. Buchanan set up an office in his...
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...and juries are given an equitable power to allow interest in the form of damages, if they think it just. Mid-South Engineering Co. v. Buchanan, 59 Tenn.App. 289, 440 S.W.2d 600 (1967). "The general rule is to allow interest in all cases where the amount of the debt is certain and not disput......
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