author: COOPER, Justice. HENRY, Justice

text:
    William Hodge BLACKBURN, Appellant, v. Mrs. Virginia Ware BLACKBURN, Appellee.
    Supreme Court of Tennessee.
    Aug. 18, 1975.

      Hewitt P. Tomlin, Jr., Waldrop, Hall, Tomlin & Farmer, Jackson, for appellant.
    George 0. Benton, Moss & Benton, Jack-. son, for appellee.
   OPINION

COOPER, Justice.

William Hodge Blackburn has appealed from a decree of the Chancery Court of Madison County sustaining appellee’s motion for summary judgment and holding appellant liable for payment of support for his daughter, Betsy Ware Blackburn, until she reaches twenty-one years of age. Appellant insists he was relieved from the obligation of making child support payments when his daughter reached the age of eighteen.

Appellee, Virginia Ware Blackburn, obtained a divorce from appellant by decree entered on August 15, 1961. In the final decree, the chancellor expressly approved and incorporated by reference a property settlement and child support agreement, including a supplement thereto, which had been entered into by the parties in June, 1961, in contemplation of the divorce. The agreement provided, in pertinent part, that the appellant would pay to the appellee five hundred dollars each month for the “support, maintenance and education of the children during the first two years after entry of the divorce decree,” and

“14. Beginning after two years after the entry of the decree of divorce, the Husband [appellant] will pay to the Wife [appellee] an amount equal to thirty (30%) percent of his net income . for the support, maintenance and education of the three children of the parties until the eldest of said three children reaches the age of twenty-one (21) at which time said payments shall be reduced to twenty (20%) percent of net income. Said payments shall continue at twenty percent of net income until the second child of the parties reaches age twenty-one (21) at which time the payments shall be reduced to ten (10%) percent of net income, and shall continue at this rate until the youngest child of the parties reaches age twenty-one (21), at which time said support payments shall cease.”

The agreement also contained a specific provision for the payment of college tuition and education expense, in pertinent part as follows*.

“15. In addition to the support payments set out in the above two items the Husband agrees to pay the college tuition of each of the three children of the parties, at any of the following State Universities: University of Tennessee, University of Alabama, or Auburn University. Each child under this provision shall be provided with four years of college education. Included in this provision is the Husband’s obligation to pay the expenses of room and board for each child, in addition to any regular tuition charge made by the University . . . . In the event that any one of said children does not attend college, or having entered upon a college program, but does not complete four years of same, then the obligation of the Husband will be reduced proportionately, the obligation of the Husband in this instance being only toward the college education of said children.”

At the time the agreement was executed by the parties, their minor children were Karen Ann Blackburn, age fifteen years, William Stanley Blackburn, age nine years, and Betsy Ware Blackburn, age six years.

On May 11, 1971, Section 3 of Chapter 162, 1971 Public Acts of Tennessee, now codified as T.C.A. 1-313, became effective and provided that: “Any person 18 years of age or older shall have the same rights, duties and responsibilities as a person 21 years of age or older.”

On June 16, 1973, the youngest child of the parties, Betsy Ware Blackburn, became eighteen years of age. Appellant then ceased making child support payments to appellee for the benefit of Betsy. (Appellant concedes he is bound to pay his daughter’s college tuition and expense as set out in the agreement and the decree of the Chancery Court.)

Appellee filed the present action, with the result that the chancellor sustained ap-pellee’s motion for summary judgment and ordered appellant to continue to make child support payments to appellee until Betsy Ware Blackburn reaches the age of twenty-one years. This appeal resulted.

A husband and wife contemplating divorce oftentimes enter into a property settlement agreement, which also provides for periodic payment of a specified amount for the support of their minor children. The agreement on child support payments is not binding on the trial court, but is evidence to which the court will look in determining the amount of child support needed and to be paid by the husband or, in a few instances, by the wife. If the trial judge accepts the agreement of the parties as the proper amount of support for the minor children and incorporates it in the decree of divorce, the agreement becomes merged into the decree and loses its contractual nature. Whitt v. Whitt, 490 S.W.2d 159 (Tenn.1973); Penland v. Penland, §21 S.W.2d 222 (Tenn.1975); Morrissey v. Morrissey, 214 Tenn. 112, 377 S.W.2d 944 (1964); Osborne v. Osborne, 29 Tenn.App. 463, 197 S.W.2d 234 (1946). “The reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the Court to modify its terms when changed circumstances justify.” Penland v. Penland, supra, 521 S.W.2d at 224. If the child support provision of the contract did not merge into the decree and lose its contractual nature, any subsequent modification of child support payments by the trial court would be violative of the constitutional prohibition against the impairment of contractual obligations. Article 1, Section 20 of the Constitution of the State of Tennessee. Cf. Whitt v. Whitt, supra.

An agreement between a husband and wife on matters outside the scope of the legal duty of child support during minority, or alimony in futuro over which the court also has continuing statutory power to modify, retains its contractual nature, although included in the decree of the court, and is enforceable in the same manner as other contracts. See Penland v. Pen-land, supra, wherein the contractual tion of the father to pay “all future education expenses beyond high school level,” was enforced. See also Jones v. Jones, 503 S.W.2d 924 (Tenn.App.197B), where the court enforced an agreement calling for the father to support a child beyond the period imposed upon him by law.

The agreement sought to be enforced in the instant case is the provision for periodic payments of child support, wherein the appellant agreed to support his children until they reached the age of twenty-one. Being within the scope of appellant’s legal duty to support his minor children at the time the agreement was executed, the agreement lost its contractual nature when it was approved by the trial judge and was incorporated in the decree. Prom that point forward, it was the decree of the trial court and could be enforced only so long as the appellant had a legal duty to support his minor children. The authority of the chancellor to order appellant to make child support payments is statutory and generally exists only during minority. T.C.A. Sections 36-820 and 36-828; Whitt v. Whitt, supra; Penland v. Penland, supra. As is pointed out in Whitt v. Whitt, supra,

“The authority of the court to order ap-pellee [husband] to make payments in support of his children was by virtue of statutes, to-wit; T.C.A. § 36-820 and § 36-828. These statutes retain the matter within the jurisdiction of the court for any future changes as to child support and the rights of both appellant and ap-pellee as governed by these statutes. Under these statutes the authority of the Court to order appellee to make payments for support of his children (it not being alleged either child was mentally or physically incapacitated) was for that period when appellee was required by law to support his children, which is during their minority. By virtue of Chapter 162, Public Acts of 1971, for better or worse, a child is no longer a minor when he reaches the age of eighteen.” (emphasis supplied)

Betsy Ware Blackburn has reached the age of eighteen. Appellant is no longer required by law to support her. Weinstein v. Heimberg, 490 S.W.2d 692 (Tenn.App.1972). Consequently, the courts are without authority to order appellant to make periodic payments of child support. The decree of the chancellor providing for such payments accordingly is reversed, and the petition of appellee is dismissed. Costs are adjudged against appellee, Virginia Ware Blackburn and her surety.

FONES, C. J., and HARBISON, J., concur.

HENRY and BROCK, JJ., dissent.

HENRY, Justice

(dissenting).

In good conscience, I cannot lend my assent to the majority opinion.

The issue before the Court is whether an agreement solemnly entered into by these parties, at the time of their divorce, providing for the support of the youngest child until she “reaches age twenty-one (21) ”, is enforceable.

The parties so contracted; the trial judge so decreed.

Having stated the issue, the matter may bs brought into closer focus by stating what is not the issue. The unquestioned right of the Court to modify a decree of child support, upon a showing of a change of circumstances, is not here involved.

Nor are we directly concerned with the question of the merger of a property settlement agreement into a decree. It merges— but to a qualified extent.

We are solely concerned with the right of the Court to terminate abruptly, and as a matter of law, and without an evidentiary basis or factual finding, a judicially sanc-tional contract.

The majority opinion proceeds upon the assumption that the incorporation of the agreement into the decree results in its total and irrevocable obliteration, insofar as the legal duty of child support is concerned, with the result that the Legal Responsibility Act of 1971 (T.C.A. § 1-313) operates, automatically and as a matter of law, to terminate an agreement made a decade earlier. With this conclusion I cannot agree.

So far as I am able to determine the theory of merger and loss of contractual identity was introduced into Tennessee law by Osborne v. Osborne, 29 Tenn.App. 463, 197 S.W.2d 234 (1946), wherein the Court after recognizing that the agreement merges into the decree, held that it:

(t)hereby loses its contractual nature at least to the extent that the court has the power to modify the decree when changed circumstances so justify. 197 S.W.2d at 236 (Emphasis supplied)

Some of the later cases have ignored this qualification, but not the latest pronouncement of this Court wherein our Chief Justice, in Penland v. Penland, 521 S.W.2d 222 (Tenn.1975) correctly noted:

The reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the Court to modify its terms when changed circumstances justify. (Emphasis supplied) 521 S.W.2d at 224.

This language, with which I am in full agreement, is quoted in the majority opinion, but has no relevance since we do not deal with change of circumstances, but with the obliteration of a contract as a matter of law.

In Penland we held:

(T)hat only that portion of a property settlement agreement between husband and wife dealing with the legal duty of child support, or alimony over which the court has continuing statutory power to modify, loses its contractual nature when merged into a decree for divorce. 521 S.W.2d at 224.

The language is summarized in the majority opinion and yet is in conflict with the rationale of that opinion. If a parent is under no legal duty to support his child when he has attained age eighteen (18), then it necessarily follows that so much of the agreement as would mandate support from age 18 to age 21 is “outside the scope of the legal duty”, and is enforceable.

Penland stands as authority solely for the proposition that a contract between a husband and wife, in the throes of a divorce, under which the husband would provide a college education for his children is enforceable, irrespective of the adoption of the Legal Responsibility Act of 1971 and the decisions of this Court. — Only this and nothing more.

The first case to be decided after the passage of the 1971 Act was Garey v. Garey, 482 S.W.2d 133 (Tenn.1972); however, this case is of no relevance, since the agreement provided for support until “each child reaches twenty-one (21) years of age or is otherwise emancipated”. Obviously, the 1971 Act resulted in the children being “otherwise emancipated” upon attainment of age 18. The Court’s opinion stressed this phraseology.

The next case was Whitt v. Whitt, 490 S.W.2d 159 (Tenn.1973) wherein the agreement provided for final termination of support upon attainment of “majority”. Again the 1971 Act accelerated the majority of the child and the Court held that the obligation to support ended. As pointed out in Jones v. Jones, infra, much of Whitt was dicta. Moreover, my distinguished predecessor, Honorable Allison B. Humphreys, filed an eloquent dissent, in which he said, in part:

I recognize that the opinion prepared for the Court by the Chief Justice is based upon acceptable principles of law, but I am obliged to dissent. I dissent, because, in my opinion, the result of the application of these otherwise acceptable principles is the unjust unsettling of family separation and divorce property arrangements arrived at in possible or probable contemplation of the father’s obligation to continue the support of his children at least through some of their college years. And that the opinion will relieve the father of this obligation by retroactive application of the eighteen-year old statute, which is wrong. 490 S.W.2d at 161.
I concur with Mr. Justice Humphreys.

Finally in Jones v. Jones, 503 S.W.2d 924 (Tenn.App.1973), the Court of Appeals, in a most excellent opinion by Judge Puryear, held that a contract executed before the 1971 Act, and providing for child support until age 22 or until each completes his, or her, education was valid and enforceable. As held by the Chancellor, this case is on all-fours with Jones. We denied certiorari in Jones.

Viewed from any angle this husband and wife entered into a valid agreement under the terms of which he obligated and committed himself to support children until they reached age twenty-one (21). The wife • structured her finances accordingly. Ten years later the legislature, primarily in order to give persons eighteen years of age the right to vote and with no intent to destroy vested contractual commitments, passed an act reducing the age of majority to age eighteen (18). The husband reneged and repudiated his solemn covenant.

This, I cannot conscientiously countenance. I cringe at the Court’s conclusion in this case.

BROCK, J., concurs.


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    The KROGER CO. and Genesco, Inc., Petitioners-Defendants, v. CHEMICAL SECURITIES COMPANY, Respondent-Plaintiff.
    Supreme Court of Tennessee.
    Aug. 25, 1975.

      Robert J. Walker, Bass, Berry & Sims, Nashville, for petitioners-defendants.
    John T. Conners, Jr., David J. White, Boult, Cummings, Conners & Berry, Nashville, for respondent-plaintiff.
   OPINION

BROCK, Justice.

This case involves the construction of a shopping center lease to ascertain whether it contains an implied covenant by the tenant to occupy and operate a supermarket on the premises and an implied prohibition against subleasing to a nongrocery enterprise and without permission.

The Madison Square Shopping Center in Madison, Davidson County, Tennessee, was opened to the public in 1956. Located on thirty acres of land, the shopping center is comprised of seven buildings and a parking lot for 2500 vehicles. Forty-six independent businesses occupy the 343,000 square feet enclosed in the buildings.

The Kroger Company was among the original tenants of the shopping center; it entered a lease on January 1, 1956, with Madison Square Shopping Center, Inc., for an area at the end of the largest building and opened a supermarket. The leases of several other original tenants required the landlord to acquire a minimum ten year lease for a Kroger supermarket.

In 1962 Kroger threatened to close the grocery store and move out of the shopping center to larger accommodations; whereupon the landlord agreed to expend $100,-000.00 for improvements requested by the tenant. The money was spent to remodel and enlarge the Kroger store by 50%.

At that time Mr. John Dyson, real estate manager for Kroger in Nashville, and Mr. W. H. Criswell, the agent for the shopping center, negotiated a new lease. According to Mr. Dyson, Mr. Criswell was known as the dean of real estate men and the leading shopping center negotiator in Nashville at the time. “He had the reputation of being an extremely tough negotiator.”

The new lease was signed on June 5, 1962. The rental under this lease is $2,812.50 per month plus one percent of the tenant’s annual sales in excess of $3,375,-000.00. The base rental is high and has comprised the entire rental under this lease because Kroger’s sales never achieved the sum necessary for an override payment. The term of the lease is ten years, and the tenant has the option to make three renewals of five years each. Due to a subsequent lease modification the ten year term commenced on November 1, 1963, and expired on October 31,1973. The only express proscriptions in the lease on the tenant’s use of the premises are that he not use them in an unlawful manner and that he not use them for a drugstore without written approval of the landlord. The landlord promised not to lease any premises for the sale of groceries within 1000 feet of the Kroger store, except one small corner store previously occupied by A & P Grocery. The lease states that its provisions shall bind and benefit the parties and their heirs, executors, administrators, successors and assigns. There is no clause in the lease concerning the right of the tenant to assign or sublet, but clause 26h provides that if the tenant voluntarily vacates the premises and they remain vacant for one year, the landlord has the right to cancel the lease and re-enter the premises.

On July 1,1965, Chemical Securities Company, the plaintiff in this case, purchased all the real estate, store leases, and other assets of Madison Square Shopping Center, Inc., and the latter corporation was dissolved.

On July 16, 1973, shortly before the conclusion of the ten year term, Kroger entered into a sublease with Genesco, Inc., for the store, and on September 29 vacated the premises. According to Kroger the primary reason for the move was the declining sales at the supermarket. The subtenant assumed all of Kroger’s obligations under the prime lease; the term of the sublease is equal to the three remaining extension periods of fifteen years and the subtenant’s rental of $2,812.50 per month, to be paid to Kroger, is the same as the base rental under the prime lease.. Genesco agreed not to assign or sublease the property without the consent of Kroger. The subtenant’s use of the premises is limited to the sale of shoes, clothing and general merchandise, and he agreed not to use the premises in any manner which would compete with Kroger’s business. The record reveals that Kroger operates another supermarket in Rivergate Shopping Center several miles away. The record also discloses that Winn-Dixie Louisville, Inc., has indicated to Chemical Securities Company that it is interested in leasing the Kroger store and opening a supermarket.

On September 19,1973, the landlord filed a complaint in Chancery Court against the tenant and the subtenant claiming that Kroger’s sublease of the property to Genes-co for use as a commissary was inconsistent with the terms of the prime lease and a breach of the tenant’s implied warranty to occupy the premises. The complaint requested a temporary injunction enjoining the transfer of the premises to Genesco during the pendency of the action, and that the sublease be annulled. The complainant further prayed that the prime lease be terminated or that the tenant be permanently enjoined from subleasing its premises to a nonretail grocery store and without prior approval of the landlord.

The Chancellor granted the temporary injunction and after a full hearing of the cause he found the prime lease vague and uncertain and admitted extrinsic evidence as to its meaning. He was particularly impressed by evidence of the cooperative nature of a shopping center operation and evidence of the essential role of a large grocery store in the economic success of the Madison Square Shopping Center. In his view Kroger could have vacated the premises without any further obligations but chose instead to sublease the premises at no profit to a nongrocery enterprise in order to lessen competition with its Rivergate Store. The Chancellor concluded that the intention of the parties to the prime lease was for the tenant to occupy and operate a grocery store on the demised premises and not to sublet. He ordered that the sublease be declared void and the prime lease terminated.

The Court of Appeals affirmed, finding the lease to be vague with respect to subletting. It concluded from evidence of the surrounding circumstances that if the subject of subletting by Kroger to a nongro-cery operation had been mentioned the lessor would have insisted upon a covenant against subleasing without its permission and Kroger would have agreed. It also concluded that Kroger was guilty of bad faith in prohibiting its subtenant from going into the retail grocery business and that such bad faith warranted forfeiture of the prime lease as well as annulment of the sublease.

Whereupon, Kroger and Geneseo petitioned this Court for a writ of certiorari which was granted.

The petitioners argue first that the Court of Appeals erred in admitting and considering evidence of circumstances surrounding the execution of the lease. We disagree.

In Jeffers v. Hawn, 186 Tenn. 530, 212 S.W.2d 368 (1948), this Court stated:

“While this lease contract cannot be varied by oral evidence ‘the course of previous dealings, the circumstances in which the contract was made, and the situation of the parties as aids in determining the meaning of the contract — are matters proper to be looked to by the court in arriving at the intention of the parties to the contract.’ Southern Pub. Ass’n v. Clements Paper Co., 139 Tenn. 429, 432, 201 S.W. 745, L.R.A.1918b, 580.” Jeffers v. Hawn, supra, at 370.

Likewise in Frierson v. International Agricultural Corporation, 24 Tenn.App. 616, 148 S.W.2d 27 (1940), the Court expounded:

“No one disputes the proposition that you cannot vary the terms of a written contract nor contradict it by oral evidence, but these rules do not restrain the Court from a survey of the whole situation and an ascertainment of that which the parties had in mind and the purpose or object to be obtained by a proposed agreement.” Id. at 37.

See also Commerce Street Co., Inc. v. Goodyear Tire & Rubber Co., Inc., 31 Tenn.App. 314, 215 S.W.2d 4 (1948).

The primary issue to be resolved in this case is whether the Court of Appeals erred in construing the lease to contain an implied covenant of continuous occupancy and operation of a grocery business and an implied prohibition against subleasing without permission.

“It may be stated generally that implied covenants are not favored in the law; and courts will declare the same to exist only when there is a satisfactory basis in the express contract of the parties which makes it necessary to imply certain duties and obligations in order to effect the purposes of the parties to the contract made. Furthermore, implied covenants can be justified only upon the ground of legal necessity arising from the terms of the contract, or the substance thereof, and the circumstances attending its execution; and the implication from the words must be such as will clearly authorize the inference of an imputation in law of the creation of a covenant.” Cousins Investment Co. v. Hastings Clothing Co., 45 Cal.App.2d 141, 113 P.2d 878, 879 (1941).

This Court has applied this rule to implied covenants in leases. In Central Drug Store v. Adams, 184 Tenn. 541, 201 S.W.2d 682 (1947), the Court held that covenants restricting the use of leased property should be strictly construed according to their express terms and not expanded by implication.

The courts have no rightful authority to make contracts for litigants. With regard to subletting and assignment in particular, this Court has long held that a lessee may freely transfer the demised premises without the lessor’s consent, absent a covenant in the lease restricting the right of assignment. Stone v. Martin, 185 Tenn. 369, 206 S.W.2d 388 (1947). Also, the general rule is that covenants against subletting are strictly construed against the lessor. Woods v. Forest Hill Cemetery, 183 Tenn. 413, 192 S.W.2d 987 (1946).

From these cases we have concluded that the landlord, Chemical Securities Company, bears a heavy burden in proving that the lease contains an implied covenant of continuous occupancy and operation of a grocery and an implied limitation on subleasing. Such implied covenants must arise from the terms of the lease itself.

One clause which might, arguably, support such covenants is the percentage rental clause. However, the Court of Appeals did not rely on this provision in reaching its conclusion, and considering the substantial sum set as the base rental and the small and speculative nature of the override, we likewise do not find that clause determinative. See Cousins Investment Co. v. Hastings Clothing Co., supra; MacFadden-Deauville Hotel v. Murrell, 182 F.2d 537 (5th Cir. 1950); Stop & Shop, Inc. v. Ganem, 200 N.E.2d 248 (Mass.1964).

It is also suggested that the implied covenants emanate from the landlord’s promise not to lease any other premises in the shopping center, except the former A & P store, to any business for the sale of groceries. The Court of Appeals relied' on this express covenant and the shopping center context and circumstances surrounding the execution of the lease as the source of the implied covenants.

However, in our opinion this restriction on competition written into the lease is not broad enough to give birth to implied covenants of continuous occupancy and operation of a grocery business and a prohibition against subleasing to a nongrocery and without the lessor’s permission.

The absence of language in this lease on which to base such covenants distinguishes this case from two New Jersey shopping center cases cited by the landlord, Ingannamorte v. Kings Super Market, Inc., 55 N.J. 223, 260 A.2d 841 (1970) and Dover Shopping Center, Incorporated v. Cushman’s Son’s, Inc., 63 N.J.Super. 384, 164 A.2d 785 (1960). In Dover Shopping Center, Inc., the tenant covenanted “beginning as soon after the commencement of the term as is reasonably possible and continuing during the full remaining term of this lease, to operate its business in the demised premises; to keep its store open daily for the regular conduct of its business therein during the same hours at least as are customarily employed by other similar stores in the neighborhood of the demised premises . . . ” Id. at 787. In Ingannamorte, the lease provided that the leased store was “to be used and occupied only for a supermarket. . . . ” Id. at 841. The tenants in both cases had closed their stores and left the premises vacant although they continued to pay rent. In Ingannamorte the court concluded that an implied covenant of continuous use flowed from the express language of the lease taken in the shopping center context where tenants form interdependent economic units; it ordered the tenant to resume business or give up possession of the premises. In Dover Shopping Center, Inc. the court also found a covenant of continuous use and ordered the tenant to reopen his store.

The landlord also cites Slidell Investment Company, Inc. v. City Product Corporation, 202 So.2d 323 (La.App.1967), to support its propositions, and that case was heavily relied upon by the Court of Appeals. In Slidell the landlord “instituted a suit against a tenant who maintained a variety store in his shopping center for rental payments owing. The lease provided that the premises were to be used “for the sale, storage or display of goods, wares and merchandise” (Id. at 324) and that no other tenant of the center could operate a variety store. The tenant was obligated to pay a base rental and a percentage of his annual sales. In the year prior to the closing of the tenant’s store the percentage override constituted nearly 50% of the rent. The tenant operated a very successful variety store on the premises for several years, but when a new shopping center opened across the street he decided to lease a store in that center, with exclusive rights as a variety store, and use the old store as a warehouse. The tenant subsequently vacated the old premises and sublet them, thereafter tendering to the landlord only the basic rental. The tenant prohibited the subtenant from using the premises as a variety store thus eliminating competition in both centers with his variety store. The court held the tenant liable to the landlord for the basic rental and override payments for the term of the lease on the theory that the lease contained an implied continuous operation clause. The court noted, however, that if the tenant’s store had been a financial failure through no fault of his own before he moved out, that he would not have been obligated to continue operations. In our opinion the Slidell case is clearly distinguishable from the one at hand. Sli-dell was a suit for rent and was based on a lease where the percentage override was very substantial.

Unlike the leases in the cases above, we find no terms in this lease which justify the finding of the implied covenants. In fact the lease reveals that the parties considered departure from the premises by Kroger before the term expired to be a clear possibility. Clause 26h gives the landlord the right to cancel the lease and re-enter the premises if the tenant vacates them and they remain vacant for a year. In our opinion this clause recognizes Kroger’s right to vacate the premises and the right to sublease them provided Kroger does so within one year of vacating.

The Court of Appeals found that the leases of four other major tenants of the center required the landlord to maintain a grocery store in the center. The petitioners assign error to this particular finding of fact and we sustain their assignment. The other leases merely provided that the landlord acquire a minimum ten year lease with Kroger; such a lease was obtained and it expired long before the sublease to Genesco.

The negotiators of this lease were very sophisticated and knowledgeable. In our opinion if they had intended the lease to contain a covenant of continuous occupancy and operation of a grocery business and a prohibition against subleasing for a nongro-eery use, and without permission, they would have made an express statement in the lease. Evidence of the lease negotiations presented at trial indicates that these provisions were purposely excluded. Mr. Dyson recounted those negotiations:

“Q. Do you recall whether the attention — your attention and the attention of Mr. Criswell — was drawn to the possibility of Kroger’s vacating these premises?
“A. Yes, sir, it was because one of the clauses in the lease — and Mr. Cris-well made a point of this that if The Kroger Company ceased to operate that the owners wanted the right to cancel the lease if the premises were vacant, I believe for as much as a year. I’d like to review that. That is correct. Under paragraph 26-h of the lease.
“Q. Your reference is to paragraph 26-h —was that the result of the concern over Kroger’s vacating the premises? Was that provision put in there because of that?
“A. Yes, Mr. Criswell said it did not do any shopping center any good to have a vacancy, somebody not occupying space within a center.
* * ⅜ ' * ⅜ *
“Q. What was your practice at that time insofar as putting a restriction in a lease that would deny you the right to sublease?
“A. To my knowledge I don’t recall ever one being in any lease.
“Q. How did you as a real estate manager of this division — what importance did you place upon your right to sublease this store if it became uneconomical.
“A. I placed quite a bit of importance on it because we sublease quite a few stores in any tenure with The Kroger Company in Atlanta and in Nashville.
“Q. Now with all due respect, Mr. Dyson, the lease also does not make any specific mention of any agreement on Kroger’s part to continuously occupy the premises as a grocery store. Are you aware of that?
“A: Yes, sir, I am, and that was one of the sanctimonious things, I guess, in the trade. They never put a restriction in a lease that they guaranteed to operate a facility.
“Q. You say ‘they’?
“A. The Kroger Company. I don’t believe that it would have been approved.
“Q. In your experience at that time being the real estate negotiator for Kroger in this vicinity, was that the case in your other leases here?
“A. Yes, sir.
“Q. Was that an important or unimportant factor to you—
“A. It’s—
“Q. —that you did not have the obligation to continuously occupy?
“A. Very important factor, if you wanted to make a deal.”

It is our conclusion that the record does not support a finding that the parties impliedly agreed upon the covenants as asserted by the respondent. Therefore, we reverse the decree of the Court of Appeals and render judgment in favor of the defendants, Kroger and Geneseo. All costs of this appeal are taxed against the plaintiff, Chemical Securities Company.

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


author: CARNEY, Presiding Judge.

text:
    Edwin McDAVID and Robert McDavid, Plaintiffs-Appellants, v. Bennie Joe McGUIRE and Carolyn McGuire, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 7, 1973.
    Certiorari Denied by Supreme Court Nov. 5, 1973.

      Fenner Heathcoek, Randall Burcham, Union City, for plaintiffs-appellants.
    Paul G. Hudgins, Union City, for defendants-appellees.
   CARNEY, Presiding Judge.

Plaintiffs-appellants Edwin McDavid and son, Robert McDavid, have appealed from a judgment of the Circuit Court of Obion County dismissing their suit for mandatory injunction and allied relief. Plaintiffs-appellants had brought suit seeking an injunction against the defendants, Bennie Joe McGuire and wife, Carolyn McGuire, requiring them to remove a fence which they had constructed along the west side of property of the Fairview Baptist Church. The fence was constructed with the approval of and for the benefit of the members of the Fair-view Baptist Church for the express purpose of preventing plaintiffs and their tenants from using a short roadway or cut-off across the Church property. The cut-off was approximately 20 feet wide and 25 feet long and connected the old Elbridge-Clover-dale Road on which Robert McDavid lived with the Obion-Cloverdale Road on which a considerable portion of plaintiff Edwin McDavid’s farm was located. The old El-bridge-Cloverdale Road is used by only a few persons since a bridge washed out many years ago. There is no through traffic to Elbridge.

Plaintiffs, their tenants, members of the church, and the public generally, including school bus drivers, had used this cut-off continuously for over 20 years prior to the erection of the fence. The cut-off was graveled by the county at some unknown date in the past. The dispute arose when members of the McDavid family began making new cut-offs across the Church property north of the established cut-off killing the grass and making unsightly ruts in the Church yard or parking lot.

The Obion-Cloverdale Road merges with the old Elbridge-Cloverdale Road in a curving line leaving a sharp and narrow point between the two roads approximately 45 feet below the south margin of the cut-off. Because of the acuteness of the angle at which the roads merge, it is cumbersome for plaintiffs’ trucks, farm trailers, and farm equipment traveling south on the Obion-Cloverdale Road to make a sharp turn to the right in an angle which looks from the maps to be about 155° to go north on the old Elbridge Road to plaintiffs’ farm.

The small area between the two roads south of the cut-off tapera from 25 feet on the north to zero feet on the south within a distance of 45 feet. It is in grass and kept mowed by the Church but is too small for a parking lot. The property north of the cut-off lying between the two roads is used by the Church for a parking lot. The north boundary of the parking lot is about 100 feet long being the center line of the old Obion-Cloverdale Road. The west line of the parking lot is the east margin of the old Elbridge-Cloverdale Road and is approximately 55 feet long. The south line of the parking lot is the north margin of the disputed cut-off and is about 25 feet long. The east margin of the parking lot is the west margin of the present Obion-Clover-dale Road.

All three parcels comprise less than one-fourth acre and were given to the Fairview Baptist Church by Mrs. Lessie Webb, a predecessor in title to the defendants, Bennie Joe McGuire and wife, Carolyn McGuire, more than 20 years prior to the erection of the fence.

Mrs. Webb never executed a deed to the one-fourth acre. When Mrs. Webb sold her 36-acre farm the one-fourth acre was not excluded from her deed to Larry McGuire and wife on September 15,1958, though the Church was in full and exclusive possession of the one-fourth acre less the cut-off. In 1958 the Church was in full possession of the property and using the same and the plaintiffs, their tenants, the Church members, and the public were using the cut-off. In September, 1970, Larry McGuire sold a 1½ acre lot out of the northwest corner of the 36-acre Webb land to his son, Bennie. Joe McGuire, and wife for a home. The deed to Bennie Joe and Carolyn McGuire did not exclude the Church parking lot and the disputed cut-off. Therefore, at the time of the trial Bennie Joe McGuire and wife, Carolyn McGuire, were the owners of the record title to the one-fourth acre parking lot and roadway though they had never had possession of any part of the one-fourth acre lot.

The plaintiffs sought damages and also sought as alternative relief to condemn the cut-off as an easement of necessity under T. C. A. Sections 54 — 1901 through 54-1917. The Trial Judge directed a verdict against the plaintiffs as to damages and the jury found that plaintiffs had an adequate and convenient outlet to the public road in answer to a special inquiry submitted to them by the Trial Judge. There was evidence to support the finding of the jury that the plaintiffs do have adequate access to the public road and we do not notice the question of easement by necessity further. Also we affirm the action of the Trial Judge in directing a verdict as to damages.

The principal question to be decided on this appeal is whether or not the plaintiffs have a prescriptive right to use the cut-off.

The jury answered “No” to the following question submitted to it by His Honor the Trial Judge:

“(2) Have the Plaintiffs, Edwin McDa-vid and his tenants and employees acquired the right of use by prescription over the property alleged to be owned by the Defendants, Bennie Joe McGuire and Carolyn McGuire, since the Obion-Clover-dale Road has been improved, graveled, and the corner rounded to its present condition?”

A more detailed statement of the facts leading up to the litigation is necessary:

Plaintiff Edwin McDavid has owned a tract of 150 acres in Obion County, Tennessee, since 1937. His son, Robert McDavid, is now the principal tenant and operator of the farm. Said farm, at the time of its purchase in 1937 and for many years prior thereto, was bounded on the west by what is now the old Elbridge-Cloverdale Road which was and is used by the plaintiff and his tenants as the principal means of egress and ingress to the home site on the farm. The farm was also bounded for a considerable distance on the south by the Obion-Clo-verdale Road.

In 1937 the Obion-Cloverdale Road ran westward from Obion along the south boundary line of the McDavid Farm, thence along the south boundary line of a tract of land owned by Marshall and finally, along the south boundary of the Fairview Baptist Church lot and intersected the old Clover-dale-Elbridge Road at the southwest corner of the Fairview Baptist Church property. This was a “T” intersection. Persons traveling to Elbridge from Obion would go'west to the “T intersection, turn right and north past the west side of the Baptist Church property, past the west side of the Marshall property and then on past the west side of McDavid’s property to El-bridge.

A person going to Cloverdale from Obion would enter the same “T” intersection but turn left or south on the old Elbridge-Clo-verdale Road to go to Cloverdale. In 1937 when McDavid bought his 150-acre tract, the “T” intersection was also the northwest corner of a 36-acre tract of land then owned by one Witherington who is a predecessor in title to the defendants, Bennie Joe McGuire and wife. Witherington’s north boundary line was the center line of the Obion-Clo-verdale Road just as the center line was the south line of the Baptist Church property.

Sometime between 1939 and 1941 the Highway Department of Obion County graveled and improved the Obion-Glover-dale Road. The right angle “T” intersection mentioned above was by-passed by a broad curve in the road to the south which curve merged into the Elbridge-Cloverdale Road at an angle of about 25° instead of 90° as formerly. The new intersection was approximately 100 feet south of the old “T” intersection. However, the old “T” intersection was not closed by the Obion County Highway Department nor the Obion County Court. It was closed by agreement of the Fairview Baptist Church and the plaintiff, Edwin McDavid, some two or three years later as hereinafter set out when Mrs. Webb made a gift of the one-fourth acre tract to the Fairview Baptist Church. Until the closing of the intersection by agreement, persons attending the Fairview Baptist Church, persons going to Elbridge and to plaintiffs’ home site from Obion continued to use the old “T” intersection as formerly.

The plaintiff McDavid and his tenants, in going to the southeast corner of his farm and in going to Obion and to other places east of his farm continued to travel south-wardly along what later became the old Elbridge-Cloverdale Road to the “T” intersection; to turn left and thence east along the old Obion Road about 100 feet until they reached the newly graveled portion of the Cloverdale-Obion Road.

Sometime in the early 1940⅛ a bridge on the Cloverdale-Elbridge Road washed out and the County Highway Department never replaced this bridge. Thereafter, traffic northward along the Elbridge Road diminished and Mr. McDavid and his tenants became the principal users of the old El-bridge Road along with members of the Baptist Church.

The newly located curve in the Obion-Clo-verdale Road cut off the northwest comer of a 36-acre tract of land owned by Wither-ington. This triangular shaped tract of land containing less than one-fourth acre was bounded for about 100 feet on the north by the center of the old Obion-Clover-dale Road; about 125 feet on the west by what was later to become the old Elbridge Road; and on the east by the curving line of the newly located Obion-Cloverdale Road forming the hypotenuse of the triangle.

Witherington, the owner of the small triangle apparently abandoned the lot after the new road was built. He made no effort to farm it, probably because of its small size and location. The lot grew up in bushes and locust sprouts. In March, 1942, Mrs. Lessie Webb, who was a witness in the case and is now past 80 years of age and who had been reared in the community and was a member of Fairview Baptist Church in her young days, purchased Witherington’s 36-acre tract of land by deed which did not exclude the one-fourth acre tract of land cut off by the new road.

Mrs. Webb gave the one-fourth acre to the church for a parking lot. The one-fourth acre was at that time cut off from the Church lot by the “T” intersection which was being used as a public road by plaintiffs and others. The roadbed was of a little lower level by virtue of many years use. The officials of the Church and Mr. McDavid agreed that the Church would fill in the old roadbed of the “T” intersection, make it a part of the Church lot, clean off the one-fourth acre lot given to the Church by Mrs. Webb and make a new shorter road across the one-fourth acre some 50 feet south of the old road. Thus was established the cut-off involved in this litigation.

The new cut-off was only 25 feet in length whereas the old intersection was approximately 100 feet in length. The members of the Church cleaned off the one-fourth acre and gave the locust posts cut therefrom to Mrs. Webb for her farm. The new cut-off became the regularly traveled roadway for the plaintiffs, their tenants, members of the church, and the traveling public in going from the Obion-Cloverdale Road to the Elbridge Road. The proof does not show just when the county graveled the cut-off. The old “T” intersection ceased to be used as a roadway though no authority for the substitution of the new cut-off for the old intersection is to be found on the records of the Obion County Highway Department nor Obion County Court.

On September 15, 1958, Larry McGuire, father of the defendant, Bennie Joe McGuire, purchased the 36-acre farm from Mrs. Lessie Webb. McGuire’s deed contained the same calls and description as Mrs. Lessie Webb’s deed and did not exclude the one-fourth acre triangle given by Mrs. Webb to the Church. The purchaser, Larry McGuire, was thoroughly familiar with the use of the new roadway by the plaintiffs and the public and the possession of the parking lot by the Baptist Church. At no time did Larry McGuire ever make any objection to the use of the lot and the roadway by anyone nor did anyone ask his permission to continue the use of said parking lot and roadway.

On September 11, 1970, Larry McGuire conveyed to his son, Bennie Joe McGuire, and wife, Carolyn McGuire, approximately IV2 acres carved out of the northwest corner of the original 36-acre Witherington-Webb-McGuire tract of land above described. The deed made no reference to the newly located Obion-Cloverdale Road, no reference to the cut-off and no reference to the triangular piece of land then being used and occupied by the Baptist Church. The calls of the 1 ½ acres did include the one-fourth acre of land given by Mrs. Webb to the Church. The defendants, Bennie Joe McGuire and wife, Carolyn, were fully cognizant of the possession of the one-fourth acre parking lot by the Church and the use of the cut-off road by the plaintiffs, members of the Church, and the public.

Sometime during the summer of 1971 members of the Church became concerned because persons unknown to them were driving across the parking lot north of the graveled cut-off making unsightly tracks and ruts in the parking lot and killing the grass. These new tracks were up near the site of the original roadbed of the Clover-dale-Obion Road at the “T” intersection which had been filled in by the Church nearly 30 years previously. Larry McGuire, his son, Bennie Joe McGuire, and other Church members decided that members of the McDavid family were probably the ones who were guilty of cutting across the parking lot. A group called on Mr. Robert McDavid requesting him to cease and desist or to get the members of his family to cease and desist. Mr. McDavid agreed to do all that he could to see that the practice stopped. However, the crossing outside the regular cut-off continued.

Within a very few weeks the defendant, Bennie Joe McGuire, and his father, Larry McGuire, with the full knowledge and cooperation of members of the Church, put up a small fence along the entire length of the west side of the Church property including the one-fourth acre triangular plot preventing both the plaintiffs and the public from using the 25-foot cut-off between the two roads. About a month later on December 11,1971, the plaintiffs filed their suit in this case.

The proof in this case is uncontradicted that the plaintiffs, the public, including members of the Fairview Baptist Church, have all used the cut-off in question as a roadway more than 20 years and for almost 30 years without ever having asked permission, expressly or impliedly, from anyone. Plaintiff Edwin MeDavid testified that when he first started using the cut-off he thought the county had gotten title to the new roadway; that sometime thereafter the county graveled the roadway but that he was unable to find any record thereof in the office of the County Highway Department or the County Court.

An oral gift of real estate in Tennessee is not void but voidable and if accompanied by adverse possession, the statute of limitations begins to run against the parol donor. Mercy v. Miller, 25 Tenn.App. 621, 166 S.W.2d 628; McDonald v. Stone, 45 Tenn.App. 172, 321 S.W.2d 845. Thus, it would appear that the deeds of Larry McGuire in 1958 and Bennie Joe McGuire and wife in 1970 were champertous as to the one-fourth acre parking lot and roadway and that the Church by 20 years’ continuous open adverse possession under the oral gift from Mrs. Webb had a fee simple title to the parking lot subject only to the easement of the cut-off for roadway being used by plaintiffs and the public.

At the time the old roadbed was closed by the Baptist Church the plaintiffs and the public had a legal right to travel the same because it had never been formally closed as a public roadway by the county in accordance with the statute. Elkins v. State, 21 Tenn. 542; Blake v. Skelton, 5 Tenn.App. 539. See also Paschal v. Valentine, 45 Tenn.App. 131, 321 S.W.2d 568, for rights of abutting owners in roadways closed in accordance with the law.

Plaintiff Edwin MeDavid exchanged his legal right to travel the old roadway for a right in himself and other members of the traveling public to use a new and shorter roadway across the lot given to the Church by Mrs. Webb. The act of the Church in filling in the old roadway and creating a new roadway constituted an unequivocal dedication of the new cut-off as a public roadway though express words to that ef-feet were not used. Such dedication was binding upon Mrs. Lessie Webb, the verbal donor of the lot. The dedication was accepted by the public and the roadway has been used as a public roadway for more than 20 years. The defendants, Bennie McGuire and wife, and Larry McGuire, as successors in title to Mrs. Webb, have never had any possession of the lot or roadway in question and therefore, the dedication and acceptance by the public is binding upon them. We hold that the cut-off is now a public roadway and neither the Church nor the defendants have a right to close the same. Payton v. Richardson, (1961), 49 Tenn.App. 514, 356 S.W.2d 289; Johnson City v. Wolfe, 103 Tenn. 277, 52 S.W. 991.

Therefore, we hold that His Honor the Trial Judge erroneously submitted question No. 2 to the jury and should have ordered the defendants to remove that portion of the fence which prevents the plaintiffs and the public from use of the “cut-off” roadway described in the pleadings.

It is interesting to observe that even though the jury found adversely to the plaintiffs on the questions mentioned above the foreman, on behalf of the jury, “recommended” that the defendants should remove the fence and let the public use the road.

The judgment of the lower Court is respectfully reversed and the cause is remanded to the lower Court for entry of a decree requiring the defendants to remove a portion of the fence in accordance with this opinion and for the enforcement of such decree. The defendants are taxed with the costs in the Court below and on this appeal.

MATHERNE and NEARN, JJ., concur.


author: SANDERS, Judge.

text:
    TAMPA BAY BANK v. Marie Richard LOVEDAY.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 25, 1974.
    Certiorari Denied by Supreme Court June 9, 1975.
    Harry Berke, of Berke, Berke & Berke, Chattanooga, for appellant.
    Melvin B. Butler, Nashville, for appellee.
   OPINION

SANDERS, Judge.

Defendant has appealed from a jury verdict holding her liable as maker on a note.

In January, 1972, the Defendant, Marie Richard Loveday, as president of Carpet Discountland, Inc., negotiated a loan with the Plaintiff, Tampa Bay Bank, for the sum of $5,600.00. Since Carpet Discountland, Inc., was a new corporation, the bank was unwilling to make the loan to the corporation without the Defendant’s personally endorsing the note.

The note was drawn and the Defendant executed it on behalf of the corporation as its president and also signed the note personally where the term “personal endorsement” is typed over her signature. The note was also signed by R. E. Loveday immediately under the signature of the Defendant.

At the time the note was executed the Defendant also executed a security agreement on behalf of the corporation for “any and all merchandise located at 3625 S. Dale Mabry, Tampa.” This security is reflected on the face of the note executed by the Defendant.

When the original note fell due the Plaintiff mailed a renewal note to the Defendant and R. E. Loveday. The renewal note was returned to the bank purportedly executed by the Defendant as president of the corporation and endorsed on the back by her, but the signature of R. E. Loveday was not on the note.

Default was made in the payments of the renewal note and the Plaintiff filed suit in the Circuit Court of Hamilton County against the Defendant for the amount of the note plus interest and attorney’s fees.

The Defendant filed an answer saying she had not executed the renewal note.

Plaintiff then amended its complaint to include suit on the original note.

The Defendant admitted the execution of the original note but defended the suit on the theory that she was an endorser of the note and that Plaintiff had negligently impaired the collateral and she was therefore not liable.

The case was tried before a jury with The Honorable David Walker presiding. The jury found the issues in favor of the Plaintiff.

Defendant’s motion for a new trial was overruled and she has appealed to this court and assigned error.

The thrust of. the Defendant’s assignments of error is that the Court erred in refusing to instruct the jury that the Defendant was an “endorser” of the note and it was error for thé Court to charge the jury that if they found the Defendant to be a “maker” of the note it would not be necessary for them to consider whether or not the bank had impaired the collateral.

The case is before us on a narrative bill of exceptions and leaves much to be desired from the standpoint of portraying* the actual proof adduced in the trial.

The two issues in the case are whether the Defendant was a maker or endorser of the note and, if an endorser rather than a maker, whether the Plaintiff had negligently impaired the collateral to the extent that the Defendant should be released from liability.

These are the issues which the Trial Court submitted to the jury for their consideration.

The Defendant filed an affidavit by the foreman of the jury to the effect that the jury found the Defendant to be a maker of the note and therefore found liability without considering the question of impairment of collateral.

We do not think the record supports the conclusion that the Defendant was a maker of the note. Based upon the record and the law applicable thereto, we think the Defendant is clearly an endorser.

If there were proof in the record upon which the jury could have found an impairment of collateral, we would feel compelled to reverse and remand. However, the record fails to support this theory of the Defendant.

It is a well-settled rule in this state that no verdict or judgment shall be set aside or a new trial granted by the appellate court unless, in the opinion of the appellate court, after an examination of the entire record, it shall affirmatively appear that the error complained of affected the results of the trial. T.C.A. § 27-117; State ex rel. Sprague v. Bucher, 38 Tenn.App. 40, 270 S.W.2d 565.

The weakness of the narrative bill of exceptions insofar as Defendant’s insistence is concerned lies more in what it fails to show than what it shows the proof to be.

The record shows that the Defendant, as president of the corporation, negotiated the loan with the Plaintiff and executed the note on behalf of the corporation and personally endorsed it. Defendant executed a security agreement on behalf of the corporation on all of its inventory located at 3625 S. Dale Mabry, Tampa. The record fails to show what inventory, if any, the corporation ever had at this location or what value it had. The record fails to show who the other officers, directors, stockholders or employees of the corporation were.

In April, 1972, the Defendant told an officer of the Plaintiff Bank that she had filed suit for a divorce in Chattanooga, Tennessee, against her husband “and that she would expect the bank to obtain their money on the note by collecting the same from the corporation when the note became due on May 18, 1972.” The officer of the bank advised that they would make every effort to collect the note from the corporation and if necessary would foreclose on the security agreement.

The note was not paid on the day it became due and a renewal note was mailed to the Defendant and her husband, R. E. Loveday. The note was returned to the bank with the name of the Defendant on it but was not signed by R. E. Loveday. The record fails to show who returned the renewal note to the bank.

The proof shows that the place of business of the corporation was vacated and the carpet inventory moved in June, 1973. At that time the Plaintiff was unable to locate either the Defendant or her husband, R. E. Loveday, since the Defendant had moved to Chattanooga, Tennessee, without notifying the Plaintiff she was leaving Tampa.

Again, the record fails to show who was responsible for closing the business or what happened to the inventory.

The proof also fails to show that the Defendant ever ceased to be the chief executive officer of the corporation or that she ever disassociated herself from the business.

As pertinent here, T.C.A. § 47-3-606 provides:

“Impairment of Recourse or of Collateral. — (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder . (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

This leads to the issue of what constitutes unjustifiable impairment of collateral and what standard is used to evaluate the creditor’s conduct in accordance with the standard. White and Summers, Uniform Commercial Code, § 13-14 pp. 434, 435, says:

“If the creditor handles the collateral carelessly so that its value is diminished or acts in a way which makes the collateral unavailable to the surety (for example, fails to perfect his security interest), then the surety may claim discharge under 3-606(l)(b). Comment 5 to 3-606 explains that the creditor’s conduct in respect to the collateral is measured by the standard of 9-207 (that is, reasonable care) . . .”

It should be noted at this point that the reference to 9-207 should be read in light of subsection (1) of the same section, which states that this standard of care applies to collateral in the custody and possession of the creditor.

The Supreme Court of Tennessee has recently taken the opportunity to expound upon the creditor’s responsibility to the collateral in the case of Commerce Union Bank v. May, 503 S.W.2d 112 (1973). This case involves security in the form of a mortgage on improved real property and the issue before the court was whether or not the bank discharged the surety by not renewing a lapsed insurance policy on the premises to protect the collateral. In arriving at its decision the Court cites certain passages from the Restatement of the Law of Security found in the Chancellor’s memorandum opinion:

Section 132: “Where the creditor has security from the principal and knows of the surety’s obligation, the surety’s obligation is reduced pro tanto if the creditor
(c) fails to take reasonable action to preserve its value at a time when the surety does not have an opportunity to take such action.”
Comment (c) to Section 132: “The nature of the security may impose upon the creditor duties to preserve its value so long as the creditor is the only person who can conveniently take the appropriate action.”

The Court decided to follow the Chancellor’s opinion, thereby making § 132 of the Restatement of the Law of Security the rule in Tennessee.

In the Commerce Union Bank case, supra, at page 118, the Court held that the bank did not impair the collateral since both parties were in an equal position to take the necessary steps to protect the collateral.

In the case at bar the Defendant was not only in an equal position, but we find she was in a more superior position to protect the collateral than was the Plaintiff.

The Trial Court, in the order overruling the motion for a new trial, said: “. At the close of all the proof, the Court was of the opinion that the defendant was, in fact, the maker of the note and was further of the opinion that there was not sufficient evidence to establish any impairment of collateral and was inclined to direct a verdict on that issue. . . . There was no evidence that the collateral was anything other than stock and trade for the carpet business which was purchased on consignment, and no evidence of the value of the equity, if any, in the stock and trade.”

Under the proof in this record, had the jury found the Defendant to be an endorser instead of a maker, she would have been liable as a matter of law since she has failed to show that the Plaintiff impaired the collateral.

The assignments of error are overruled.

The judgment of the Trial Court is affirmed and the cost of this appeal is taxed to the Appellant.

PARROTT, P. J. (E. S.), and GODDARD, J., concur.


text:
    Thomas Larry HENRY v. DON WOOD VOLKSWAGEN, INC., and Volkswagen South Atlantic Distributors, Inc.
    Court of Appeals of Tennessee, Eastern Section.
    Nov. 26, 1974.
    Certiorari Denied by Supreme Court Aug. 4, 1975.

      Weill, Ellis, Weems & Copeland, Chattanooga, for Volkswagen South Atlantic Distributors, Inc.
    Luther, Anderson, Ruth & Cleary, Chattanooga, for Don Wood Volkswagen, Inc.
    Gearinger, Bowles & Petty, Chattanooga, for Thomas Larry Henry.
   OPINION

SANDERS, Judge.

Both sides have appealed from a chancellor’s decree awarding damages for the breach of warranty on a Volkswagen automobile.

The Plaintiff, Thomas Larry Henry, purchased a new 1973 model Volkswagen sedan from the Defendant, Don Wood Volkswagen, Inc., hereinafter referred to as Dealer, on December 7, 1972. Four days later, on December 11, 1972, the wiring under the dashboard caught fire resulting in extensive damages to the automobile.

The day following the fire the automobile was returned to the Dealer and the Plaintiff talked with Mr. Don Wood, the president of the Dealer, about repairing the car. Don Wood told the Plaintiff that he would have to check with the Defendant, Volkswagen South Atlantic Distributors, Inc., hereinafter referred to as Distributor, to ascertain whether or not the damage was covered by warranty, He further told the Plaintiff that before he would make the repairs the Plaintiff would have to sign a work order agreeing that if the damage was not covered by the warranty then the Plaintiff would pay the cost of repairs.

The Plaintiff refused to sign the work order and informed Don Wood that he would see his attorney.

Plaintiff filed suit in the Chancery Court of Hamilton County seeking to revoke acceptance of the automobile under T.C.A. § 47-2-608 and recover the purchase price and incidental damages. In the alternative, the Plaintiff seeks damages against the Dealer for breach of warranty.

Plaintiff also alleges that the Defendant Distributor is the wholesale distributor of Volkswagens and that it maintains control over Volkswagen dealers, including the Defendant Dealer, and it induced the Dealer to breach its contract of warranty to the Plaintiff and seeks treble damages against the Distributor under T.C.A. § 47-15-113.

The case was tried before The Honorable Herschel P. Franks, Chancellor, who found the issues in favor of the Plaintiff and against the Defendants. The Chancellor awarded a judgment against both Defendants for $521.04 which was the estimated cost of repairs to the car. He also awarded a judgment against the Defendant Distributor for $1,563.12 as treble damages under T.C.A. § 47-15-113 and taxed all of the cost to the Distributor.

He dismissed the Plaintiff’s suit wherein he sought to revoke acceptance under T.C.A. § 47-2-608.

The Defendant Distributor has appealed and assigned error. The Plaintiff has also appealed and assigned error as to the action of the Chancellor in denying his revocation of acceptance.

Defendant says that it was error for the Court to hold it jointly liable with the Defendant Dealer for the estimated cost of repairs; that it was error for the Court to hold it liable for treble damages under T.C.A. § 47-15-113; and that it was error to tax it with all of the cost.

The proof shows that tKe Dealer is a corporation which operates a Volkswagen dealership in Hamilton County under a franchise issued to it by the Distributor. The Distributor is also a corporation which has the distributorship for Volkswagen in several Southern states by virtue of its agreement with Volkswagen of America, Inc., a corporation which imports automobiles from the manufacturer in Germany.

All new Volkswagens sold by an authorized dealer carry an express warranty by Volkswagen of America, Inc. The only contract which the Plaintiff had with the Dealer was in a document entitled “Vehicle Order” which set forth the terms of the sale. On the face of this instrument there is printed in red letters the following: “Every new Volkswagen vehicle is warranted by Volkswagen of America, Inc. in accordance with the terms of the warranty printed on the reverse side of this order. Except for such warranty neither the dealer, nor the manufacturer, importer or distributor of Volkswagen vehicles, makes any warranty, whatsoever, express or implied, as to the vehicle sold or the condition thereof, including, but not by way of limitation, merchantability of the vehicle or its fitness for any particular purpose.”

A copy of the warranty is also printed on the back of this instrument and the warranty repeats the substance of the above. The warranty warrants material and workmanship against defects for a period of 24 months or 24,000 miles. As pertinent here, the warranty also provides that it does not cover “ . . . damages for defects due to the repair of the vehicle by someone other than an authorized Volkswagen dealer or the installation of parts other than genuine Volkswagen parts . . .

The proof shows that after the damage to the vehicle had been reported a Mr. John Lane, an employee of Volkswagen of America, Inc., made an examination of the automobile and an investigation for the purpose of determining whether or not the vehicle was covered by the warranty. As a result of his examination of the automobile and his investigation, Mr. Lane concluded the damage to the Volkswagen fell within the exclusion of the warranty. Consequently, the Dealer was not authorized, either by the Distributor or Volkswagen of America, to repair the car.

The proof shows that after the Dealer received the automobile from the Defendant Distributor and before selling it to the Plaintiff, it installed a radio in the car. At the time the fire occurred the radio was on and as the car was being driven across some railroad tracks the radio quit playing and smoke and fire started pouring out over the top of the radio.

There were considerable differences of opinion among the witnesses as to what caused the fire. The Plaintiff and the Dealer insist that the fire resulted from a faulty headlight switch which, if true, would bring the damage within the coverage of the warranty. The Distributor contended that the radio had been improperly installed and bounced up against exposed wiring and caused the fire; also that the radio which had been installed was not a genuine Volkswagen part and, since it caused the fire, the warranty did not cover the damage.

Witness Lane based his conclusion that the radio was not a genuine Volkswagen part upon three things: (1) The ticket that was made up when the parts department issued the radio to the mechanic for installation carried the number 1444, which is not a Volkswagen part number; (2) At the time Mr. Lane examined the automobile the radio had been removed, having been pulled out during the fire, but the speaker for the radio was still intact and it was not a Volkswagen part; (8) The timecard shows that the mechanic took more than twice the time normally required to install a radio.

The Chancellor found that the fire was the result of a faulty headlight switch and the damages were covered by the warranty. We think the evidence supports the Chancellor’s finding on this fact.

The finding that the damage is covered by the warranty is further buttressed by the fact that the radio was installed by an authorized Volkswagen dealer and it was a genuine Volkswagen part. The speaker was not a Volkswagen part but the proof established that it was not related to the fire.

The Chancellor filed a memorandum opinion in which he set forth his conclusions, but we find it difficult to determine the rationale upon which he based his conclusion that the Distributor was liable for treble damages under T.C.A. § 47-15-113 and that the Plaintiff should be awarded damages for the cost of repairs rather than to recover under T.C.A. § 47-2-608.

The Court’s memorandum opinion, as pertinent here, is as follows: “The Court finds that the damage to the automobile comes within the provisions of the written warranty heretofore referred to and could be reasonably repaired for $521.04. The Court further finds that it was the dealer’s duty under its agreement with Volkswagen of America, Inc. (see Exhibit 23, Warranty and Policy, Section 2.2-1, 2.2-2) and with its distributor (see Exhibit 22, pages 25 and 26) to make repairs pursuant to the warranty provision. Judgment will be entered against the defendant-dealer for the amount of reasonable repairs as herein-above noted.

“The dealer predicated its refusal to make repairs on the advices given it by the distributor. At the trial of the case the distributor relied upon the warranty defense that the fire was caused by a defective radio, which was installed by the defendant-dealer, and that the radio was not a genuine Volkswagen part. The following exclusion is found in the warranty:

‘ . . . damage or defects due to the repair of the vehicle by someone other than an authorized Volkswagen dealer or the installation of parts other than genuine Volkswagen parts;’

The Court finds from the evidence that, had the fire occurred in the radio (as defendant-distributor contends), this damage would likewise be under the warranty. The Court, therefore, concludes that the refusal of the defendant-distributor to authorize repairs when presented with the question by the defendant-dealer amounted to a misrepresentation and an inducement to breach the warranty, and a joint judgment will be entered against the defendant-distributor for the reasonable repairs, as heretofore set forth, plus treble damages in accordance with T.C.A. 47-15-113, together with the costs of the cause.

“The Court finds that rescission of the contract is not a proper remedy in this cause and, being an independent cause of action, will be dismissed.”

Upon reading Exhibits 22 and 23 referred to by the Chancellor, we find nothing in either which imposed a duty on the Dealer to the Plaintiff which was violated. These exhibits pertain to matters between the Dealer and the Distributor and the Dealer and Volkswagen of America, Inc. They are not contracts between the Dealer and the Plaintiff.

The Chancellor was in error in holding that the refusal of the Distributor to authorize repairs induced a breach of warranty by the Dealer. The Dealer had no warranty contract with the Plaintiff. The contract was between the Plaintiff and Volkswagen of America, Inc.

One of the' mysteries of this lawsuit is why the Plaintiff failed to make Volkswagen of America a party defendant if he desired to rely on breach of warranty. It is axiomatic that before the Distributor could be held liable for treble damages under T.C.A. § 47-15-113, there must have been a contract between the Plaintiff and the Dealer to be breached. There being none, there can be no liability for its breach.

The Defendant’s assignment of error to the action of the Chancellor in holding it liable for treble damages is, accordingly, sustained.

This brings us to the Plaintiff’s assignment of error which he asked that we consider should we sustain the Defendant’s assignment of error.

Plaintiff insists it was error for the Chancellor to dismiss the portion of his complaint which seeks revocation of acceptance of the purchase of the Volkswagen under T.C.A. § 47-2-608, which provides as follows:

“Revocation of Acceptance in Whole or in Part. — (1) The buyer may revoke Ms acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it
“(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or
“(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller’s assurances.
“(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.
“(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them. [Acts 1963, ch. 81, § 1 (2-608).]”

The proof shows that the damage to the Volkswagen occurred on December 11. The automobile was returned to the Dealer the next day. The Dealer informed the Plaintiff it would not repair the automobile unless the Plaintiff signed a work order in which he agreed to pay the cost of repairs if they were not covered by the warranty. The Plaintiff refused to sign the work order but left the automobile with the Dealer. On December 27, 1972, the Dealer advised Plaintiff’s counsel that it had been decided the damage was not covered by the warranty and nothing could be done about fixing the automobile. On January 25, 1973, the Plaintiff, through his attorney, notified the Defendant he was revoking his acceptance of the Volkswagen under T.C.A. § 47-2-608 and demanded a refund of the purchase price of $2,398.31.

Clearly, this case falls within the provisions of T.C.A. § 47-2-608. Moore v. Howard Pontiac-American, Inc., Tenn.App., 492 S.W.2d 227.

The fire substantially impaired the value of the Volkswagen. The defect was such that it would have been virtually impossible for the Plaintiff to discover it before acceptance of the vehicle. The revocation of acceptance was within a reasonable time after the damage occurred and no substantial change in the condition of the vehicle occurred between the date of the fire on December 11, 1972, and the date of revocation on January 25,1973, when the Plaintiff gave notice of revocation to the seller.

The Plaintiff’s assignment of error is sustained and the verdict of the Chancellor in dismissing the Plaintiff’s complaint, insofar as it seeks revocation of the purchase of the Volkswagen, is reversed.

It follows that the judgment of the Chancellor against the Defendants for the cost of repairs and assessment of the cost in the Trial Court to the Defendant Distributor must also be reversed.

The case is remanded generally and for the entry of a decree in keeping with this opinion.

The cost of this appeal, together with the cost of the Trial Court, is taxed to the Appellant, Don Wood Volkswagen, Inc.

PARROTT, P. J. (E.S.), and GODDARD, J., concur.


author: NEARN, Judge. NEARN, Judge.

text:
    TENNESSEE VALLEY KAOLIN CORPORATION, a corporation organised and existing under the laws of the State of Louisiana and D. H. Whittington, a resident citizen of Natchitoches, Louisiana v. Joe P. PERRY et al., Appellants-Appellees, and H. C., Spinks Clay Co., Appellees-Appellants.
    Court of Appeals of Tennessee, Western Section.
    Dec. 5, 1974.
    Rehearing Denied Jan. 31, 1975.
    Certiorari Denied by Supreme Court Aug. 11, 1975.
    W. H. Lassiter, Huntingdon, Thomas R. Prewitt, Memphis, for appellants-appellees.
    George C. Thomas, Dresden, for appel-lees-appellants.
   NEARN, Judge.

. On June 25, 1953, J. C. Kirby and Ollie Kirby, owners of a tract of land located in the 7th Civil District of Carroll County, granted a 30 year clay and mineral lease on their land to H. C. Spinks Clay Company, Inc. (hereinafter Spinks). The lease was recorded in the Kegister’s Office of Carroll County and under the terms of the lease Spinks agreed to pay 15 cents per ton for all clay or minerals sold and shipped from said tract of land with a guaranteed minimum annual payment of $10 for the first year, $25 for the second year, and $50 for each year thereafter.

On April 3, 1957, J. C. Kirby and Ollie Kirby conveyed said tract of land to J. P. Perry for the sum of $1,000, such sale being subject to the aforesaid mentioned lease to Spinks. On April 5, 1957, J. P. Perry conveyed a one-half undivided interest in said property to R. L. Roland and W. D. Roland, Jr. in consideration of $1,000.

On March 20, 1963, J. P. Perry, R. L. Roland, and W. D. Roland, Jr. entered into a lease agreement with D. H. Whittington, President of Tennessee Valley Kaolin Corporation, granting Whittington a 30 year mineral lease in this same tract of land. Under the terms of this lease, Whittington was to pay the lessors 50 cents per ton for all clay and minerals sold or removed with a guaranteed minimum annual royalty of $25,000 to keep the lease in effect. In addition, a bonus of $5,000 was paid to the lessors.

On March 8, 1964, D. H. Whittington received written notice from Bpinks that said tract of land was subject to the recorded mineral lease in favor of Bpinks Clay Company. Out of court attempts to solve this problem of the alleged two leases on the same tract of land were unsuccessful. D. H. Whittington individually, and as President of Tennessee Valley Kaolin Corporation, filed a suit in Chancery Court against Joe P. Perry, Alzemme Perry, R. L. Roland, W. D. Roland, Jr. and H. C. Spinks Clay Company. The bill prayed that the lease agreement between Kirby and Spinks be declared void and forfeited because of Spinks’ failure to pay the minimum annual rental; or in the alternative, that the lease between Whittington and the lessors, Per-rys and Rolands, be declared void and that Whittington be permitted to recover sums expended in reliance on the lease. The defendants, Perrys and Rolands filed an answer and a cross-bill praying the lease with Whittington be declared void because of non-payment by Whittington and that the Kirby-Spinks lease be declared a cloud on their title and be removed as Spinks, because of a failure to mine the minerals and pay annual rental payments, had forfeited all rights under that lease.

Spinks filed demurrers to the original bill and the cross-bill, both of which were overruled by the Chancellor. A discretionary appeal was prayed and granted to the Supreme Court from the order overruling the demurrer. The Supreme Court upheld the Chancellor and remanded for further proceedings. Spinks filed an answer alleging the validity of their lease and the non-validity of the Whittington lease.

During the pendency of the trial, R. L. Roland died and his next of kin were substituted as party defendants and cross-complainants.

Before a final decree was entered on the hearing on remand, Whittington-Kaolin and the Perrys-Rolands settled their differences. Whittington-Kaolin were dismissed with the Perrys-Rolands reserving all rights against Spinks on their cross-complaint.

The final decree was in favor of Spinks. The Perrys-Rolands have appealed from the adverse decision and Spinks has appealed from a portion of the Chancellor’s findings. The posture of the matter on appeal now being as if the original suit had been between the Perrys-Rolands and Spinks with the Perrys-Rolands seeking a forfeiture of the Spinks lease and Spinks seeking a declaration of validity.

The controlling facts found by the Chancellor were that Spinks had failed to pay the minimum annual payments for the years 1957,1958,1959, and 1960 as specified in the lease; but that the lessor had also failed to give the notice of non-payment as required by the lease to effect a forfeiture. The Chancellor then held there had been no forfeiture of the Spinks lease and same was a valid subsisting agreement.

The pertinent portion of the lease is as follows:

“It is agreed and understood by and between the parties that if Spinks shall fail to pay for clay or minerals shipped, or fail to pay the guaranteed minimum annual payments, within sixty days after same shall have become due, and, provided written demand therefor shall have been made by First Party not later than thirty (30) days after same shall have become due, then the First Party may terminate this grant and it is further agreed and understood that the failure of Spinks to prosecute mining operations shall cause a forfeiture unless Spinks shall pay the minimum annual payments . . . ”

The Chancellor interpreted this portion of the lease as requiring notice of default by the lessor (First Party) before any forfeiture for non-payment could be declared.

Defendants Perrys-Rolands assign as error the finding by the Chancellor that the Spinks lease had not been forfeited. Defendants argue that Spinks had an implied or express duty to mine the property; that the Chancellor’s interpretation of the contract provision was not correct; and that the provision in the contract requiring notice is unconscionable.

Spinks assigns as error the Chancellor’s finding that the annual payment checks had not been properly mailed to and received by defendants Perrys-Rolands.

We will first consider the appeal of Spinks.

It is the Spinks argument on appeal that the evidence preponderates against the Chancellor’s finding that the checks for the minimum annual payments were not received by the lessor for the years 1957, 1958, 1959, and 1960. An issue such as the one presented by its nature, is largely dependent upon the credibility of the witnesses. Spinks maintained it mailed the checks and the lessor denied receipt of them. There is some confusion in the record created by Spinks as to whether the checks in question might have been mailed to the wrong address. A Chancellor, on an issue which hinges on witness credibility, will not be reversed unless, other than the oral testimony of the witnesses, there is found in the record clear, concrete and convincing evidence to the contrary. State v. Town of Madisonville (1968) 222 Tenn. 272, 435 S.W.2d 803; Hall v. Britton (1953 W.S.) 41 Tenn.App. 72, 292 S.W.2d 524. We find no such other evidence of that category and the Assignment of Error is overruled.

Now we turn to the Perrys-Rolands appeal.

There is proof that in 1953 at the time Spinks executed the lease, there was little or no market for the type of clay (the mineral sought to be mined) found on lessor’s land. The proof further indicates that Spinks has expended monies in an effort to produce a market for the clay, but as of the time of suit Spinks had mined no clay. The record further reflects that recently a market has developed for this type of clay.

It is the argument of these appellants that the lease created an express and/or implied covenant to mine clay.

Further, the lease requirement of notice of non-payment only applied when a forfeiture or cancellation was predicated upon a non-payment alone; but when the forfeiture was predicated upon a failure to mine coupled with a non-payment, no notice was required.

We are of the opinion that the lease in question contains neither an implied nor an express covenant to mine. In reaching this conclusion we, as did the Chancellor, rely upon the case of Pickens v. Kizer (1930 E.S.) 11 Tenn.App. 551. In the Pickens case the mineral to be mined was marble instead of clay. The minimum annual rental provided in the lease was $360 instead of $50. The lease in the Pickens case, as in this case, provided for a SO day period for notice of non-payment which, as in this case, was admittedly not given. The argument made to the Pickens Court was that the lease was forfeited independent of notice requirements because there had been a failure to mine the stone.

The Court held, that if there was a duty to mine, then the lessee was in default in not making the monthly tonnage payments provided in the lease. It would then follow that notice of non-payment would be required under the lease and such notice was not given. Further, it was held that where a lease denies a forfeiture so long as the minimum periodic payment is paid, there can be no implied covenant to mine, as such written covenant is an express negation of any such implied covenant so long as there was sufficient consideration given for the agreement.

It is argued to this Court that the $>50 annual payment is not sufficient consideration for the lease obtained and it is called to our attention that in the Pickens case, supra, the annual payment was $360. We will disregard the evident disparity between the value of clay and marble and will consider the question on the basis of land value at the time the lease was executed. In the present case the amount paid for the fee was $1,000. In the light of that cost factor, we deem an annual minimum payment of $50 to be a sufficient consideration.

A reading of the Tennessee cases leaves no doubt that this state recognizes an implied obligation to mine premises for minerals. See Weatherly v. American Agricultural Chemical Co. (1938 M.S.) 16 Tenn.App. 613, 65 S.W.2d 592, 598; Mining and Manufacturing Co. v. Chemical Co. (1911) 126 Tenn. 18, 24, 38, 150 S.W. 1143; Annotation 76 A.L.R.2d 721; and Corbin on Contracts § 541. However, such an implied duty to mine can be and is waived by the lessor “where the lessee has paid or agreed to pay a specific sum of money in lieu of recurring royalties and the money has been accepted by the lessor”. Frierson v. International Agricultural Corporation (1940 M.S.) 24 Tenn.App. 616, 633, 148 S.W.2d 27, 37; and Weatherly. We understand the law to be that the implied obligation to mine arises where that obligation is the sole or substantial consideration for the granting of the lease. Whether the obligation to mine is implied and then waived or whether the minimum annual payments are considered as agreed to liquidated damages for an ongoing contract is merely a play on words. The key question as heretofore answered is whether or not the minimum annual payment is sufficient consideration to hold open the lease.

An additional reason not heretofore mentioned by us influenced the Court in Frier-son, supra, which was also a case dealing with a mineral lease. In Frierson, at page 634, 148 S.W.2d at page 38, the Court stated, “that courts of equity should construe contracts so as to uphold them and prevent forfeiture, is a trite observation but it is one that cannot be too often repeated. It has been borne in mind throughout our consideration of this case.”

For the reasons stated, we overrule the Perrys-Rolands Assignments of Error and affirm the decree below at cost of appellants and surety.

CARNEY, P. J., and MATHERNE, J., concur.

OPINION ON PETITION TO REHEAR

NEARN, Judge.

A petition to rehear has been filed complaining of the Court’s failure to consider the argument of counsel regarding the alleged unconscionability of the notice provisions of the lease agreement.

We did not directly comment on that point in our former Opinion. However, we did consider it and we thought adequately treated it when we referred to the case of Pickens v. Kizer (1930 E.S.) 11 Tenn.App. 551, as the prime authority for overruling the Assignments of Error.

The notice provisions contained in the lease in the Pickens case, supra, are strikingly similar to those contained in the lease under consideration. The Pickens Court did not find such notice provision unconscionable and this Court did not find the notice provisions in the instant case unconscionable.

We simply are unable to follow the argument propounded on appeal and in this petition that the notice provision is burdensome and unconscionable because it “requires the lessors to anticipate failure of payments by the lessee . . . [and] because the lessor could never terminate the lease for non-payment of the minimum annual payments unless within the first 30 days after the payments became due the lessors anticipated that the payment would not be made before the 60 day period ended.”

All that is required of the lessors under the notice provision is that they give written notice of default within 30 days thereof. Then, if the lessee does not rectify the default within 60 days from that default, the lessor has the right to terminate.

We stand on our Opinion of date December 5, 1974, and the petition to rehear is denied at petitioner’s cost.

CARNEY, P. J., and MATHERNE, J., concur.

      . In so far as an implied covenant to mine or drill is concerned, Tennessee views oil and gas leases in a different light than those for solid minerals. See T.C.A. § 64-704. The reason being as set forth in the Pickens case, supra, i. e., “the failure to explore for oil may result in the loss of the oil by drainage from adjoining lands, while here the marble can never be disturbed.” There certainly is no drainage of solid ore or minerals.