Provident Life & Accident Ins. Co. v. Globe Indemnity Co.

• Decision Date: 19 March 1928
• Citation: 3 S.W.2d 1057
• Parties: PROVIDENT LIFE & ACCIDENT INS. CO. v. GLOBE INDEMNITY CO. et al.
• Court: Tennessee Supreme Court

3 S.W.2d 1057

PROVIDENT LIFE & ACCIDENT INS. CO. v. GLOBE INDEMNITY CO. et al.

Supreme Court of Tennessee.

March 19, 1928.

Certiorari to Court of Appeals on Appeal from Chancery Court, Hamilton County; W. B. Garvin, Chancellor.

Suit by the Provident Life & Accident Insurance Company against the Globe Indemnity Company and others. Decree for complainant was modified by the Court of Appeals, and complainant brings certiorari. Decree of chancellor affirmed.

Sizer, Chambliss & Chambliss, of Chattanooga, for complainant.

C. A. Noone and Allison, Lynch & Phillips, all of Chattanooga, for defendants.

SEAY, Special Justice.

This case grows out of a controversy over the construction of an office building in the city of Chattanooga. In the month of February, 1923, the complainant, Provident Life & Accident Insurance Company, undertook the construction of this building, and the contract was let to one John Parks, doing business as Parks & Co., and the defendant Globe Indemnity Company became surety on his contractor's bond, guaranteeing the faithful performance of the contract.

Shortly after the execution of the contract Parks entered upon its performance and continued the work until the month of October, 1923, when he abandoned the contract. At this time the building was scarcely more than in skeleton form, and a large amount of work remained to be done to complete it. The Provident Life & Accident Insurance Company thereupon entered upon negotiations with the Globe Indemnity Company, the surety on the contractor's bond, with the result that the Indemnity Company, denied liability under the bond and declined to take over the construction of the building. The Provident Company then took over the work, and completed it in the month of September, 1924, and shortly thereafter brought this suit to recover damages for the alleged breach of contract upon the part of Parks.

The case has been twice before this court for determination of the various questions involved, with the result that it has been finally determined and the result of our consideration has been announced in detail in a memorandum opinion filed in the cause. It would be uninteresting and serve no purpose to here go into further details.

After the cause had been heard by the chancellor and the basis of recovery and accounting fixed by him, he ordered a reference to the master, with direction to report as to the items embraced in the reference. Thereupon, in the same decree which ordered this reference, it was, among other things, recited:

"Thereupon the parties, by their respective solicitors, waived the reference to the master hereinbefore ordered, and agreed and stipulated that the matters referred to the master may be determined by the court. Whereupon it is ordered accordingly that further proof may be taken, as hereinbefore provided, and that the matters involved in the order of reference be heard and determined by the court on the entire record at the June term, 1926."

After additional proof was taken, at a succeeding term of the court, the chancellor considered the case and entered his final decree in favor of complainant, and against the indemnity company, from which decree an appeal was prayed and granted to the Court of Appeals, and by certiorari the case comes to this court.

The Court of Appeals very greatly modified the decree of the chancellor. To this action of the court, among errors assigned in behalf of complainant, is the following:

"The Court of Appeals erred in failing and refusing to affirm the decree of the chancellor, with respect to the difference between the cost of completing the work called for by the contract and the contract price thereof, because in view of the waiver of the reference and the stipulation of counsel, the determination of the chancellor was entitled to the weight of the concurrent finding of the master and chancellor, and the decree is supported by ample and cogent evidence."

This court, in numerous cases, has approved the general practice of referring a cause involving a complicated and extended accounting to the master, after the basis for the accounting has been determined and fixed by the chancellor.

In Gray Eagle Marble Company v. Jones, this court filed a memorandum opinion at Knoxville on March 13, 1924, wherein it declined to determine the issues in a complicated accounting where the chancellor...