Air Temperature, Inc. v. Morris

469 S.W.2d 495, 63 Tenn. App. 90, 1970 Tenn. App. LEXIS 313
CourtCourt of Appeals of Tennessee
DecidedDecember 29, 1970
StatusPublished
Cited by10 cases

This text of 469 S.W.2d 495 (Air Temperature, Inc. v. Morris) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Air Temperature, Inc. v. Morris, 469 S.W.2d 495, 63 Tenn. App. 90, 1970 Tenn. App. LEXIS 313 (Tenn. Ct. App. 1970).

Opinion

*94 MATHERNE, J.

Complainant, supplier of materials used to air condition a factory owned by Hardin County, brought suit for $17,983.86 as the sale price of the materials, and seeks to establish a lien on the improved realty by virtue of T.C.A. sec. 64-1115.

Complainant, Air Temperature, Inc., sued Hardin County, the owner of the property; Pettigrew & Finney Contracting Company, the general contractor, hereinafter referred to as the contractor; Tommy Morris d/b/a Morris Refrigerator Company, an alleged subcontractor, hereinafter referred to as Morris; New Amsterdam Casualty Company, surety on a Labor and Material Payment Bond executed by the contractor as principal, hereinafter referred to as surety; Saltillo Manufacturing Company and Henry I. Seigel Company, Inc., as lessees and occupiers of the premises.

In order to understand the insistence of various parties as reflected by the pleadings, and the liability of the parties under the decree of the Chancellor, we deem it appropriate to first make a statement of the facts which gave rise to the litigation.

Hardin County advertised for bids for the installation of an air conditioning system in its factory building at Saltillo, Tennessee. The defendant Morris, being engaged in the business of installing air conditioning systems, was interested in bidding and obtained copies of the plans and specifications. Morris learned the successful bidder on the job would be required to make a performance bond and a labor and material bond. Morris could not make the bond but he made arrangement with the contractor to bid the job in the name of the contractor. Morris states he was to pay the contractor $1,000.00 plus *95 10% of the profit for the right to bid in its name on this job. The contractor denies this, admits it was to receive some amount, but never said what amount it was to receive. At any rate a bid was submitted by Morris in the name of the contractor, which bid developed to be the low bid, and on December 3, 1964, a written contract in the amount of $36,365.00 was entered into between Hardin County and the contractor. On December 7,1964 the contractor executed a labor and material bond and a performance bond with Hardin County as obligee, each in the amount of the contract price; each bond being executed by the defendant New Amsterdam Casualty Company as surety. A copy of the labor and material bond is attached hereto as Appendix I.

By contract dated December 15, 1964 the contractor purported to subcontract all the work to be done, with the exception of the electrical work, to Morris. By contract dated December 15, 1964 the contractor purported to subcontract all electrical work to M. J. R. Electrical Company. The proof establishes these contracts were not signed until January 11, 1965, and we hold these purported subcontracts have no bearing on the outcome of this litigation.

The proof establishes all materials sued for were on the job site, the equipment was installed, and considerable duct work had been completed as of January 13, 1965. On that date Morris went to the county judge of Hardin County and requested payment for labor expended and materials and equipment on site as allowed by the contract. The county judge called the architect by telephone and received verbal approval to pay on the contract the sum of $23,940.00. The county judge was at *96 the time leaving for Nashville, Tennessee and instructed his secretary (deceased at time of trial) to prepare a warrant in that amount. The secretary made the warrant payable to Morris instead of to the contractor, and typed thereon it was paid on the Saltillo Manufacturing Company air conditioning job. Morris deposited this warrant to his bank account on that date.

The record reveals Morris purchased materials and equipment for the Saltillo job from the complainant. The complainant presented four invoices for such material which total $17,563.95. Another charge in the amount of $419.91 reflects a charge made by Carrier Corporation because certain filters ordered for the job were returned to Carrier. This $419.91 is shown in complainant’s records as $1840.00 charge to Morris’ open account on March 3, 1965, and a $1420.09 credit to that account on April 19,1965.

By check dated January 11, 1965 Morris paid the complainant $13,500. On that date Morris’ bank account against which the check was issued was overdrawn in the amount of $116.65. The complainant’s records show it received the $13,500.00 check on January 12, 1965 and credited it to the “Supt. Hardin County Schools, Crump, Tennessee” account, which was an account complainant carried for materials Morris purchased in connection with another contract he had on the Crump Yoeational School. The $13,500 check was marked for “For Hardin County Vocational School Account.” Morris claims this was a mistake made by his secretary and it should have been marked for the Saltillo job. Morris claims he verbally instructed complainant the $13,500 was from the Saltillo job. The $13,500 check cleared Morris’ account at the bank on January 13,. 1965, same date the *97 warrant was deposited. Upon certification by the architect and the contractor, final payment was made by Hardin County to the contractor in the amount of $10,956.28 on April 1,1965.

The complainant sued on July 25, 1965 for $17,983.86 as the total amount for all materials which went into the Saltillo job. Complainant prayed a lien on the property by virtue of T.C.A. sec. 64-1115, prayed for and was granted an attachment to enforce its lien as provided by T.C.A. sec. 64-1126.

The defendant Morris did not answer and a judgment pro confesso was entered against him.

The defendants Saltillo Manufacturing Company and Henry I. Seigel Company, Inc. were dismissed and there is no appeal therefrom.

The defendant Hardin County answered and denied the complainant was entitled to a lien against its property by virtue of T.C.A. sec. 64-1115; denied complainant was entitled to a judgment against the county; averred the county could not be held liable for the negligence of its officers; averred the contractor and Morris were joint venturers and payment to one was a payment to both, alleged the contractor was by his acts estopped to now claim the $23,940.00 warrant was wrongfully issued to Morris.

The defendant contractor by answer in the nature of a cross-bill denied he was liable to the complainant; alleged wrongful payment by the county to Morris of the $23,940.00 warrant; prayed judgment against the county for any amount found due by the contractor up to the amount of $23,940.00; prayed judgment over against *98 Morris for any amount found dne by the contractor; prayed tbe complainant be required to credit against any amount found due it the sum of $13,500 paid complainant by Morris.

The defendant surety answered averring substantially the same defense as the contractor plus the averment it signed the bond as surety only, and in the event it be held liable on the bond, it should have judgment over against the principal contractor.

The Chancellor heard the cause on depositions and oral testimony.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hudson v. Rhoten
863 S.W.2d 734 (Court of Appeals of Tennessee, 1993)
Rebel Motor Freight v. Malone & Hyde, Inc.
813 S.W.2d 470 (Court of Appeals of Tennessee, 1991)
Moore Construction Co. v. Clarksville Department of Electricity
707 S.W.2d 1 (Court of Appeals of Tennessee, 1986)
United American Bank of Memphis v. Gardner
706 S.W.2d 639 (Court of Appeals of Tennessee, 1985)
V. L. Nicholson Co. v. Transcon Investment & Financial Ltd.
27 Cont. Cas. Fed. 80,250 (Tennessee Supreme Court, 1980)
Performance Systems, Inc. v. First American National Bank
554 S.W.2d 616 (Tennessee Supreme Court, 1977)
Griggs v. Peerless Insurance Co.
528 S.W.2d 182 (Tennessee Supreme Court, 1975)
Heglar v. McAdoo Contractors, Inc.
487 S.W.2d 312 (Court of Appeals of Tennessee, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
469 S.W.2d 495, 63 Tenn. App. 90, 1970 Tenn. App. LEXIS 313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/air-temperature-inc-v-morris-tennctapp-1970.