author: FLANIGAN, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Deroy THRIFT, a/k/a Lawrence Deroy Thrift, Defendant-Appellant.
    No. 10887.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 5, 1979.
    C. R. Rhoades, Neosho, for defendant-appellant.
    John Ashcroft, Atty. Gen., Paul Robert Otto, Brenda Farr Engel, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
   FLANIGAN, Chief Judge.

A jury found defendant, a second offender, guilty of burglary in the first degree, § 560.040 RSMo 1969, and the trial court sentenced him to 15 years’ imprisonment. Defendant appeals.

On September 16, 1976, “around 12 o’clock noon,” Ethel Walker was lying down in her bedroom in her rural home in Newton County. She heard a knock at her door. Mrs. Walker testified, “I went to see if it was a neighbor or relative, and since I was not feeling well, I did not answer the knock. . . . When I went to see, I saw the man that broke into my house. He did not break into my house at that time. ... He drove out of my driveway and went across the highway to the neighbor’s house.”

Mrs. Walker further testified that the man, whom she identified as the defendant, knocked on the door of her neighbor’s house and she “went back to the bathroom in the back of the house.” She then heard a “commotion” at her back door, like someone “trying to open the door.” The defendant then left the back door and “went back around to the front door.” The front door consisted of the “big door” and the storm door, the latter being immediately exterior of the former. The storm door was “closed and locked.” There was a noise at the front door and the defendant entered the house through the storm door and the “big door.” Prior to the entry by defendant the “big door” was “unlocked and turned back.”

Mrs. Walker testified that the defendant, with a gun in his hand, approached her and said, “I want money.” Mrs. Walker told him she had no money and persuaded him to leave. He did so without further incident.

Ethel Walker was the only witness for the state who had personal knowledge that it was the defendant who entered her home. The state introduced photographs of the front door which were taken by detective Bob L. Roberts of the Joplin Police Department. According to Roberts the photographs showed marks which he characterized as “tool marks.”

On this appeal defendant makes the valid contention that the trial court committed reversible error in failing to sustain defendant’s challenge for cause directed to veniremen Clyde Sparks and Melvin Southern.

During voir dire examination prosecuting attorney Steve Lampo informed the prospective jurors that the case involved a burglary which occurred in September 1976, and that the victim was Ethel Walker, whose house was “just off Highway 43 about eight miles north of Seneca.” The prosecutor then asked if any of the prospective jurors was acquainted with Mrs. Walker. Sparks and Southern answered affirmatively. Each of the two veniremen also stated that he was acquainted with detective Bob Roberts of the Joplin Police Department who was to be one of the witnesses for the state.

The prosecutor then asked Mr. Sparks whether or not Sparks, if selected as a juror, “could listen to the evidence and go ahead and decide fairly and impartially, despite what you have heard about [the case].” Sparks answered, “yes.” Sparks stated that Mrs. Walker lived not too far from him and that he had met detective Roberts several times through the Joplin R-8 School District.

After Southern had informed the prosecutor that he was acquainted with Ethel Walker, the prosecutor asked this question: “By reason of this acquaintance, you know about this particular case?” Southern answered, “yes, sir.”

During the portion of the voir dire examination conducted by defendant’s attorney, Walter Walker, the following transpired: (Emphasis added.)

“MR. WALKER: These two men that know Detective Roberts and Ethel Walker, would it take any evidence to dispel from your mind anything you have heard so far? In other words, would it take a little evidence to start even? We are dealing with your neighbor up there. Would you tend to lean her way a little bit?

VENIREMAN SOUTHERN: I would tend to believe someone I know.

MR. WALKER: I think we are all that way. Do you feel that way, Mr. Sparks?

VENIREMAN SPARKS: I sure do.

MR. WALKER: In other words, you would tend to believe someone you know? These are noddings — agreements to that effect. I would request and challenge on behalf of the defendant these two jurors who are neighbors.

THE COURT: As to Mr. Sparks and Mr. Southern, I recognize the answers you have given. Do you think think that you can lay aside any ideas or pre-conceived conception you might have and listen to all the testimony that was given here and at the conclusion of the case, hear the instructions given by the Court and be fair to both parties involved here?

VENIREMEN SPARKS and SOUTHERN: Yes.

VENIREMAN SOUTHERN: I think I could be fair to both.

THE COURT: Request for challenge will be denied.

MR. WALKER: But you both feel you would tend to believe her instead of somebody else?

MR. LAMPO: I hesitate to object—

THE COURT: Overruled. He can ask the question.

MR. WALKER: How long have you known Mrs. Walker?

VENIREMAN SOUTHERN: Between eight and nine years.

VENIREMAN SPARKS: Nine years.

MR. WALKER: Would you feel ill at ease sitting on this jury?

VENIREMEN SPARKS and SOUTHERN: No.

MR. WALKER: But you do tend to believe her over anyone else?

VENIREMAN SPARKS: Yes.

MR. WALKER: How about Detective Roberts? Would you believe him?

VENIREMAN SPARKS: I don’t believe I would because I haven’t known him that long.

MR. WALKER: How about you, sir?

VENIREMAN SOUTHERN: He is more of an acquaintance in trading in my store. I would say I would believe him if he said something.

MR. WALKER: He is a customer in your store?

VENIREMAN SOUTHERN: Yes.

MR. WALKER: How about Mrs. Walker? Is she a customer, too?

VENIREMAN SOUTHERN: Her husband and my father work together.

MR. WALKER: Family friends then?

VENIREMAN SOUTHERN: Yes.

Later in the voir dire examination by Mr. Walker defendant challenged for cause another venireman, Mr. Schmidt, and renewed his challenges directed to Sparks and Southern. Counsel stated to the court that Sparks and Southern “would believe what the complaining witness said, as they know her, and put more reliance on her testimony than other witnesses.” The trial court sustained the challenge to venireman Schmidt and denied the renewed challenges. Thereafter defendant used two of his peremptory challenges to strike veniremen Sparks and Southern.

A defendant in a criminal case is entitled to a full panel of qualified jurors before he is required to make his peremptory challenges. The trial court has wide discretion in determining the qualifications of a venireman and its ruling on a challenge for cause will not be disturbed in the absence of a clear abuse of discretion.

“A determination by the trial judge of the qualifications of a venireman necessarily involves a judgment based on an observation of the demeanor of the venireman and, in the light of that observation, an evaluation and interpretation of his answers as they relate to whether he would be fair and impartial if chosen as a juror. The trial judge is in a far better position to make that determination than are we from the cold record.” State v. Harris, 425 S.W.2d 148, 155[8] (Mo.1968).

This is an area where there is no “clear line of demarcation,” and an abuse of discretion is not demonstrated merely because an appellate judge, had he been sitting as the trial judge, would have ruled otherwise on the challenge for cause. Of course the facts of the particular case control, and any doubt as to the propriety of the trial court’s ruling is to be resolved in favor of that ruling.

A defendant who seeks review of a trial court’s denial of his challenge for cause need not, as a predicate to review, show that he used his peremptory challenge to dispose of the venireman or that his peremptory challenges were already exhausted.

A venireman is not a judge of his own fitness, and if his answers on voir dire show it is doubtful whether he could accord the defendant a fair trial, the trial court should sustain the challenge for cause.

Clearly the most important witness for the state was Ethel Walker. She alone identified the defendant as being the man who entered her home. Defendant, testifying in his own behalf, relied upon the defense of alibi.

The situation is akin to that in State v. Spidle, 413 S.W.2d 509 (Mo.1967) where the principal witness for the state was the victim and the principal witness for the defense was the defendant himself. In Spidle the supreme court held that the trial court abused its discretion in failing to sustain a challenge for cause directed to a venireman who was “strongly disposed to resolve factual issues in accord with the testimony of a particular prosecuting witness.” The court said, at 512: “[A] defendant in a criminal case should not have to start out with a juror who feels that in case of a dispute he would have to take the word of the prosecuting witness.”

This court holds that the trial court abused its discretion in failing to sustain the challenges for cause directed to Sparks and Southern.

The judgment is reversed and the cause remanded.

All concur, except PREWITT, J., not participating because not a member of the court when case was submitted.

      . State v. Land, 478 S.W.2d 290, 292 (Mo.1972); State v. Hill, 556 S.W.2d 227, 229[1] (Mo.App.1977); State v. Gordon, 543 S.W.2d 553, 555[1] (Mo.App.1976).

      . State v. Treadway, 558 S.W.2d 646, 649[1] (Mo.Banc 1977); State v. Cuckovich, 485 S.W.2d 16, 22[11] (Mo.banc 1972); State v. Scott, 482 S.W.2d 727, 728 (Mo.banc 1972); State v. Land, 478 S.W.2d 290, 292[1] (Mo.1972); State v. Harris, 425 S.W.2d 148, 155[8] (Mo.1968); State v. Hill, 556 S.W.2d 227, 229[2] (Mo.App.1977).

      . To similar effect see State v. Treadway, 558 S.W.2d 646 (Mo.banc 1977) and State v. Cuckovich, 485 S.W.2d 16 (Mo.banc 1972).

      . State v. Cuckovich, 485 S.W.2d 16, 22 (Mo.banc 1972); State v. Harris, 425 S.W.2d 148, 155 (Mo.1968); see also State v. Land, 478 S.W.2d 290, 292 (Mo.1972).

      . State v. Cuckovich, 485 S.W.2d 16, 23 (Mo.banc 1972); State v. Harris, 425 S.W.2d 148, 155 (Mo.1968).

      . State v. Cuckovich, 485 S.W.2d 16, 23 (Mo.banc 1972); State v. Scott, 482 S.W.2d 727, 728 (Mo.banc 1972); State v. Land, 478 S.W.2d 290, 292 (Mo.1972).

      . State v. Treadway, 558 S.W.2d 646, 649[2] (Mo.banc 1977).

      . State v. Morrison, 557 S.W.2d 445, 447[1] (Mo.banc 1977).

      . State v. Land, 478 S.W.2d 290, 292 (Mo.1972).

      . State v. Lovell, 506 S.W.2d 441, 444[4] (Mo.banc 1974); State v. Hill, 556 S.W.2d 227, 229[3] (Mo.App.1977).


source: Caselaw Access Project

author: GEORGE HENRY, Special Judge.

license: Public Domain

text:
    AMERICAN SAMAX CO., a Missouri Corporation, d/b/a American Body & Equipment Co., Plaintiff-Respondent, v. CLIFF PACKER CHEVROLET, INC., an Arkansas Corporation, Defendant-Appellant.
    No. 10559.
    Missouri Court of Appeals, Southern District, Division One.
    Oct. 9, 1979.
    Maynard E. Cohick, Republic, for defendant-appellant.

      Donald E. Woody, Taylor, Stafford & Gannaway, David L. Smith, Woolsey, Fisher, Whiteaker & Stenger, Springfield, for plaintiff-respondent.
   GEORGE HENRY, Special Judge.

This is an appeal by defendant from a judgment for plaintiff entered by the Circuit Court of Greene County in a codrt-tried case. Suit was upon account with a defense of accord and satisfaction. We affirm.

Plaintiff is in the business of modifying and customizing trucks. Defendant is an automobile and truck dealer at Sheridan, Arkansas. Defendant had sold a new truck to a Tennessee lumber dealer who wanted the truck equipped with a twenty-six foot flat dump bed, hoist and “headache rack” suitable for hauling and dumping lumber. Defendant employed plaintiff to customize the truck at its Springfield location. Plaintiff did the work and delivered the customized truck to defendant in Arkansas. Defendant, in turn, delivered the truck to its customer in Tennessee. Shortly after being put into use, the dump bed and hoist gave way as the first load of lumber was being dumped. The lumber dealer called Cliff Packer, president of defendant corporation, for instructions on making repairs. Packer talked with Ron Poage, manager for plaintiff. Poage testified “Cliff (Packer), the truck’s in Nashville, Tennessee. If it can be fixed for two hundred dollars, go ahead and do it.” Packer testified that Poage authorized repairs without cost limitations. Defendant’s customer had repairs made and sent defendant the repair bill in the amount of $5,113.92. Defendant paid the bill. Plaintiff had also done other work for defendant and sent defendant three invoices totaling $8,449.00 (including one invoice in the amount of $2,431.00 for work done to customize the truck in question). Packer presented Poage a check made out to plaintiff for the amount of the three invoices ($8,449.00) less the amount defendant had paid for repairs to the damaged truck ($5,113.92). Packer said he considered the invoices paid. Plaintiff cashed the check but on its following monthly statements, billed defendant for the $5,113.92 due on its account. Defendant did not pay and suit on account followed. Defendant’s answer admits that $8,449.00 was owed on the three invoices but in defense plead defective installation of the bed and hoist and also that there was an accord and satisfaction in that plaintiff authorized repairs which plaintiff would pay for and that the accord was satisfied when defendant took credit for the amount of the repair bill. Defendant presented additional testimony from witnesses who had talked with or heard Poage make statements that plaintiff would pay the repair bill and that no cost limitation was mentioned. Defendant presented evidence as to the defective installation of the bed and hoist, as to which evidence plaintiff presented rebuttal. At the close of the evidence, defendant made an oral motion to amend its answer and to designate mislabeled defenses as counterclaims and to conform the pleadings to the evidence. Defendant was given a week to put its motion in writing. A formal motion followed, accompanied by a proposed amended answer and proposed counterclaim. The court granted leave to file the amended answer except a paragraph (previously admitted) denying that charges made in customizing the truck were fair and reasonable. Request to file the proposed counterclaims was denied. No request was made for findings of fact or conclusions of law. Judgment was for plaintiff for the full amount of its claim.

Defendant on appeal asserts two claims of error.

In this court-tried case we must sustain the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1] (Mo. banc 1976). The judgment in a court-tried case will be affirmed if it can be sustained on any reasonable theory. McHenry v. Claspill, 545 S.W.2d 690, 693[7] (Mo.App.1976).

Since no findings of fact or conclusions of law were requested or made we must assume all fact issues were found in accordance with the result reached. Duley v. Leininger, 527 S.W.2d 456, 458[2] (Mo.App.1975).

Defendant-appellant’s first point is that the judgment is erroneous for the reason that defendant proved its affirmative defense of accord and satisfaction.

“An accord and satisfaction is the result of an agreement founded upon a legal consideration . . . , which, like any other contractual agreement, must be consummated by the assent or the meeting of the minds of the parties to the agreement. The agreement constituting the accord is that the debtor pay, and the creditor receive, a different consideration or a certain sum less than the whole amount of the debt in satisfaction of the larger sum.” 1 Am.Jur.2d, Accord and Satisfaction, § 11, at 309. The trial court as trier of the facts could have believed Ron Poage when he testified for plaintiff that he never authorized anything costing more than two hundred dollars, in which event an accord was never reached.

Where the basic claim is liquidated and undisputed, as in the situation here where the three invoices totaled $8,449.00, some additional consideration is necessary to support the contract of accord and satisfaction. Alaska Federal Savings & Loan Ass’n v. Hoffman, 485 S.W.2d 118, 123 (Mo.App.1972). Defendant’s check in the sum of $3,201.08, delivered to and cashed by plaintiff, was for no more than defendant admittedly owed. The amount withheld was for the exact amount of the disputed sum (the $5,113.92 repair bill). Assuming the trial court found that the parties did agree and that plaintiff authorized the repairs without cost limitations, the trial court, as trier of the facts, could have found that, inasmuch as no part of the disputed amount was paid, there was no new or additional consideration to support the acceptance by plaintiff of a lesser amount than it claimed was due. We rule the first point against appellant.

Defendant-appellant’s second point is that “the court erred in its denial to grant leave to appellant to file ‘Proposed Counterclaim’ in that the counts thereof constituted issues tried by implied consent as defined by Supreme Court Rule 55.33(b), which requires the court to treat such issues as plead.” No express consent was given. A careful review of the record has convinced us that consent cannot be implied from the manner in which the case was tried. Defendant’s proposed counterclaim was in five counts but defendant limited the argument portion of its brief to Counts I and II. Counts III, IV and V will be considered as having been abandoned. Count I alleged a breach of implied warranty of fitness for a particular purpose and merchantability. Count II asked damages for negligent installation of the dump bed and hoist. Testimony was presented by both plaintiff and defendant on the issue of fitness for a particular purpose and on the manner of installation of the bed and hoist. If such testimony was properly admissible upon the issue created by the pleadings, such testimony cannot be considered as implied consent to try counterclaims not pled. Plaintiff’s petition alleges the furnishing of labor and materials to the defendant and an agreement to pay by defendant. Plaintiff alleges that the charges made were fair and reasonable and that, after allowing just credits, defendant owes the balance sued for. Defendant’s amended answer at time of trial alleged that defendant’s customer “was using said truck, and hoist installed therein, when due to the defective installation of said bed and hoist, the entire frame of said truck collapsed.” Defendant’s second amended answer, filed following trial with permission of the court, alleged that defendant was entitled to a recoupment in the amount of the repair bill on the truck because “plaintiff is a merchant dealing in the sale of truck attachments, including the installation thereof, said merchant holding itself out to the public as having expertise in the area of said attachments and their installation,” and the plaintiff, being aware of the intended use of the truck, “made implied warranties of fitness for a particular purpose and merchantability.” Defendant’s second amended answer again alleged defective installation of the bed and hoist. The evidence which defendant contends to have been relevant to the issues raised in its proposed counterclaim was equally relevant upon the issue of the fairness and reasonableness of the charge made by plaintiff and to defendant’s affirmative defense of accord and satisfaction. In City of Fredericktown v. Osborn, 429 S.W.2d 17, 24[9] (Mo.App.1968), the St. Louis Court of Appeals (now Eastern District), in a case involving the assertion by defendant of an affirmative defense of the running of the statute of limitations which was not properly pleaded prior to trial, the court held that, “[A] plaintiff’s consent to the trial of nonpleaded affirmative defenses should not be held to be implied unless it clearly appears that he tacitly agreed to join issue on such defenses.” Said authority is equally applicable here. We rule the second point against defendant.

The judgment is affirmed.

FLANIGAN, C. J., TITUS, J., and CAMPBELL and BARKER, Special Judges, concur.

      . For some reason, not entirely clear from the record, the difference between these two amounts ($3,335.08) was not paid by defendant. Instead, defendant sent to plaintiff a check for $3,201.08, purportedly representing the difference between the total amount due on the three invoices and the cost of repairing the truck. The discrepancy of $134.00, due and owing to the plaintiff, is, however, accurately reflected in the final judgment at trial.


author: BILLINGS, Presiding Judge.

text:
    Lawrence F. CONNER, Plaintiff-Appellant, v. CRAWFORD COUNTY, Defendant-Respondent.
    No. 11061.
    Missouri Court of Appeals, Southern District, Division Three.
    Oct. 9, 1979.
    Michael J. Pitzer, Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, St. Louis, for plaintiff-appellant.
    Eugene B. Overhoff, Cuba, for defendant-respondent.
   BILLINGS, Presiding Judge.

Plaintiff Lawrence F. Conner’s petition for damages for defendant Crawford County’s alleged negligent maintenance of a county road in 1975 was dismissed by the trial court because of defendant’s sovereign immunity from tort liability. We affirm.

Plaintiff filed suit in 1975 and defendant filed its motion to dismiss, contending plaintiff’s petition failed to state a cause of action because of the doctrine of sovereign immunity. Thereafter, and while the motion to dismiss was pending, our Supreme Court decided Jones v. State Highway Com mission, 557 S.W.2d 225 (Mo. banc 1977), and three companion cases and ruled the doctrine of sovereign immunity was abolished prospectively, except as to the four cases decided that day, “as to all claims arising on or after August 15, 1978”.

Defendant’s motion to dismiss was ruled in early 1978 after plaintiff unsuccessfully argued that Jones should be applied retroactively and a failure to do so would deny him equal protection of the law and deny him due process under the Missouri Constitution and the United States Constitution. Plaintiff sought review of the trial court’s ruling by our Supreme Court by taking his appeal there but that Court, by order transferred the appeal here “in which jurisdiction is vested.”

Here, plaintiff urges this Court to apply Jones retroactively and says that a failure to do so will result in denying him his constitutional rights. He argues that the tortious conduct in Jones occurred in 1972 and by our Supreme Court’s abrogation of sovereign immunity as to Jones and the three plaintiffs in the companion cases, the Court bestowed substantive rights on Jones and the other three plaintiffs and to withhold the same substantive right from him results in “a clear unequal application of the law and a denial of the right of due process and equal protection of the law as guaranteed by the Constitution.”

We are bound by the decisions of our Supreme Court and it is our duty to follow and apply its decisions. The alleged negligence for which plaintiff sought recovery against Crawford County occurred in 1975. “The doctrine of sovereign immunity is live and viable as to plaintiff’s claim and the trial court correctly dismissed [the] petition.” Hannon v. Pulaski County Memorial Hospital, 560 S.W.2d 615 (Mo.App.1978).

The judgment is affirmed.

All concur.

      . Wheeler v. St. Clair County Hosp. Dist. No. 1, 557 S.W.2d 233 (Mo. banc 1977); State ex rel. Racer v. Richardson, 557 S.W.2d 235 (Mo. banc 1977); Prewitt v. Parkway School District, 557 S.W.2d 232 (Mo. banc 1977).
      §§ 537.600-537.650, RSMo 1978, provide for conditions of sovereign immunity and modify the effect of Jones v. State Highway Commission, supra, particularly to the State and its political subdivisions having insurance coverage.


author: HENRY, Justice.

text:
    STATE of Tennessee ex rel. Charles A. MANER, Jr., Appellee, v. William M. LEECH, Jr., the Attorney General of Tennessee, et al., Appellants.
    Supreme Court of Tennessee.
    Oct. 9, 1979.

      Kenneth R. Herrell, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for the Atty. Gen.
    Earl S. Ailor, Asquith, Ailor & Jones, Knoxville, for Judge C. Howard Bozeman.
    Foster D. Arnett, Lewis R. Hagood, Ar-nett, Draper & Hagood, Knoxville, for Com’rs of Knox County; Frederic S. Le-Clercq, Knoxville, of counsel.
    Dale C. Workman, Asst. Law Director, Charles A. Maner, Jr., Law Director, Knox County, Knoxville, for relator.
    Jonathan H. Burnett, Hodges, Doughty & Carson, Knoxville, for Members of Knox County Quarterly Court.
   OPINION

HENRY, Justice.

This is another lawsuit coming in the wake of the adoption of Chapter 934 of the Public Acts of 1978, the legislative enactment designed to implement certain local government provisions of the 1977 amendments to Article VII of the Constitution of Tennessee.

The specific issue is whether Section 35(b) of the Public Acts of 1978, carried forward into the Official Code as Section 5-551(b), T.C.A., violates Article XI, Section 9 of the Constitution in that it applies only to Knox County and its effectiveness is not conditioned upon approval by the local legislative body or a referendum. The Trial Judge held the section to be unconstitutional, ordered a special election for the purpose of electing a county executive and a county legislative body, and held that upon the election of a county executive the county judge would “exercise only the judicial functions of an inferior court.” We respectfully differ with the Trial Judge and reverse.

The parties defendant to this action are The Attorney General of the State, the County Judge of Knox County, the three County Commissioners, members of the Quarterly Court and the Knox County Election Commission (nominal and as to relief only).

The Relator is the Law Director of Knox County. He sues in that capacity and as a private attorney general. After an evidentiary hearing the Trial Judge permitted the suit under the authority of Bennett v. Stutts, 521 S.W.2d 575 (Tenn.1975).

I.

Knox County Government Today

Knox County is governed by a county judge, three commissioners and a quarterly county court.

The office of county judge is of comparatively ancient origin. It exists by virtue of Chapter 148 of the Private Acts of 1887 and a number of acts amendatory thereto. The incumbent County Judge, the Honorable C. Howard Bozeman, assumed his present term on September 1, 1974, for an eight-year term expiring August 31, 1982. He has judicial, fiscal and administrative duties, powers and responsibilities.

A commission form of government was established by Chapter 183 of the Private Acts of 1937. The stated purpose of the creating Act was to "centralize, consolidate and reorganize county administrative affairs.” See caption of Act. The Act creates three commissioners, viz: the Commissioner of Highways, the Commissioner of Finance and the Commissioner of Health, Welfare and Institutions. Each commissioner was last elected in August 1978 for a two-year term beginning September 1,1978 and expiring on August 31, 1980.

The recent history of the Quarterly Court of Knox County has been more tempestuous than tranquil. Tennessee justices of the peace are elected for six-year terms. Article 6, Section 15, Constitution of Tennessee. They are elected every six years counting from the first Thursday in August 1870. Section 2-103, T.C.A. (bound volume). This means that the terms of all Tennessee justices of the peace expired on August 31, 1978. Not so, however, in Knox County.

In the case of Hardy v. McCanless, Knox Chancery, No. 45,600 (May 10, 1968), the Knox County Quarterly Court was reapportioned. As a part of that reapportionment, the Court’s final decree ordered that the terms of justices of the peace elected in August 1970 “will be for six years from and after September 1, 1970.” There was no appeal, hence, the members of the Quarterly Court of Knox County began serving terms at variance with those fixed by Constitution and statute.

Some nine years later the case of Schaad v. Knox County Election Commission, Knox Chancery, No. 60,666 (Aug. 2, 1977) was filed. Plaintiffs justices of the peace asserted that they had been elected to six-year terms beginning September 1, 1976. The Court, in a Declaratory Judgment, declared that Plaintiffs were entitled to serve full six-year terms from September 1, 1976, and running until August 31, 1982; that at the August 1982 election justices of the peace would be elected for two-year terms “in order to bring this county back into synchronization with the six-year cycle” required by the Constitution. This decision was not appealed.

Thus it is that under the Constitution and general statutes the terms of all justices of the peace expired August 31, 1978; whereas, by final court decree, those in Knox County do not expire until August 31, 1982. This matter is not before the Court for adjudication. For purposes of this opinion we assume that there is a properly elected quarterly county court in Knox County and that the terms of its members expire on August 31, 1982.

This was the status of Knox County’s government when the amendments proposed by the Limited Constitutional Convention were ratified on March 7, 1978, and is its status today.

II.

Constitutional Amendments

The Constitution of 1870 was silent as to the structure of county government. Article VII, Section 1, enumerated various county officers, and Section 2 determined the proper method of filling vacancies.

The Constitutional Convention of 1977 extensively rewrote these sections and provided a general framework for the government of Tennessee counties. A new office of county executive was created and, in place of the quarterly court, the amended Constitution provides for a legislative body. In pertinent part, Article VII, Section 1, now provides:

The qualified voters of each county shall elect for terms of four years a legislative body, a county executive. Their qualifications shall be prescribed by the General Assembly.
******
Any county organized under the consolidated government provisions of Article XI, Section 9, of this Constitution shall be exempt from having a county executive and a county legislative body as described in this paragraph.
The General Assembly may provide alternate forms of county government including the right to charter and the manner by which a referendum may be called. The new form of government shall replace the existing form if approved by a majority of the voters in the referendum. No officeholder’s current term shall be diminished by the ratification of this article.

It is evident that, in broad form, our Constitution now provides for three types of county government:

a. Article VII government wherein the basic units of government are the county executive and the county legislative body.
b. A consolidated form of government commonly known as Metropolitan or “Metro.” See Article XI, Section 9, last paragraph. Any county having such a government is exempt from Article VII government.
c. An alternate form of government— either chartered or unchartered — created by the General Assembly. Under this proviso the legislature is specifically authorized to create diverse forms of county government without regard to the general type established in Article VII.

When the legislature authorizes any deviation from Article VII government its action must be ratified by the people in a referendum called for that purpose.

These constitutional provisions were not self-executing; legislative action was required to give them vitality. The legislature responded with a carefully considered and comprehensive plan of implementation, to wit: Chapter 934 of the Public Acts of 1978, which appears in the Official Code as Chapters 5 and 6 of Title 5 (Section 5-501, et seq., and Section 5-601, et seq.)

III.

The Implemented Legislation

The General Assembly was faced with a two-fold problem.

First, it had to provide the specifics of the new basic structure for county government in Tennessee.

Secondly, it had to provide an orderly method of transition.

The General Assembly recognized the “complexity” of county government in Tennessee, the “myriad” problems posed by provisions of general and private acts establishing the duties and responsibilities of county officials, and emphasized the need to

provide a transition which will assure orderly election of county officers, minimum disruption in the upcoming regular August election, and continuity of county government. Ch. 934, § 42, Acts of 1978.

It is evident from Chapter 934 that the Legislature had full knowledge that while most Tennessee counties had the county judges or county chairmen and quarterly courts, others had county managers, county councils, county commissioners, and other combinations or forms of government.

It must be borne in mind that the Legislature, by the enactment of Chapter 934, has established for the time being the same form of government in all counties of Tennessee except those having a consolidated or metropolitan government and those enumerated or identifiable under Section 5— 551, T.C.A. See Sections 5-501 and 5-601. We say, “for the time being,” because, responsive to Article VII of the Constitution, further counties may adopt metropolitan government and all counties may have an alternate form of government, in each instance with legislative action and popular approval.

Section 42, Acts of 1978, additionally reads, in part, as follows:

The General Assembly further finds and declares that in certain counties where there exist alternative forms of county government, the failure to provide a reasonable period of transition to alter the form of county government created by this act will be disruptive of the orderly process of government in such counties and will create unique problems which can be better resolved by the General Assembly during the period of transition and by the voters of such counties if they desire to adopt an alternative form of county government pursuant to Article VII or Article XI of the Tennessee Constitution.

This language is unfortunate. Read literally all counties had “alternative forms of county government” because none had Article VII government. Apparently the Legislature had in mind the counties excepted under Section 35 of the Act (Section 5-551, T.C.A.), where transition in some instances would have been troublesome. All that may be said with certainty is that the legislature showed a commendable concern for an orderly transition.

The ensuing sentence is even more confusing:

It is the intention of the General Assembly by this act to create a uniform system of county government by the establishment of the county legislative body and the office of county executive as the basic units of government, while providing a reasonable period of transition for certain counties to avoid the disruptive effects of rapid change in their government. (Emphasis supplied).

A literal reading of this language produces the conclusion that the Act creates a uniform system of county government to which all counties, except those having metropolitan government, must ultimately convert. Read thusly, the Act would be at variance with the Constitution and at odds with the general scheme of the Act itself. Again, the Act creates a basic plan of county government, applicable to all Tennessee counties except a county having metropolitan government, and those opting for a consolidated or an “alternate” form in the future. Thus, the form of government, subject to Section 5-551, is uniform “for the time being.”

The declaration of legislative intent (not codified) must yield to the clear language of the Act and its evident purposes. The fact that this language conflicts with remaining portions of the Act and does not harmonize with the Constitution has no catastrophic result. A special provision takes priority over a general provision within a statute, Woodroof v. City of Nashville, 183 Tenn. 483, 192 S.W.2d 1013 (1946). Other special and specific provisions of the Act prevail. The Act itself comports, in the totality of its objectives and provisions, with our basic charter.

It is the language of this section that has caused much of the confusion in this case. This Court perceives no significant problems and has sought to clarify this situation as a part of the decision in this action and as a guideline for use in other litigation.

IV.

Transitional Provisions for Knox County

The General Assembly, in the adoption of the implemental legislation, very properly balanced the existing situation in Knox County against the demands for interim adherence to an ultimate standard set by the legislature to provide a constitutional and basic form of government.

Section 35 of the Act carried forward into the Official Code as Section 5-551 contains transitional provisions. Subsection (b) relates to Knox County. The first paragraph of the subsection recites a legislative intent to provide a reasonable transition period within which to establish a new form of county government. This is in keeping with the theory and intent of the Act. Next it recognizes that it has been judicially decreed that the terms of office of the present members of the quarterly county court do not expire until 1982. This is in keeping with the constitutional mandate that “[n]o officeholder’s current term shall be diminished by the ratification of this Article.” Article VII, Section 1, Constitution of Tennessee.

Next the Legislature recognizes that the adoption of a metropolitan form of govemment “is now pending and is scheduled to be voted upon by the people in the 1978 regular November election.” Therefore, the Legislature announces an intent to alter the form of government on September 1, 1980. This latter provision, construed with the third paragraph of the section, means a new form of government, which may or may not be in the form of a metropolitan charter.

Thus, the first paragraph of Section 5-551(b) was in the nature of a preamble reciting legislative intent.

The second paragraph continues the form of government until September 1, 1980, except for the terms of office of the commissioners. [The three commissioners were privileged to run for election in August 1978 and did so. See Section II, supra]. This is yet another transitional provision. It specifies that their terms shall be two years and end September 1, 1980 [actually August 31, 1980]. This is but a repetition of existing law.

Finally, the third paragraph provides in substance that if an “alternate form of government” is not established pri- or to January 1, 1980, Article VII government as established by the Act comes into existence. The phrase “alternate form of government” must be construed to mean metropolitan government but necessarily includes such other “alternate” forms as may be established by the Legislature and approved by the people. If such a form of government is not adopted, a county executive and a county legislative body shall be elected at the August election in 1980. Implicit in this paragraph is the proposition that if a metropolitan charter were adopted, it would become the effective government of Knoxville and Knox County.

We find no constitutional infirmity in this section. Reduced to simplicities it merely provides the people of Knox County an opportunity to join with the City of Knoxville in creating a consolidated form of government, one of the three broad types of governmental devices specifically recognized by our Constitution.

By preserving the status quo, pending the action of the people at the metropolitan referendum, the General Assembly abided both the spirit and the letter of our Constitution and did not compromise any of its principles.

The metropolitan charter was not adopted with the result that the basic form of Tennessee county government goes into effect in 1980. This is the legislative scheme; we believe it to be valid..

It is the duty of this constitutional court of last resort to resolve every reasonable doubt in favor of the constitutionality of a legislative enactment, Blankenship v. Old Republic Insurance Co., 539 S.W.2d 23 (Tenn.1976); indeed there is a strong presumption in favor of their constitutionality. Bozeman v. Barker, 571 S.W.2d 279 (Tenn.1978). This thrusts upon those who attack a statute a heavy burden. West v. Tennessee Housing Agency, 512 S.W.2d 275 (Tenn.1974).

It has been said that statutes must be construed “with the saving grace of common sense.” Our courts have repeatedly held that absurdities should be avoided, Roberts v. Cahill Forge & Foundry Co., 181 Tenn. 688, 184 S.W.2d 29 (1944); that the courts should not place upon a statute a construction which would work to the prejudice of the public interest, Burns v. Duncan, 23 Tenn.App. 374, 133 S.W.2d 1000 (1939), and a construction which impairs, frustrates or defeats the object of a statute should be avoided, First National Bank v. McCanless, 186 Tenn. 1, 207 S.W.2d 1007 (1948). These holdings are analogous to the instant case.

The General Assembly was motivated by a stated intent to “assure orderly election of county officers, minimum disruption . and continuity of county government.”

Assume, for the purpose of demonstrating the chaotic condition that would have existed in Knox County, that the Legislature did not include Section 35(b). Assume further the success of the referendum on metropolitan government. The result would have been that Knox County would have been served:

a. by a board of commissioners until September 1, 1978;
b. by a county executive and county legislative body from September 1,1978, until July 1, 1979, the proposed effective date of metro.
c. by a metropolitan charter form of government commencing July 1, 1979.

Thus Knox County would have had three governments in less than one year. The Legislature acted responsibly and on a reasoned and rational basis in providing a hiatus in the implementation of an Article VII form of government. The foreseeable result of a contrary course would have been massive confusion, acute fiscal detriment and citizen discontent. The proper performance of the legislative function demands that legislation designed to restructure county government be adapted to minimize disruption, promote orderly transition, conserve public funds and respect the interests of the involved citizenry. The quotation from Justice Holmes by counsel for the commissioners is apt: “We must remember that the machinery of government would not work if it were not allowed a little play in its joints.” Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 51 S.Ct. 228, 229, 75 L.Ed. 482 (1931).

The Chancellor, in declaring Section 5— 551(b) unconstitutional, relied upon Farris v. Blanton, 528 S.W.2d 549 (Tenn.1975), and correctly quoted this Court as holding:

The test is not the outward, visible or facial indices, nor the designation, description or nomenclature employed by the Legislature. Such a criterion would emasculate the purpose of the amendment. The whole purpose of the Home Rule Amendment was to vest control of local affairs in local governments, or in the people, to the maximum permissible extent. The sole constitutional test must be whether the legislative enactment, irrespective of its form, is local in effect and application. 528 S.W.2d at 551

We reiterate this correct general statement of the law; however, it must be analyzed in the context of its pronouncement. The “Public Act” in Farris was in reality an amendment to a private act and was passed as such because legislative courtesy prevented its adoption as a private act. As we stated, “this was a purely local issue and . in reality a general law was used as a device to amend a private act which could not be passed because of a rift in the Shelby County delegation.” 528 S.W.2d at 555-56.

Here we deal with a general law of statewide application, containing transitory provisions necessitated because of unique conditions in certain specified counties. Farris has no application.

By parity of reasoning, if Article XI, Section 9, precludes the transitional provisions with respect to Knox County on the basis that it is “private or local in form or effect applicable to a particular county,” then the entire Act is suspect. This follows from the fact that the provisions are local in effect as to any given county. From this it would follow that the Legislature could not enact a valid law applicable to all municipalities without following Article XI, Section 9, and having referenda, county by county. Such a result would be untenable. This is a general law. The right of the Legislature to provide a basic structure for Tennessee counties is not fairly debatable.

We hold that Section 5-551(b), T.C.A., is constitutional.

V.

Appointive Power of the Quarterly Court

The appeal of the county judge specifies as an issue “whether Article VII, Section 2, of the Constitution of Tennessee, removed the appointive power of the quarterly court to fill vacancies in county offices.”

Article VII, Section 2, provides, in part, that “[v]acancies in county offices shall be filled by the county legislative body. . . ”

This section is non-self-executing and is dependent for its vitality upon the adoption of legislation. Chapter 934, Public Acts of 1978, gave the section vitality; but effective on and after September 1, 1980, when the county legislative body is inducted into office. Until that time the appointive power resides in the quarterly court.

VI.

Conclusion

The existing government of Knox County continues until August 31, 1980. The three commissioners and the quarterly court remain in office until that time. The county judge remains in office until August 31, 1982, in accordance with the constitutional mandate against diminishing the term of any elected officeholder. His duties, however, from and after September 1, 1980, are wholly judicial. This is the orderly transition prescribed by the General Assembly. The county executive and the members of the county legislative body elected at the general election of 1980 will serve for a period of two years in order to bring Knox County into synchronization with the general statutory scheme.

Reversed.

BROCK, C. J., and FONES, COOPER and HARBISON, JJ., concur.

      .The question of standing was withdrawn during the course of oral argument. This question, therefore, is not before the Court. This opinion proceeds upon the assumption that the question of standing was properly decided in the trial court.

      . See Perry v. Banks, 521 S.W.2d 549, 550-51 (Tenn.1975) (Henry, J., and Fones, C. J., dissenting) for history and comment upon the governing statutes.

      . The constitutionality of this act was upheld in Troutman v. Crippen, 186 Tenn. 459, 212 S.W.2d 33 (1937).

      . The Metropolitan Government of Nashville and Davidson County is the only such consolidated government in Tennessee.

      . See Washington County Election Commission v. City of Johnson, 209 Tenn. 131, 350 S.W.2d 601 (1961); Biggs v. Beeler, 180 Tenn. 198, 173 S.W.2d 144, 946 (1943); Friedman v. Mathes, 55 Tenn. 488 (1872).

      . See Leech v. Wayne County, - S.W.2d - (Tenn.1979) (filed Sept. 24, 1979), for further discussion and identity of counties.

      . The first three paragraphs of Section 5-551(b) read as follows:
      County Board of Commissioners in Knox County. It is the legislative intent of this subsection to provide a reasonable transition period for counties having a county board of commissioners form of government on January 1, 1978, to establish a new form of county government. Since it has been judicially decreed that the present term of members of the quarterly county court in such counties shall extend until 1982 and since a measure to organize the government of such counties as a metropolitan form of government under Article XI, § 9, is now pending and is scheduled to be voted on by the people in the 1978 regular November election, it is declared to be the intention of the general assembly to alter the form of government in such counties on September 1, 1980.
      With respect to any county having a county board of commissioners form of government established by private act, the form of government of such county existing on January 1, 1978, except for the term of office of certain members of the commission shall remain in form, effect and operation until September 1, 1980. Notwithstanding the provisions of any private act to the contrary, the term of county commissioners elected at the 1978 regular August election shall be two (2) years and shall expire on August 31, 1980, and such county offices shall be abolished on September 1, 1980.
      If an alternate form of government is not established prior to January 1, 1980, the form of county government shall be determined in accordance with chapters 1, 5 and 6 of this title and in the regular August election of 1980, a county executive and a county legislative body shall be elected as provided by the laws governing the election of county officials in such county.

      . In 1977 a metropolitan charter commission was created by the Knox County Quarterly Court and the Knoxville City Council. A metropolitan charter commission was appointed, held extensive hearings, and submitted a proposed charter. It was rejected in an election conducted November 7, 1978, eight months after the amendment to the Constitution was ratified.

      . The proposal was defeated by a vote of 43,-333 to 39,939.


author: COOPER, Justice.

text:
    Harold GRAVES, Petitioner, v. Dorothy SAWYER and Murrell Goins, Respondents.
    Supreme Court of Tennessee.
    Oct. 15, 1979.
    William H. Goddard, Strand & Goddard, Dandridge, for petitioner.
    Jerry K. Galyon, Galyon & Stokes, Sevi-erville, for respondents.
   OPINION

COOPER, Justice.

Certiorari was granted in this case to consider whether a voluntary, unconditional payment of interest on a promissory note tolls the statute of limitations to the date of payment. We hold that it does.

On April 29, 1969, respondents, Dorothy Sawyer and Murrell Goins, executed a promissory note in the amount of $2500.00 payable to Ruby Graves and Harold Graves. The note was due 180 days after execution.

No payments were made on the principal. However, respondents did make three payments of interest on the note after its due date, the final payment of interest being made on August 2, 1972.

On August 24, 1976, petitioner filed suit to collect the note, and all interest and charges due. Respondents admitted executing the note, and relied upon the six year statute of limitations as a defense. Petitioner insisted the payment of interest tolled the statute of limitations and that the action to collect the note was not barred.

The chancellor agreed with the petitioner and entered a decree against the respondents for $3932.46. The Court of Appeals reversed the chancellor’s decree and dismissed the action, primarily on the authority of Hall v. Skidmore, 26 Tenn.App. 1189, 168 S.W.2d 800 (1942) and at 180 Tenn. 23, 171 S.W.2d 274 (1943). In following precedent, the Court of Appeals called upon this court to reconsider the issue of whether payment of interest tolls the statute of limitations.

In the Skidmore case, Mr. Stovall executed a demand note in June, 1932, payable to Mr. Hall. Two payments were made by Mr. Stovall on the principal of the note, the last being in October, 1936. Several payments of interest were made on the note, the last payment being in January, 1940, by check bearing the notation “Interest due 1/12/40.” Mr. Stovall died the following month. Mr. Hall filed a claim against Mr. Stovall’s estate predicated on the note. The executrix, Mildred Skidmore, plead the six year statute of limitations. The court held that the partial payments of principal and the payments of interest standing alone did not toll the statute of limitations.

In the second Skidmore opinion, the one by this court, it was pointed out that:

The Court of Appeals correctly held that the notation of interest payments “constitutes ‘an acknowledgment of the debt’ ”. This alone however, amounts to no expression of a “willingness to pay”. There is nothing in the record to indicate the circumstances under which these payments were made. The plaintiff Hall did not testify in the case. We have uniformly held that the acknowledgment of the debt must be “coupled with an expression of a willingness to pay.” Such an expression might be implied from words or acts of the debtor, but, in whatever form it is to be found, it must amount to the recognition of a continuing obligation. In other words, the acknowledgment of the debt will be construed as a “willingness to pay” when the facts and circumstances surrounding the parties indicate an intention on the part of the debtor to revitalize the original promise, or “as imparting vitality to the remedy (which, by lapse of time, has become extinct), and thus enabling the creditor to recover upon his original contract.

The court goes on to note that other states hold that an unqualified acknowledgment of an existing debt implies a promise to pay it, but declined to adopt that position, stating:

We think it would be highly detrimental to the public interest for us to depart from the rule announced in Steel v. Matthews, 7 Yerg. 313, 317, Fuqua v. Dinwiddie, supra, [74 Tenn. 645], and Warren v. Cleveland, supra, [111 Tenn. 174, 76 S.W. 911, 102 Am.St.Rep. 749], as well as other cases.
* * * * * *
The holders of promissory notes and other evidence of contractual obligations are well aware of the rule announced in this State. While, as above indicated, we hold that the necessary “expression of a willingness to pay” may be implied from words or acts of the debtor, indicating a recognition of a continuing obligation, we fail to find in the present record sufficient evidence of words or conduct to give rise to this implication.

In asking us to reassess the rule followed in the Skidmore case, the Court of Appeals voiced the opinion that the rule “is entirely too harsh with dealings where a creditor is tolerating and forbearing. It likewise is too harsh and unrealistic in dealing with transactions between close relatives and good friends. Under our . . rule a creditor dare not permit his close, trusted friend, business associate, or relative to extend his payments on an indebtedness, regardless of the promptness with which they are made, beyond the six years from the due date, less he lose his right to recover the balance. The facts in both the Skidmore and Coley cases, supra, bear out this grim fact.”

We agree with this assessment of the rule set forth in the Skidmore case. Further, and contrary to the holding in the Skidmore case and cases predicated thereon, we think the affirmative act of a debtor in making a voluntary, unconditional payment on a debt, or interest due on a debt, is such an act that implies “a willingness to pay.” What act, short of an unconditional, express promise to pay, could more strongly indicate a willingness to pay than the payment itself?

Partial payments of the principal and payment of the interest are said to stand on the same footing, as affecting limitation of actions, with the real question being the intention of the payor to recognize the obligation by making the partial payment. In the absence of statute, it is a general rule that the payment of interest on a debt is an acknowledgment from which a promise to pay the principal obligation may be implied, and operates to keep the debt alive for the statutory period from that time. 51 Am.Jur.2d, Limitation of Actions, § 371. Of like accord, see Restatement (Second of Contracts § 86 (emphasis supplied).

Ultimately, the effect of part payment of a debt or a payment of interest on a debt depends, of course, upon the circumstances in which the payment is made. But in the absence of evidence to the contrary, we hold that such a payment is an acknowledgment of the debt and implies a promise of payment which operates to keep the debt alive for the statutory period from that time. Cases holding to the contrary, such as the Skidmore and Coley cases, are overruled.

In the instant case there is no evidence that the payment of interest on the note by respondents was other than voluntary and unconditional. It follows that the statute of limitations was tolled by the payment of interest and that the action to collect the note was filed within time.

The judgment of the Court of Appeals is reversed. The decree of the chancellor is reinstated and affirmed. Costs of the cause will be paid by respondents, Dorothy Sawyer and Murrell Goins.

BROCK, C. J., and FONES, HENRY and HARBISON, JJ., concur.

      . Harold Graves is now sole owner of the note. Ruby Graves is deceased.

      . T.C.A. § 28-309.

      . Coley v. Coley, 48 Tenn.App. 628, 349 S.W.2d 183 (1960).


author: HARBISON, Justice.

text:
    STATE of Tennessee, Petitioner, v. Berton Lawrence LAKIN, Respondent.
    Supreme Court of Tennessee.
    Oct. 15, 1979.

      John C. Zimmermann, Asst. Atty. Gen., Nashville, for petitioner; William M. Leech, Jr., Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, Richard R. Vance, Asst. Dist. Atty. Gen., Knoxville, of counsel.
    William E. Phillips, Phillips & Hale, Rog-ersville, for respondent.
   OPINION

HARBISON, Justice.

In this case the Court of Criminal Appeals held that the trial court should have sustained a defense motion to suppress evidence. Acting without a warrant, sheriffs’ officers seized cultivated marijuana after a search of respondent’s farm. We granted the State’s petition to give further consideration to the issues raised.

The facts as developed at an informal suppression hearing are summarized in the opinion of the Court of Criminal Appeals as follows:

“The farm itself is located in Hancock County, but the tip which led officers to the property was first communicated to the Hawkins County sheriff’s department, then relayed to Hancock County officers. The substance of the information was that either a moonshine still or a marijuana patch was on Lakin’s property.
“Acting within two hours of receiving the tip, officers from both counties parked on the road and followed a path to a house on the farm. Not knowing whether anyone was in the house, the officers knocked but received no answer. They proceeded to a nearby shed but found no one there. From there, the men followed a forked path, one branch winding roughly one-fourth mile up a hill to a barn (blocked from view from the house by leaves), adjacent to which was a garden bounded by woods and thicket. From the upper garden, a path led to a marijuana patch 50 to 100 feet away, although the path itself wound around for approximately 150 feet. The plants in this patch, the largest of which were over four feet tall, had not recently been watered, but there was a hose supplied by a dammed creek nearby. A separate water line branched off from the main line to the creek and led down through the garden to the barn. Another path led from this patch to a separate patch, which had been watered recently, where the plants were roughly two to four feet tall.”

Upon these facts, the Court of Criminal Appeals held that the search was unreasonable under the Fourth Amendment to the United States Constitution and Article I, section 7 of the state constitution. The Court relied upon its previous decision in State v. Wert, 550 S.W.2d 1 (Tenn.Cr.App.1977), in which this Court denied certiorari for jurisdictional reasons.

The State does not challenge the statement of facts quoted above, most of which were stipulated. It urges this Court to overrule Wert, which it insists is not in harmony with federal cases and decisions of the great majority of states on the subject of search and seizure. The State also urges the Court to modify previous decisions in this jurisdiction cited and relied upon by the Court of Criminal Appeals.

In Wert, supra, in a divided decision, the majority of the Court of Criminal Appeals concluded that the “open fields” doctrine, stated by the United States Supreme Court in the case of Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), had been significantly modified by later decisions, particularly Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In the course of its opinion the Court cited and relied upon United States ex rel. Gedko v. Heer, 406 F.Supp. 609 (W.D.Wis.1975). The dissenting member of the Court of Criminal Appeals disagreed and, citing cases from many of the intermediate federal appellate courts, asserted that the principles announced in Hester are still viable.

We note at the outset that the Gedko case, supra, was subsequently vacated and summarily dismissed on appeal by the United States Court of Appeals for the Seventh Circuit. 588 F.2d 840 (7th Cir. 1978). Undoubtedly the reason for this action was that in the case of United States ex rel. Saiken v. Bensinger, 546 F.2d 1292 (7th Cir. 1976), cert. denied, 431 U.S. 930, 97 S.Ct. 2633, 53 L.Ed.2d 245 (1977), that court reaffirmed the “open fields” doctrine, which was questioned by the District Court’s opinion in Gedko. See discussion in Sesson v. State, 563 S.W.2d 799, 803 (Tenn.Cr.App.1978).

There is no question but that in Katz v. United States, supra, the Supreme Court of the United States emphasized the “reasonable expectation of privacy” of an individual rather than the specific location of the premises searched or the nature of the property seized. There are authorities which have expressed the view that Katz has modified the holding in Hester. The degree and extent of that modification, however, may be more one of factual application than of substantive law. Certainly the Supreme Court of the United States has continued to cite Hester and to apply it in recent cases. For example in Air Pollution Variance Board of Colorado v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court unanimously reversed the Colorado state courts and held that there was no Fourth Amendment violation when a State Health Department inspector entered the premises of a corporation in order to make tests of plumes of smoke emitted from its chimneys. The Supreme Court held that any invasion of privacy, if one could be said to exist, was “abstract and theoretical.” 416 U.S. at 865, 94 S.Ct. 2114. The fact that the inspector had entered upon the corporate premises without a warrant was held immaterial. The Court said:

“Depending upon the layout of the plant, the inspector may operate within or without the premises but in either case he is well within the ‘open fields’ exception to the Fourth Amendment approved in Hester.” Ibid.

Hester was also referred to in United States v. Santana, 427 U.S. 38, 42, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). And in the more recent case of General Motors Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), the Court upheld the warrantless seizure of automobiles on “public streets, parking lots, or other open places”, citing Hester. In the same opinion, however, the Court held invalid a warrantless search of private corporate officers, reiterating the “governing principle” that:

“except in certain carefully defined classes of cases, a search of private property without proper consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” 429 U.S. at 352-53, 97 S.Ct. at 628-629. Quoting Camara v. Municipal Court, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).

As pointed out in the dissenting opinion in Wert, supra, several intermediate federal appellate courts and also many state courts have concluded that the “open fields” doctrine is still viable and that searches and seizures made away from a residence and its immediate environs and outbuildings may be accomplished without a search warrant. The subject was recently reviewed in depth in the case of People v. Lashmett, 71 Ill.App. 429, 27 Ill.Dec. 657, 389 N.E.2d 888 (1979). There a tractor, suspected to have been stolen, was observed on the defendant’s property by the sheriff from an airplane. Later he went upon the defendant’s property and obtained the serial number and other identifying data from the tractor. Verifying that it was indeed stolen, he obtained a warrant and seized the vehicle. Relying upon the “open fields” doctrine and finding that the tractor was situated beyond the residence and its curtilage, the court sustained the search.

Our examination of the federal cases and state decisions on the subject leads us to question the conclusion reached by the majority of the Court of Criminal Appeals in Wert that serious inroads have been made upon the “open fields” doctrine by Katz, supra. If the disposition of this case depended upon federal law alone, a very close question would be presented. Quite possibly, according to the present weight of authority, the search might be sustained under the Fourth Amendment.

That conclusion, however, is certainly not free from doubt. The conduct of the officers in the present case, as best we can glean from the record, was not very similar to that involved in the Hester case. There, police officials went upon the premises of the defendant and concealed themselves at a distance of from fifty to one hundred yards from his residence. They saw him dispense illegal whiskey and recovered containers when he and one of his customers discarded them while fleeing from the officers.

In the present case, it appears that the officers had very little information concerning the defendant, his conduct or the property in question when they undertook to conduct the search. Apparently all the information they had was that there might be “a moonshine still or a marijuana patch” on “the old Jones place.” Armed only with this information, four police officers, two from Hawkins County and two from Hancock County, entered upon this farm, parking their cars at a roadway more than a quarter of a mile from the house. Finding no one in the residence, they then proceeded at least another quarter mile into the farm, beyond a barn, and near the barn and a garden discovered the contraband material.

Under no circumstances could this be deemed a mere “abstract and theoretical” intrusion upon the property. Probably the area in which the marijuana was found was outside the “curtilage” of the residence as that term is usually understood, although it was near a barn and garden which were apparently in use by the occupant of the farm.

The application of the “open fields” doctrine or any other aspect of the law of search and seizure depends upon the facts, not upon neat phrases. In the end, under both state and federal constitutions, the issue in each case is whether or not a particular search or seizure was reasonable under all of the facts and circumstances. Words and phrases simply are not substitutes for analytical examination of the conduct of police officials. The constitutionally guaranteed freedom from arbitrary or unreasonable intrusions upon persons and property operates as a limitation upon police authority. On the other hand, police officials, in the enforcement of criminal laws, obviously have a duty to detect criminal activity and obtain evidence to convict criminal offenders. In their decisions, the courts, both state and federal, have attempted to accommodate and strike a fair balance between these sometimes competing interests.

We recognize the difficulty police officers have in enforcing the laws against clandestine illegal activity, as emphasized by the State in its petition for certiorari. We have no desire to make that task more difficult or to impose unnecessary impediments. On the other hand, the obtaining of a warrant does not ordinarily impose insurmountable difficulties, particularly in the absence of an emergency. The courts of this jurisdiction have not been unreasonable in their interpretation of warrants or their execution, where officers have made a conscientious effort to obtain a valid warrant prior to making a search. See, e. g., Norton v. State, 207 Tenn. 656, 343 S.W.2d 361 (1960); Peters v. State, 187 Tenn. 455, 215 S.W.2d 822 (1948); Lawson v. State, 176 Tenn. 457, 143 S.W.2d 716 (1940).

Irrespective of federal cases on search and seizure, this Court has recognized that there are indeed areas of land which in particular circumstances may be beyond the protection of Article I, section 7 of the state constitution. In Chico v. State, 217 Tenn. 19, 394 S.W.2d 648 (1965), the Court said:

“The law is settled that when the land on which the evidence is found is not possessed as a part of the curtilage or used in the daily operation of the premises, then the constitutional provision against unreasonable searches and seizures does not apply.” 217 Tenn. at 25, 394 S.W.2d at 651.

Insofar as our research reveals, this Court has never used the phrase “open fields”, and its decisions applying the state constitution have been somewhat more restrictive than comparable federal cases. The State recognizes this in its brief and requests us to overrule earlier cases which on similar facts have invalidated searches like that involved here.

Some two years after Hester was decided by the Supreme Court of the United States, this Court rendered its decision in Welch v. State, 154 Tenn. 60, 289 S.W. 510 (1926). There police officers entered a one-acre tract, located some three hundred yards from the residence of the accused. This area was enclosed entirely by a wire fence and was used for confining livestock. From this fence another fence extended beyond and enclosed the bam of the defendant. The trial judge charged the jury that as a matter of law no warrant was required for the sheriff to search this lot. This Court reversed. It construed the state constitution, which secures “persons, houses, papers and possessions,” to include occupied, fenced areas used daily in connection with and as a necessary part of farming operations. The Court did state that the word “possessions” would not include “wild or waste lands, or lands that were unoccupied.” 154 Tenn. at 63, 289 S.W. at 511.

In Peters v. State, 187 Tenn. 455, 457, 215 S.W.2d 822 (1948), the Court stated that the term “possessions” as used in the state constitution “includes more than the ‘curti-lage.’ ”

In the later case of Allison v. State, 189 Tenn. 67, 222 S.W.2d 366 (1949), a warrant-less search was invalidated where:

“The wood-lot where the still and nine gallons of illicit whiskey were found was a half-mile from Defendant’s dwelling, but the lot was a fenced enclosure used for pasture.” 189 Tenn. at 68, 222 S.W.2d at 366.

On the other hand, in Chico v. State, supra, the Court sustained a search which occurred in a “honeysuckle thicket” some thirty or forty yards from the defendant’s house and not within the enclosure surrounding the house. The Court noted that there was “no proof in the record that the honeysuckle thicket where the stolen articles were found was used in the daily operations of the defendant’s premises.” 217 Tenn. at 25, 394 S.W.2d at 651.

Although the decisions in this state may be somewhat more restrictive than those in other states or than federal decisions, no compelling reason has been demonstrated in this case for modifying or overruling them. Ordinarily officers searching occupied, fenced, private property must first obtain consent or a warrant; otherwise they proceed at the risk that evidence obtained may be suppressed. When a warrantless search is challenged, an exception to the search warrant requirement must be shown.

From such proof as is in the record before us, we are unable to conclude that the evidence preponderates against the finding of the Court of Criminal Appeals that the area searched was not “wild and wasteland” which might be “roamed at will without a search warrant.”

The judgment of the Court of Criminal Appeals is affirmed at the cost of petitioner.

BROCK, C. J., and HENRY, COOPER and FONES, JJ., concur.

      . E. g., 1 Wharton’s Criminal Procedure § 150 (12th ed., C.E. Torcia 1974).

      . We are aware that in Sneed v. State, 221 Tenn. 6, 13, 423 S.W.2d 857 (1968), the Court stated that the Fourth Amendment and Article I, section 7 of the state constitution were identical in intent and purpose. We do not depart from that statement and agree that ordinarily the two constitutions should be construed alike where possible. Where, however, as in the particular phase of search and seizure law under consideration, there has been a settled development of state constitutional law which does not contravene the federal, we are not inclined to overrule earlier decisions unless they are demonstrably erroneous.


text:
    STATE of Tennessee, Petitioner, v. John DOE, Respondent.
    Supreme Court of Tennessee.
    Oct. 15, 1979.

      John C. Zimmerman, Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for petitioner.
    Charles D. Susano, Jr., Doris C. Allen, Knoxville, for respondent; Bernstein, Susa-no, Stair & Cohen, Knoxville, of counsel.
   OPINION

COOPER, Justice.

We granted certiorari to consider a decision by the Court of Criminal Appeals, holding that the provisions of T.C.A. § 40-4001 et seq. require the destruction, in certain instances, of all records relating to a charge brought against an individual, rather than merely those records open to public inspection. We affirm.

The instant case originated with the arrest of the respondent on a charge of making an obscene telephone call. Ultimately, he was acquitted. He then filed a petition under T.C.A. § 40-4001, seeking to have all references to the charges brought against him removed from records maintained by any public official. The statute provides, in part:

All public records of a person who has been charged with a misdemeanor or a felony, and which charge has been dismissed, or no true bill returned by a grand jury, or a verdict of not guilty returned by a jury or a conviction which has by appeal been reversed, shall, upon petition by said person . . . , be removed and destroyed .

At present, the only records as to which there remains any controversy concerning the applicability of the statute are certain jail and identification records, maintained by the sheriff, and a file kept by the office of the district attorney general. The parties have stipulated that, while neither the sheriff nor the district attorney permit public inspection of these records, both distribute them to other law enforcement agencies, at their discretion. The trial judge denied the petition insofar as it sought the destruction of those references to the respondent in materials maintained by the sheriff or the district attorney, holding that these were not “public records” within the meaning of the statute. The Court of Criminal Appeals reversed.

As we intimated earlier, it is the State’s contention that the statute, when it speaks of the destruction of public records, refers only to those records open to public inspection and thus does not apply to those at issue here. We do not believe that this remedial legislation merits so narrow a construction. Cf. Dailey v. State, 225 Tenn. 472, 470 S.W.2d 608 (1971). As in all instances of statutory interpretation, we must attempt to ascertain and give effect to the intent of the legislature. See, e. g., Parkridge Hospital, Inc. v. Woods, 561 S.W.2d 754 (Tenn.1978); State ex rel. Rector v. Wilkes, 222 Tenn. 384, 436 S.W.2d 425 (1968). In doing so, we rely, whenever possible, primarily upon the ordinary meaning of the language used. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977). However, in the statute at issue here, the key terms— “public records” — are ambiguous: What is a “public record” depends on the context in which the terms are employed, and among the meanings generally accepted are those that would support the position of either the State or the respondent. Losavio v. Mayber, 178 Colo. 184, 496 P.2d 1032 (1972); Linder v. Eckard, 261 Iowa 216, 152 N.W.2d 833 (1967); MacEwan v. Holm, 226 Or. 27, 359 P.2d 413 (1961). Compare State v. Brantley, 201 Or. 637, 271 P.2d 668 (1954) [records “ ‘ “made by an officer in pursuance of a duty, the immediate purpose of which is to disseminate information to the public, or serve as a memorial of official transactions for public reference” ’ ”] with Losavio v. Mayber, supra, [“ ‘all writings made ... or kept by the state . for use in the exercise of functions required or authorized by law,’” quoting Colo.Rev. Stat.1963, 113-2-2(2) (1969 Supp.)]. Thus, we must define “public records,” for the purposes of this statute, in such a way as to effect the apparent intent of the legislature, as that intent can be derived from the statute as a whole. See Tidwell v. Collins, 522 S.W.2d 674 (Tenn.1975); Corn v. Fort, 170 Tenn. 377, 95 S.W.2d 620 (1936). Cf. Southern Railway Co. v. Fowler, 497 S.W.2d 891 (Tenn.1973).

The intent of the legislature in enacting the statute at issue, in our opinion, was to prevent a citizen from bearing the stigma of having been charged with a criminal offense, where he was acquitted of the charge or prosecution of the charge was abandoned. It is common knowledge that the preferment of charges against a citizen can have a severe impact upon his reputation, regardless of whether or not a conviction results, and that this impact can be greatly increased by the dissemination of information concerning the accusation by public officers, with the official sanction that this implies. Concern for this impact has prompted other jurisdictions to make various efforts to limit any lasting prejudice that might result from the mere fact of arrest. See, e. g., Davidson v. Dill, 180 Colo. 123, 503 P.2d 157 (1972); Doe v. Commander, etc., 273 Md. 262, 329 A.2d 35 (1974); but cf. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). See also Annot., 46 A.L.R.3d 900. Slight reflection makes it apparent that the similar concerns that prompted our legislature to enact T.C.A. § 40-4001 and its associated provisions would not be satisfied by eliminating only those records of a criminal charge to which the public has access. An equal or greater problem is presented by the dissemination of the internal records of law enforcement agencies to interested persons or organizations, both public and private, as well as by the use of those records by the agencies themselves in the course of their investigations. The stigma that attaches to one charged with a crime can best be minimized only by removing any reference to the accusation in all records maintained by a public officer, whether those records be for public inspection or internal use. Accordingly, for the purposes of this statute, we hold that “public records” refers to all records maintained by a public official, and we thus concur in the finding of the Court of Criminal Appeals that the statute mandates the expunction of the records in dispute in the instant case.

Contrary to the claims of the State, such an interpretation of the statute does not make it unconstitutional. As we have held previously, the determination of what records shall be maintained by a public officer is the prerogative of the legislature, and thus the limitations imposed by this statute do not encroach upon the proper spheres of the other branches of government. Underwood v. State, 529 S.W.2d 45 (Tenn.1975). Finally, even were we to assume, as contended by the State, that the “attorney’s work product” privilege has any application apart from its relevance to the rules of discovery, and thus would protect the records to the district attorney at issue here, that privilege is not of constitutional dimensions, and thus could be abrogated by statute.

The judgment of the Court of Criminal Appeals is affirmed, and the cause remanded for the implementation of this decision.

BROCK, C. J., and FONES, HENRY and HARBISON, JJ., concur.

      . Apparently finding fault with this stipulation, the State has filed a “motion for consideration of post-judgment facts,” under rule 14 of the Rules of Appellate Procedure, seeking to bring certain matters to the attention of the court. These matters, if true, were equally true at the time of trial. The purpose of a rule 14 motion is to bring before the court material facts that arise after judgment, not to vary or augment a trial stipulation with facts extant at its entry. The motion is denied.

      . For the purposes of this opinion we will assume, without deciding, that the records at issue in this case are in fact not subject to public inspection. But cf. T.C.A. § 15-401 et seq.


text:
    STATE of Tennessee, Petitioner, v. John Paul CLOUD, Respondent.
    Supreme Court of Tennessee.
    Oct. 15, 1979.

      R. Jerome Shepherd, Cleveland, for petitioner.
    Robert L. Jolley, Jr., Asst. Atty. Gen., William M. Leech, Jr., Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

Certiorari was granted in this case to consider petitioner’s plea of double jeopardy, which was rejected by the courts below.

This prosecution was precipitated by the petitioner’s arrest for driving while intoxicated and driving without a license. At the time of his arrest, the petitioner was subject to certain restrictions imposed under the Motor Vehicle Habitual Offenders Act, T.C.A. § 59-2101 et seq. These restrictions, in substance, prohibited him from driving within the state and from holding a Tennessee driver’s license. The incident resulted in the petitioner’s indictment for the violation of three statutes: T.C.A. § 59-709, which prohibits driving without a license in his possession; T.C.A. § 59-1031, which prohibits driving while intoxicated; and T.C.A. § 59-2116, which prohibits operation of a motor vehicle by one subject to the restrictions, noted above, imposed under the Motor Vehicle Habitual Offenders Act. Ultimately, the petitioner pled guilty to the charges brought under T.C.A. § 59-709 and § 59-1031, and was sentenced accordingly. He then sought to interpose a plea of double jeopardy, based upon those convictions, to his prosecution for the violation of T.C.A. § 59-2116. Upon the rejection of his claim by the trial court, the petitioner pled guilty to that charge, reserving the right to appeal the decision on the double jeopardy question. That decision was affirmed by the Court of Criminal Appeals.

The protections against double jeopardy afforded by the state and federal constitutions bar the prosecution for a given offense of one who already stands convicted of a crime included within that offense. See, e. g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Black, 524 S.W.2d 913 (Tenn.1975). That is precisely the situation presented here. The relevant statutes provide in part:

T.C.A. § 59-709: Every licensee shall have his operator’s . . license in his immediate possession at. all times when operating a motor vehicle and shall display the same, upon demand [of an appropriate officer] . . . . Every licensee operating a motor vehicle in violation of this section shall be guilty of a misdemeanor .
T.C.A. § 59-2116: It shall be unlawful for any person to operate any motor vehicle . . while the judgment or order of the court prohibiting the operation remains in effect. Any person found to be an habitual offender under the provisions of this chapter who thereafter is convicted of operating a motor vehicle in this state while the judgment or order of the court prohibiting such operation is in effect, shall be guilty of a felony .

The “judgment or order” to which T.C.A. § 59-2116 refers is that issued under the provisions of T.C.A. § 59-2113 of the Habitual Motor Vehicle Offenders Act, which' states that if the court finds that an individual is an “habitual (motor vehicle) offender,” it shall order “that such person shall not operate a motor vehicle on the highways of this state and that such person shall surrender to the court all licenses to operate a motor vehicle upon the highways of this state.” T.C.A. § 59-2115 provides that no license shall be reissued to one subject to such an order. Thus, under this statutory scheme, a person subject to a restrictive order under the Habitual Motor Vehicle Offenders Act can have no valid Tennessee driver’s license, and, should he drive in violation of that order, he necessarily drives without a license in his possession. Accordingly, it is impossible for one to violate T.C.A. § 59-2116 without violating T.C.A. § 59-709 as well, and thus the latter offense is included within the former. Cf. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). It follows that the petitioner’s plea of guilty to the charge of violating T.C.A. § 59-709 bars his subsequent prosecution for the violation of T.C.A. § 59-2116, based upon the same incident.

The judgment of the Court of Criminal Appeals is reversed, and the case dismissed.

BROCK, C. J., and FONES, HENRY and HARBISON, JJ., concur.


author: COOPER, Justice. HENRY, Justice,

text:
    Betty Rose CUDE, Administratrix of the Estate of Jessie Robert Cude, Deceased, Petitioner, v. Nathan COUCH, Respondent.
    Supreme Court of Tennessee.
    Oct. 22, 1979.

      Lloyd S. Adams, Jr., Adams, Ryal & McLeary, Humboldt, for petitioner.
    Dwight Hawks, Humboldt, for respondent.
   OPINION

COOPER, Justice.

This case presents the single question of whether, in purchasing certain assets of a partnership upon its liquidation, Nathan Couch breached the duty that he owed to his partner, J. R. Cude. We conclude, as did both courts below, that he did not.

The partnership in question was formed by Couch and Cude in 1965 for the purpose of operating a laundromat. The partnership rented space for the business, on a month-to-month basis, from Couch, in a building that housed Couch’s car dealership. In 1973, Couch filed an action seeking to have the partnership dissolved. A receiver was appointed, and operated the laundry for several months. On court order, and after advertisement, the assets of the partnership, which consisted of the equipment of the laundry, were sold at public sale. At the time of the sale, Couch indicated that he would not lease the building to anyone who might want to continue to operate the laundry there, and thus the purchaser of the equipment would have to remove it from the premises. The equipment was ultimately purchased by one Louis Platkin for $800.00. Although it was not revealed at the time of the sale, Platkin was an agent of Couch. Couch and his son have continued to operate the laundromat at the same location.

Cude moved to set aside the sale, or in the alternative for damages, contending in essence that Couch had purchased the equipment clandestinely, at a value artificially depressed by his refusal to permit others to lease the premises, and that in doing so he had gained an unfair advantage in a transaction with the partnership, breaching his fiduciary duty to Cude. After a hearing, the trial judge denied the motion. However, he permitted Cude to file an amended counterclaim. Cude did so, and in it restated substantially the same claim for relief that had been raised in the motion. This counterclaim was heard by a second trial judge, upon both the record of the prior hearing and additional testimony. This second trial judge also denied Cude’s claim. His judgment was affirmed by the Court of Appeals.

We agree with the several judges who have considered this case previously that Cude’s claim is without merit. We do not question that partners owe each other a fiduciary duty in all matters pertaining to the partnership, and that this duty continues while the partnership is being liquidated. See T.C.A. § 61-120. We simply do not believe that, on the facts shown here, Couch breached his duty to Cude. There is no doubt but that Couch had an inherent advantage throughout the dealings in question, as a result of his ownership of the property on which the laundromat operated. However, the record does not show that he used this advantage to force Cude out of the partnership. Absent such a showing, neither Couch’s refusal to permit others to lease the premises, nor the manner and price of his purchase of the equipment— which together form the basis of the petitioner’s complaint — can be termed improper. From the beginning of the partnership, Couch made it clear that he would not permit a lease of the property, in part to insure that the operation of the laundromat would not interfere with that of his car dealership, operating in the same building. The proof also shows that, at the time of the dissolution, Couch’s determination in this regard was strengthened by his belief that he might need to put the space to use for other purposes on short notice, either to expand his dealership, or to provide office space for his son’s medical practice. Under these circumstances, we cannot conceive that Couch’s admitted duty to his partner would require that he lease the premises against his own best interests, despite the fact that the laundry could not be sold as a going business without a lease. As to the manner in which Couch purchased the equipment, while we agree with the petitioner that it would have been better had Platkin disclosed his agency, there is no suggestion in the record that his failure to do so, of itself, prejudiced either the partnership or Cude. Neither can we find anything objectionable in the price that Couch paid for the equipment. It was greater than the amount that Cude, who also bid on the equipment owned by the partnership, deemed prudent to offer. There were no other bidders, which would seem to suggest that the value of the property on the open market was minimal. The price offered at a public sale is the best indication of an item’s worth. See Davis v. Davis, 149 Colo. 1, 366 P.2d 857 (1961); Bagg v. Osborn, 169 Minn. 126, 210 N.W. 862 (1926). Unquestionably, Couch had an advantage, divorced from the partnership, that made it more practicable for him to carry on the business of the partnership after dissolution than for others. However, the fact that Couch benefited from that circumstance harmed neither Cude nor the partnership, and breached his duty to neither. Cf. Davis v. Davis, 149 Colo. 1, 366 P.2d 857 (1961).

The decision of the Court of Appeals is affirmed. Costs will be taxed to the petitioner.

BROCK and HARBISON, JJ., concur.

HENRY, C. J., and FONES, J., dissent.

HENRY, Justice,

dissenting.

I respectfully dissent.

I cannot, in good conscience, acquiesce in the conclusions reached by my colleagues. While I am not prepared to say that Nathan Couch practiced a fraud upon his partner, there is no escape from the conclusion that there was an appalling breach of a fiduciary duty bordering upon sharp practices. This transaction simply cannot withstand the scrutiny of a court of equity. Courts, as Chancellor Gibson observes, “require good faith in dealings between men, and reprobate bad faith.” Gibson’s Suits in Chancery § 48 (4th ed. 1937). Just as a physician diagnoses internal disease by external signs, so do courts of equity diagnose and expose and treat practices that do not harmonize with good faith.

There are subtleties, refinements, shapes, forms and disguises presented in this record. When stripped to bare essentials, and analyzed in the light of fundamental fairness, they point unerringly to an unwholesome, unsavory and unfair transaction which, in my view, may not stand. We look to the record.

The laundry was purchased by Nathan Couch and his employee of twenty-six years, Robert Cude, without a lease, on September 9,1975, for the sum of $7,000.00. They changed the name from the “Wash-time Laundrymat” to the “C&C Laundry-mat” and continued to operate it without a lease and in the same location: They replaced all machines with new ones. After owning and operating it for seven years and seven months, it was sold for $800.00. The written appraisal of record shows the same laundry, the same or newer equipment, at the same location, and the same operation without a lease to have been worth $10,-000.00.

Nathan Couch instituted suit for dissolution of the partnership and for the appointment of a receiver. The receiver is appointed and directed to “sell all property and assets of the partnership. . . .’’As conducted, the sale was only as to the equipment and did not include the goodwill of a going business. What happened? The answer: Nathan Couch.

He stripped the partnership of its primary asset, the goodwill, by the simple expedient of an announced requirement that there would be no lease and the purchaser was expected to remove all equipment forthwith. This operated to shoot his partner out of the saddle.

At some time prior to the sale Nathan Couch’s son, Dr. Charles Edward Couch, entered the picture, as the agent, servant and representative of his father. Dr. Couch, at the time, was practicing medicine in Memphis with Dr. Alan Platkin. Dr. Couch induced Dr. Platkin’s father, Lewis Platkin, to come from Memphis to Humboldt, some ninety or more miles away, and purchase the laundry. It is clear that Lewis Platkins was acting for Dr. Couch and that Dr. Couch had full authority from his father.

It is equally clear that the purchase money was paid either by Nathan Couch or through his Cadillac-Oldsmobile Agency owned 75% by him and 25% by Dr. Couch. Following what I am constrained to view as a premeditated plan to take over the laundry, the purchase was made, after the sale had been chilled by a no-lease, get-out announcement, the consideration paid, and immediately thereafter the utilities were converted to the name of “Couch’s Laundromat.”

Shortly thereafter the name of the establishment was changed to C Laundromat and then to Couch Laundromat. Immediately after the sale, Mr. Couch and Dr. Couch started to operate the business, and the record shows that, as of the date of the trial, June 2,1977, they were still operating it, almost four years after the purchase at the receiver’s sale.

The following testimony by Dr. Couch is significant:

Q. Was it not your intention to continue %y(3) 28. if your father bought the laundry equipment to continue the operation as it had been done?
A. I suppose so.
Q. So when your father became the high bidder you, in his behalf, carried out that intention, did you not?
A. Yes.

This testimony speaks more eloquently of the intent to squeeze out Robert Cude and take over the business than any language I might use.

Viewed from any angle, Nathan Couch failed to deal in good faith with his partner by advising him that he intended to purchase the partnership property and continue to operate the business. Instead the purchase was sly and surreptitious, and actually accomplished by using the court as an unwitting instrumentality through which this plan was consummated.

Nathan Couch has continued the business of the firm and has enjoyed all the benefits stemming from a direct succession and continuation of a going business. Moreover, he has appropriated to his own use and benefit the goodwill of a going business, for which the most elementary principles of equity and fair play demand that he pay just and reasonable compensation.

This whole transaction shocks my conscience. Justice Cardozo’s famed remark in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546 (1928) is apt:

Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties.

I would reverse and remand to the trial court with instructions to determine the value of the partnership, as a going business, assuming a lease for the period this business has been operated by Couch since the sale, and for the entry of a decree making an appropriate award.

FONES, J., joins in this dissent.

      . While this amended counterclaim was pending, J. R. Cude died. Since then, the action has been prosecuted by the administratrix of his estate, who is the petitioner before this court.

      . Lewis Platkin was a total stranger to those in attendance at the sale and he did not bother to make himself known until after the purchase. Cude did not know him. Dr. Couch was practicing medicine in Memphis and Nathan Couch was in his place of business playing tonk.