Widdicombe v. McGuire

• Decision Date: 05 March 1968
• Parties: , 221 Tenn. 601 Abbott WIDDICOMBE et al., Appellants, v. I. W. McGUIRE, Jr., Individually and doing business and McGuire Construction Company, Appellee.
• Court: Tennessee Supreme Court

Page 815

429 S.W.2d 815

25 McCanless 601, 221 Tenn. 601

Abbott WIDDICOMBE et al., Appellants, v. I. W. McGUIRE, Jr., Individually and doing business and McGuire Construction Company, Appellee.

Supreme Court of Tennessee.

March 5, 1968.

Heiskell, Donelson, Adams, Williams & Wall, Memphis, for appellants.

Evans, Petree, Cobb & Edwards, Memphis, for appellee.

OPINION

WILLIAM J. HARBISON, Special Justice.

This suit originated in the Chancery Court of Shelby County, and was a bill brought by the complainants, Abbott Widdicombe and F. Allan Brown, to enjoin a Circuit Court suit which had been brought by I. W. McGuire, Jr., against them on a promissory note on which there was a balance due in the amount of $120,000.00, with accrued interest.

For convenience, the parties will be referred to herein as they appeared in the trial court.

The chancellor issued a temporary injunction against the proceedings in the Circuit Court, but upon motion of the defendant the injunction was dissolved. Thereafter, the injunction was reinstated pending disposition of the present appeal, upon the execution by complainants of an additional bond.

In their suit to enjoin the Circuit Court action, complainants admitted liability upon the note which was the subject of that action. It was their contention, however, that further prosecution of McGuire's suit in the Circuit Court should be enjoined until a previous suit pending in the Chancery Court against McGuire and others had been determined. The present suit for an injunction was filed on March 15, 1966.

On November 5, 1963, Central Towers Apartments, Inc., a Tennessee corporation, had filed a suit in the Chancery Court of Shelby County, Tennessee, against McGuire and others, seeking damages for alleged breach of a building contract for the construction of a large apartment building in Memphis, Tennessee. Joined as defendants in the 1963 action were McGuire, who was the general contractor for the building of the apartments, the surety on his construction bond, the architect on the project, and several of the major subcontractors. The bill alleged that the owner of the apartments, Central Towers Apartments, Inc., was entitled to damages by reason of various defects in the construction of the apartments, and several different items of damages were sought from the respective defendants. In an answer and cross-bill filed by McGuire in that action, it was contended that McGuire had remedied many of the defects complained of in the bill. It was further alleged that McGuire was entitled to indemnification from several of the subcontractors involved, in the event it should be determined that the owner of the apartments was entitled to damages by reason of defective equipment or workmanship. In addition, McGuire plead as an offset or recoupment to the Central Towers suit a note of some $20,000.00, which had been issued to him by the corporation for amounts due him under the construction contract.

This litigation has been pending in the Chancery Court since November, 1963, and has not been tried to date, insofar as the record before us discloses.

The Circuit Court action by McGuire against Brown and Widdicombe resulted from a promissory note executed by them to McGuire under date of December 15, 1962. This note was payable in annual installments of $30,000.00 each, commencing in January, 1964. There is no dispute between the parties but that the first installment on this note was paid when due in January, 1964. The installments for 1965 and 1966 were not paid, however, and on January 15, 1966, McGuire's solicitor demanded payment on the installments then due. This demand was not met. In late January, 1966, complainant Brown sought leave to file an amended and supplemental bill in the Central Towers litigation, alleging that he had become sole owner of all of the stock of Central Towers Apartments, Inc., had dissolved the corporation, and was the only person beneficially interested therein. He further alleged that he had agreed to indemnify Widdicombe on the December, 1962 note payable to McGuire, and sought to enjoin McGuire from filing an independent action on the note and to compel McGuire to plead the note as recoupment or set-off in the Central Towers litigation. This application to file an amended and supplemental bill, and to enjoin McGuire was denied on March 4, 1966. Immediately thereafter, McGuire filed his suit in the Circuit Court on the note, as above described. On March 15, 1966, complainants filed this action in the Chancery Court to enjoin the Circuit Court proceedings as aforesaid. A temporary injunction issued. Defendant McGuire filed a motion to dissolve this injunction; and after taking the matter under advisement and considering briefs and argument, the chancellor dissolved the temporary injunction and dismissed the bill.

After a careful consideration of this record, we are of the opinion that the chancellor did not abuse his discretion in this disposition of the case.

It is clear from the record before us that the note given by Brown and Widdicombe to McGuire arose out of their purchase of McGuire's right to acquire stock in the Central Towers Apartments, Inc. This was a personal undertaking and obligation of Brown and Widdicombe. On the other hand, the original suit brought in the Chancery Court in 1963 was...