author: HARBISON, Justice.

text:
    Robert McLEAN, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 25, 1975.

      William S. Todd, Kingsport, for petitioner.
    Tom Jennings, Asst. Atty. Gen., for respondent; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

Petitioner, Robert McLean, was convicted in the Criminal Court of Sullivan County, Tennessee on two charges of selling legend drugs, the sales having allegedly occurred on October 28, and November 2, 1972. He received in each case a fine of $500 and a sentence of confinement in the county jail of eleven months, twenty-nine days. These convictions were based upon violations of T.C.A. § 52-1204. Petitioner was simultaneously indicted, tried and convicted for selling a controlled substance in violation of T.C.A. § 52-1432(a) for which he was fined $1000 and sentenced to serve three years in the state penitentiary. All of the sentences were ordered to run consecutively.

Petitioner appealed his convictions to the Court of Criminal Appeals. In a divided decision, the Court of Criminal Appeals affirmed one conviction of the petitioner for selling a legend drug and affirmed the conviction for selling a controlled substance; however, it dismissed the second charge of selling a legend drug, upon the ground that this had occurred in one and the same transaction as the sale of the controlled substance.

Petitioner filed a petition for certio-rari in this Court, which was granted. The State did not file a petition for certiorari from the action of the Court of Criminal Appeals in dismissing one of the legend drug charges, nor did it assign error after the Court had granted the petition filed on behalf of McLean, as it might have done. T.C.A. § 27-823. Accordingly, the judgment of the Court of Criminal Appeals dismissing one of the legend drug charges has become final and is not before us.

In addition to the two legend drug indictments, petitioner was indicted upon charges of feloniously selling and feloniously possessing with intent to sell a controlled substance, barbiturate derivative, this sale having occurred on November 2, 1972. The indictment does not list the schedule of the Tennessee Drug Control Act for which violation was claimed, but in his instructions to the jury the trial court charged that the controlled substance was classified under Schedule III (T.C.A. § 52-1417), and he instructed the jury as to the penalty for violation of this schedule, being not less than three nor more than eight years imprisonment and a fine of not more than $10,000. T.C.A. § 52-1432(a)(l)(C).

The facts of the ease were sharply disputed. It is uncontroverted, however, that petitioner was a licensed, registered pharmacist, working at certain pharmacies in Kingsport, Tennessee.

By preliminary motion petitioner challenged the constitutionality of the statute governing the sale of legend drugs, T.C.A. § 52-1204. His motion to quash the indictment was overruled, and he continued to assert the alleged unconstitutionality of this statute in the Court of Criminal Appeals, which sustained the statute as against charges that it was unconstitutionally vague and indefinite and that there was an unlawful delegation of legislative power in referring to federal law for a definition of legend drugs. Agreeing with the Court of Criminal Appeals that the statute did not contain any constitutional infirmity, we limited our grant of certiorari to the other issues now before us.

Petitioner made no attack whatever upon the indictment for the sale of the controlled substance, and did not raise any question as to whether the provisions of T.C.A. § 52-1432(a) were or were not applicable to licensed, registered pharmacists. This question was raised for the first time in the dissenting opinion filed in the Court of Criminal Appeals, and this Court granted certiorari for the purpose of examining the subject. It is our opinion that the provisions of T.C.A. § 52-1432(a), generally prohibiting the sale or possession with intent to sell controlled substances, are not applicable to registered pharmacists, such as the petitioner, and that the petitioner accordingly was indicted, tried and convicted under an inapplicable statute.

T.C.A. § 52-1432 generally forbids any person to manufacture, deliver, sell or possess controlled substances as listed in the various schedules of the 1971 Drug Control Act, codified under previous code sections. It also forbids any person to possess these substances with intent to manufacture, deliver or sell and prescribes various penalties, including separate and differing penalties respecting drugs classified under the different schedules. At its beginning, however, this section specifically states that its prohibition apply to all sales, deliveries, etc. “except as authorized” by other portions of the 1971 Drug Control Act (the entire Act being codified as T.C.A. §§ 52-1408 — 1448).

T.C.A. §§ 52-1424 through 1431 make specific provisions for pharmacists and professional persons licensed by the various boards dealing with the healing arts. T.C.A. § 52-1424 provides as follows:

“The board of pharmacy and the appropriate occupational or professional licensing board governing persons who may legally dispense controlled substances may promulgate rules and charge reasonable fees relating to the registration and control of the manufacture, distribution and dispensing of controlled substances within this state.”-

The next section provides that every person who manufactures, distributes or dispenses any controlled substance within the state or who proposes to engage in the manufacture, distribution or dispensing of such substances, must obtain annually a registration issued by the Board of Pharmacy and the appropriate occupational or professional licensing board. T.C.A. § 52-1425(b), insofar as here pertinent, provides:

“Persons registered by the board of pharmacy . . . may possess, manufacture, distribute or dispense those substances to the extent authorized by their registration and in conformity with the other provisions of this section.”

Subsection (e) of the same section provides that a separate registration is required at each principal place of business or professional practice where an applicant manufactures, distributes, or dispenses controlled substances.

Of course, the practice of pharmacy and the licensure of the members of that profession are defined and dealt with in detail by separate statutes, T.C.A. § 63-1001 et seq. The Drug Control Act, in its definition section expressly refers to a “pharmacist” as being a person duly licensed by state law. T.C.A. § 52-1409(y).

There is no issue in the present case but that the petitioner was duly licensed, and there is no claim that he had failed to comply with any of the registration statutes, entitling him to possess and dispense controlled substances as a pharmacist.

Subsequent sections of the Drug Control Act deal with criteria for the issuance of registration to pharmacists, physicians and other licensed persons, for the suspension and revocation of their registration, for the keeping of various records and inventories, and for distribution among registrants. T.C.A. § 52-1431 deals generally with prescription requirements, and subsection (c) of that section is as follows:

“Except when dispensed directly by a practitioner, other than a pharmacy, to an ultimate user, a controlled substance included in schedule III or IV, which is a prescription drug as determined under chapter 13 of this title, shall not be dispensed without a written or oral prescription of a practitioner. The prescription shall not be filled or refilled more than six (6) months after the date thereof or be refilled more than five (5) times, unless renewed by the practitioner.”

Other portions of T.C.A. § 52-1431 deal with the dispensing of drugs under Schedules II and V.

There seems to be no question on this record but that the petitioner was at all pertinent times subject to the terms and provisions of T.C.A. §§ 52-1424 through 54-1431.

Portions of the 1971 Drug Control Law contain specific penalties for registrants. T.C.A. § 52-1435(a) expressly makes it unlawful for any person who is subject to T.C.A. §§ 52-1424 through 52-1431 to distribute or dispense a controlled substance in violation of § 52-1431 (insofar as here pertinent, selling a controlled substance without a prescription from a practitioner). Subsection (b) of T.C.A. § 52-1435 expressly provides as follows:

“Any person who violates this section is guilty of a felony and upon conviction may be imprisoned for not less than two (2)' years nor more than ten (10) years, or fined not more than twenty thousand dollars ($20,000), or both.”

It seems clear to us that the petitioner should properly have been indicted and tried for violation of T.C.A. § 52-1431, and sentenced according to T.C.A. § 52-1435. The statute under which he was indicted and convicted pertains to the public generally, but the code sections last cited deal specifically with pharmacists and other registrants, and prescribe entirely different penalties and sanctions from those pertaining to the general public.

It accordingly appears to us that the petitioner, respecting the controlled substance charge against him, was tried and convicted under an inappropriate statute, and his conviction for violation of T.C.A. § 52-1432(a) cannot stand.

A somewhat similar case was presented to the Supreme Court of Iowa in the case of State v. Webb, 261 Iowa 1151, 156 N.W.2d 299 (1968). The defendant there was a licensed pharmacist and allegedly made sales of certain prescription drugs without a prescription.

Certain statutes of the state prohibited pharmacists from making such sales without a prescription and provided specific criminal penalties therefor. A new general drug control act, however, contained a general prohibition against the sale of prescription drugs, and provided separate and different penalties. The latter statute contained an express provision that nothing contained in it should be construed to prevent a licensed pharmacist or other professional person from performing necessary acts in the ethical and legal performance of his profession.

The defendant was indicted under the general statute, rather than under the statute pertaining to pharmacists.

Reversing a conviction of the defendant, the Supreme Court of Iowa held that the general statute, pertaining to members of the public at large, was not applicable to pharmacists, and if applied to pharmacists, or other licensed persons, the statute was simply too vague to be enforced. The Court stated:

“While we view the sale of a large quantity of amphetamine sulfate pills without a prescription with a very jaundiced eye and certainly do not approve of what defendant is alleged to have done, we must consider the statute in its application to licensed practitioners generally rather than to defendant and to the simple facts before us.” 156 N.W.2d at 301.

The Court concluded that the statute under which the defendant had been convicted was “not a proper vehicle to support the charge made here.” The Court held that the general statute was not intended to apply to sales made by a licensed pharmacist, and that an attempt to apply it in such cases created an untenable ambiguity and uncertainty in the general law.

A similar situation is encountered in the present case if the general statute, applying to the public at large, is also attempted to be made applicable to pharmacists, physicians and other persons described in the Drug Control Act as “registrants”. The general statutes prohibit possession, sales, manufacture and distribution of controlled substances and provide a series of criminal penalties therefor, “except as authorized” by other code sections. Specific authorization for possession and dispensing of controlled substances is granted to pharmacists and other registrants by T.C.A. §§ 52-1424 through 52-1431, under the conditions specified therein and subject to the prohibitions therein contained. We believe that uncertainties and ambiguities of an undesirable nature would be created if the general prohibitions of T.C.A. § 52-1432 were made applicable to pharmacists and other registrants.

Like the Iowa court, we in no way sanction the conduct with which the petitioner is charged in the present case, but we cannot escape the conclusion that he should have been indicted and tried for violation of T.C.A. § 52-1431(c), and, if convicted, punished as provided in T.C.A. § 52-1435.

On behalf of the State it is urged that the evidence offered at the trial was sufficient to convict the petitioner of a violation of T.C.A. § 52-1431, that is of selling a controlled substance falling within Schedule III without a prescription. It is therefore argued that there has been an error made simply as to the degree of punishment, and we are urged to reverse the case and remand it for a new trial on punishment only. While this might be permissible under some circumstances, we do not believe it appropriate where the petitioner has been indicted and tried under an inapplicable statute. It seems to us that there has been such a material variance between the offense charged and that attempted to be shown in evidence as to void the conviction.

As stated in a dissenting opinion by Judge Wayne Oliver in the case of Nunley v. State, 479 S.W.2d 836, 840. (Tenn.Cr.App.1972):

“Nothing is more firmly established in the law than that a defendant cannot be charged with one crime and convicted of another.”

Cited in support of this statement is the case of Brown v. State, 162 Tenn. 639, 39 S.W.2d 746 (1931).

In the latter case, the defendant was indicted upon a charge of fraudulent appropriation of property. The Supreme Court concluded that the evidence showed that the defendant had authority to sell the property, and that he had fraudulently appropriated the proceeds of the sale, rather than the property itself. Reversing the conviction, the Court said:

“Plaintiff in error cannot be adjudged guilty of a fraudulent appropriation of the proceeds of the property upon an indictment charging him with a fraudulent appropriation of the property itself.” 162 Tenn. at 642, 39 S.W.2d at 747.

In the case of Hayes v. State, 145 Tenn. 629, 237 S.W. 1104 (1921), the defendant had been indicted for possessing intoxicating liquors received directly or indirectly from a carrier. There was evidence that the petitioner was actually in possession of intoxicating liquors, but no proof whatever that he had received it from a carrier.

In reversing the conviction, the Court said: ■

“The evidence is not sufficient to sustain the conviction upon this indictment. Defendant might have manufactured the whisky himself or he might have personally transported it to his residence. He is not charged with either of these offenses, and he cannot be convicted for an offense with which he is not charged.” 145 Tenn. at 631, 237 S.W. at 1105.

It is further argued on behalf of the State that the offense of selling a controlled substance, as prohibited by T.C.A. § 52-1432(a), is a “lesser included offense” to the sale of a controlled substance by a pharmacist without a prescription. An examination of the statutes, however, convinces us to the contrary. As already pointed out, the penalty provided for unlawful possession or sale of a Schedule III substance by a member of the public generally is a prison term of three to eight years; it is difficult for us to see how this offense can be said to be included in the offense of sale by a pharmacist without a prescription, where the prison term is fixed at from two to ten years. The fines authorized to be imposed upon conviction of the two offenses likewise vary greatly; under the general statute a fine of up to $10,000 is authorized, while in the case of a registrant a fine of up to $20,000 is authorized. We further note that in T.C.A. § 52-1436 other and special penalties are prescribed for violations by registrants not here pertinent, and an examination of the entire Drug Control Act convinces us that it was the legislative intent that registrants be indicted and tried under the specific provisions of the Act applicable to them, and not under the general provisions.

As previously pointed out, petitioner did not attack the legal sufficiency of the indictment against him insofar as the controlled substance charge was concerned, and the question has been raised on his behalf for the first time in his petition for certiorari to this Court, after having been suggested by the dissenting opinion in the Court of Criminal Appeals.

A number of statutory provisions in this State govern the form and sufficiency of indictments, T.C.A. §§ 40-1801 through 40-1828, and it is clear under our cases that most formal defects in indictments and in the procedures surrounding them may be waived by an accused, who pleads not guilty and goes to trial on the merits. A material variance, between the offense charged and the evidence offered, however, normally is not waived. Even though the evidence establishes guilt of some offense, the conviction cannot stand if that offense is not one covered by the indictment. See 4 Wharton’s Criminal Law and Procedure, § 1887 (Anderson 1957); see also 5 Id. § 2060.

We note that in T.C.A. § 52-1444 of the Drug Control Act, there are express provisions that the State is not required to negate any exemption or exception from the provisions of the Act in any complaint, information, indictment or pleading, or in any trial or other proceeding under the Act. The statute expressly provides that the burden of proof of any exemption or exception is upon the person claiming it. The statute further provides that in the absence of proof that a person is the duly authorized holder of an appropriate registration or order form, he is presumed not to be the holder of the registration or form, and the burden of proof is upon him to rebut the presumption.

These provisions were undoubtedly designed to eliminate many of the technical problems which have existed in the preparation of indictments for statutory violations, where the statutes themselves create various exemptions or exceptions. See Villines v. State, 96 Tenn. 141, 33 S.W. 922 (1896).

Nevertheless, since it was uncontroverted at the trial that the petitioner was a duly licensed and registered pharmacist, and he was so referred to repeatedly throughout the proof, we believe that he has sufficiently shown himself to be within the exceptions to the general law and within the specific provisions pertaining to registrants, that his conviction under the general law should not stand.

The evidence adduced at the trial of this case was sharply conflicting, and clear issues were presented to the jury insofar as the facts were concerned. Material issues of credibility of the witnesses were presented, and the evidence was clearly sufficient to sustain the conviction of petitioner on the charges of selling Valium without a prescription, and, for that matter, on the charges of selling a controlled substance without a prescription, had he been properly indicted therefor.

The principal witness against the petitioner was an informer, who had been convicted on a number of different criminal charges, but police officers also observed the sales which took place and identified the petitioner.

During the course of the presentation of the State’s case in chief, the State’s witnesses were permitted, over objection of counsel for the petitioner, to refer to other sales made by the petitioner to the informer, in addition to those which were contained in the indictments. The informer claimed to have known the petitioner for many years, and said that he had been regularly supplied with drugs by the petitioner. He further testified that he had made numerous sales of controlled substances for the petitioner and had turned the proceeds over to the latter. Although these charges were heatedly denied by the petitioner, the determination of the facts was clearly a matter for decision by the jury.

Petitioner objected, however, to the introduction of evidence of other offenses, besides those for which he was on trial, and we granted certiorari to consider the question of whether the admission into evidence of other unrelated offenses was erroneous, and if so whether reversible error occurred. In the majority opinion of the Court of Criminal Appeals, it was stated that the admission into evidence of these previous offenses was probably error, but the Court felt that it was harmless and did not affect the results of the trial. The dissenting member of the Court felt that prejudicial error had occurred.

Our examination of this record, however, convinces us that error was not committed. The starting point in consideration of proof of prior crimes, of course, is that such evidence is not admissible and that there is a general rule of exclusion. There are a number of well-defined exceptions to the rule, however, and proof of prior offenses is admissible in a number of circumstances. As stated in the case of Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159 (1966):

“The cases in this State establish that such evidence is admissible if (1) it is to be used to prove identity, knowledge as reflecting an intent, a plan or system, a course of conduct or is a part of the res gestae of the crime charged, and (2) the evidence is ‘clear and convincing’ that the defendant is the person who committed the prior offense.” 219 Tenn. at 26, 406 S.W.2d at 161.

The opening statements of counsel are not in the record before us, but in a colloquy with the trial judge it was stated by counsel that in the opening statement for petitioner, his attorney admitted that the petitioner had made one unauthorized sale .of Valium to the informer, this having occurred on October 21, 1972. It was the theory of the petitioner, as evidenced in the cross-examination of the State’s witnesses, that this sale was made by the petitioner to the informer out of fear, and under threats of exposure and duress. It was the theory of the State, of course, that no such motive existed on the part of the petitioner and that he made the sales to the informer voluntarily and as a part of their continuing relationship which had existed over a substantial period of time. Further, in the cross-examination of the State’s witnesses, counsel for the petitioner made a sharp issue as to the identity of the person allegedly making two of the sales to the informer, these having occurred in the late afternoon or early evening under lighting conditions where visibility was limited.

Since issues had been made by petitioner’s counsel as to his motives and as to identity, we are of the opinion that the trial judge was not in error in admitting proof of other offenses on those issues. The trial judge carefully instructed the jury that this evidence was to be received for these limited purposes and no other. Further, since counsel for the petitioner admitted in open court that petitioner had participated in one unauthorized and illegal sale of Valium, on October 21, 1973, petitioner is hardly in a position to complain of evidence surrounding that transaction. He categorically denied making the other sales and contended that if they were made, they were made by some other person.

Although proof of prior offenses is to be received with caution because of its highly prejudicial nature, under the issues as made up and revealed in this record, we are of the opinion that there was no error on the part of the trial judge in admitting the evidence complained of.

It results that we affirm the conviction of the petitioner on the charge of selling Valium without a prescription on October 23, 1972. We reverse and set aside his conviction for the sale of a controlled substance for the reasons hereinabove set out.

The costs will be equally divided between the State and the petitioner.

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


source: Caselaw Access Project

author: BROCK, Justice.

license: Public Domain

text:
    John POTEETE, Petitioner, v. J. R. OLIVE d/b/a Ace Bonding Company, Respondent.
    Supreme Court of Tennessee.
    Sept. 2, 1975.

      W. A. Moody, Carrol D. Kilgore, Bran-stetter, Moody & Kilgore, Nashville, for petitioner.
    Charles F. Frazier, Frazier & Faimon, Nashville, for respondent.
   OPINION

BROCK, Justice.

This is an action for damages against the plaintiff’s bail and the bail’s agents for false imprisonment and assault and battery. The issues to be resolved are (1) whether the failure of a bondsman’s agents to carry a certified copy of the undertaking endorsed by the bondsman as specified in T.C.A. § 40-1227 and to exhibit it to the principal when arresting him renders the arrest unlawful, and (2) whether the bondsman has authority to arrest the principal after a conditional forfeiture of the bond has been entered by the court.

The record reveals that in September of 1972 the plaintiff, John Poteete, was in jail awaiting trial on two charges of passing forged papers. He was released on September 6,1972, on a bail bond signed by the defendant, J. R. Olive, doing business as Ace Bonding Company.

Poteete was scheduled for arraignment on October 20, 1972. However, he phoned Olive long distance that morning to inform him he would be unable to appear because his truck had broken down. The court ordered a conditional forfeiture and issued a capias directed to the Sheriff. On October 25 Olive brought Poteete to court but the arraignment was continued because Po-teete’s lawyer was unavailable. On October 27 the court set the forfeiture aside. The arraignment was rescheduled for October 30; the parties dispute whether Poteete was so notified. Poteete failed to appear on that date and a forfeiture was taken and a second capias issued to the Sheriff.

Throughout November Olive searched unsuccessfully for Poteete, who by his own admission was frequently out of town. Olive hired Mr. Hagewood, who in turn hired Mr. Sweatt, to assist in finding Poteete and returning him to jail. Hagewood and Sweatt are also defendants in this case; they are self-employed and serve as agents to apprehend fugitives for numerous bonding companies. Olive testified that he gave Hagewood the capias directed to the Sheriff but did not give him an endorsed certified copy of the bond.

Hagewood and Sweatt located Poteete in Nashville in late November of 1972. He was repairing his car at a service station in the company of his wife and an acquaintance, Mr. Vick, when they approached him. From this point the plaintiff’s and defendants’ stories diverge sharply.

According to Poteete, Hagewood and Sweatt did not identify themselves, inform him of their authority, nor show him any documents. Poteete stated that he had seen their faces before but did not know who they were. They told him that Olive wanted to speak to him, and he talked with Olive over the telephone in the gas station. He admits that on the telephone he “kidded” Olive by denying he was John Poteete and claiming instead to be his brother, Donnie. Olive, after speaking to Poteete for several minutes, asked him to put Hage-wood on the telephone. While Hagewood was on the telephone Poteete testified he walked to get the tools he had left lying beside the station. Suddenly Hagewood started screaming “Shoot him!” and Sweatt drew a gun. According to Poteete, Hage-wood then shoved him against a wall to handcuff him. He fell on his face and was hit or kicked by his captors. Sweatt and Hagewood told him they were carrying him in because they had a capias for him. They threw him in their car and delivered him to jail. Poteete’s story was corroborated by his wife and by a friend, Mr. Vick. They added that Hagewood ordered them to “get the hell out of there” and threatened to arrest Mrs. Poteete if she didn’t leave.

The version of Hagewood and Sweatt differs considerably from that of the plaintiff. According to Hagewood, when Sweatt and he approached Poteete at the service station they orally identified themselves and told him that Olive wanted to see him and that he was under arrest by his bail. Hagewood stated he had in his possession the capias and a copy of the bond but he admitted that he never took these documents out of the folder he was carrying nor showed them to Poteete. Poteete, however, denied his identity and claimed to be his brother, Donnie Poteete. Hagewood then phoned Olive from the station for. instructions. Olive asked to speak to Poteete and when Hagewood returned to the phone Olive told him, “That’s the man.” Hagewood stated that while he was on the phone Po-teete tried to run away, and that he dropped the phone and hollered to Sweatt to stop him. Sweatt pulled his gun, and Hagewood ran after Poteete. He caught him and made him put his hands against the wall so he could search him. Poteete allegedly turned on Hagewood and the two lost their balance, tumbling to the ground with Hagewood on top. Hagewood said that Poteete was resisting arrest and that he fell bodily on him to restrain him. He then handcuffed Poteete, Sweatt picked him up, and they walked him to the car. Both Sweatt and Hagewood denied striking the plaintiff. Hagewood admitted at trial .that he ordered Mrs. Poteete and Mr. Vick to leave.

Poteete spent that night in jail. The next morning he was taken to the hospital where a fracture of the right patella was diagnosed. He was put in a cast up to the hip and subsequently wore a series of casts for two and one-half months. He required crutches for four months after the last cast’s removal.

In December, 1972, Poteete commenced an action against Olive, Sweatt, and Hage-wood for false imprisonment and assault and battery. The trial judge charged the jury that a bondsman has the legal right to make an arrest only prior to a specified court appearance date and has no power of arrest after the criminal court has declared a forfeiture; he did not differentiate between a conditional and a final judgment of forfeiture, and he also declined to give instructions tendered by the respondent to the effect that the bail has authority to arrest the principal after a conditional judgment of forfeiture had been entered. The jury returned a verdict against the defendants for $3,000 compensatory damages and for $5,000 punitive damages against Olive and $2,500 punitive damages against both Sweatt and Hagewood.

Olive was the only defendant to appeal to the Court of Appeals. He challenged the trial judge’s instructions to the jury regarding a bondsman’s right of arrest. The Court of Appeals reversed the judgment of the trial court holding that the trial judge erred in charging the jury that the bail has no authority to arrest the principal after a conditional judgment of forfeiture had been entered and in failing to charge, as requested by respondent, that the bail has such authority. We agree with the conclusion of the Court of Appeals that the bail is vested with authority to arrest the principal after a conditional judgment of forfeiture is rendered. Devine v. State, 37 Tenn. (5 Sneed) 623 (1868). Even after final forfeiture the bail may be exonerated if he surrenders the accused prior to payment. T.C.A. § 40-1303. See also State v. Frankgos, 114 Tenn. 76, 85 S.W. 79 (1904). Following payment the bail’s right to surrender the accused lapses and with it his power of arrest. See Commonwealth v. Johnson, 3 Cush. (57 Mass.) 454 (1849). We, therefore, affirm the judgment of the Court of Appeals reversing the judgment of the trial court and remanding for a new trial.

We proceed now to consider another issue. Poteete petitioned the Court of Appeals for a rehearing contending that his arrest was illegal even if the bail did have authority to arrest after entry of a conditional forfeiture because the bondsman failed to comply with T.C.A. § 40-1227. His argument was based upon the failure of Olive to give his agents a certified copy of the bond endorsed to them and on the failure of the agents to exhibit the bond to him at the time of arrest. The Court overruled Poteete’s petition to rehear. Poteete has petitioned this Court for certiorari on the single question raised in his petition for a rehearing. We have decided to determine this issue because of its continuing importance to the administration of justice. It is, furthermore, tangential to the issue originally raised about the time period over which the bail’s right to arrest extends, both issues dealing with the limitations on his power of arrest.

Tennessee Code Annotated provides:

“§ 40-1225. At any time before the forfeiture of their undertaking, the bail may surrender the defendant in their exoneration, or he may surrender himself to the officer.
“§ 40-1227. For this purpose, they may arrest the defendant on a certified copy of the undertaking, at any place in this state, or may, by a written authority indorsed on such copy, authorize another person to make the arrest.”

Olive stated at trial that he gave Hage-wood the capias but never gave him a certified copy of the undertaking, nor endorsed such a copy. Hagewood testified, however, that at the time of arrest he was carrying the capias and a copy of the bond in a folder. If he was carrying such a bond, it was obviously not certified nor endorsed by the bail. The evidence is contradictory as to whether Hagewood and Sweatt identified themselves and their mission to Po-teete, but all of the parties agree that neither the bond nor the capias was displayed at the time of arrest.

Two issues are raised by these facts. First, did the failure of the bail to give his agents a certified copy of the bond with their authority to arrest endorsed thereon render the arrest illegal? And secondly, did the failure of the agents to exhibit such a copy to Poteete make the arrest illegal? After careful consideration of T.C.A. § 40-1227 we have concluded that both of these questions must be answered in the affirmative.

At common law the bail had very broad arrest powers. In the leading case on the subject, Taylor v. Taintor, 16 Wall (83 U.S.) 366, 21 L.Ed. 287 (1873) the United States Supreme Court stated:

“When bail is given, the principle [sic] is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge, and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest, by the sheriff, of an escaping prisoner.” Id. at 290.

However, we find it unnecessary to consider whether the arrest in this case would have been legal under the common law. We hold that in Tennessee the bail’s power of arrest is prescribed exclusively by statute.

In the early statutes of Tennessee the rights and privileges which the bail possessed “by law” to take and surrender his principal were expressly preserved. See Tennessee Acts of 1827, Ch. 18, § 4. T.C.A. § 40-1227 first appeared as § 5173 in the Code of Tennessee, 1858 (Meigs and Cooper). That section has not been altered from 1858 to the present. No statute protecting the bail’s common law right of arrest was included in the Code of Tennessee, 1858. In our view, the legislators by specifying the mode of arrest in § 5173 and omitting the section maintaining the bail’s common law powers of arrest expressed a clear intention that § 5173 be exclusive.

The Code of Alabama, 1958, Title 15, § 209 is virtually identical to T.C.A. § 40-1227. The Supreme Court of Alabama analyzed the relationship of that statute to the common law in Gray v. Strickland, 163 Ala. 344, 50 So. 152 (1909).

“Under the common law the sureties upon a defendant’s bail had the unquestioned right to arrest him at pleasure and surrender him into the hands of the law, and this could be done without the issuance of process. [Citations omitted.] Section 6351, Code 1907, provides for the discharge of the sureties by a surrender of the principal, and also provides for the arrest of the defendant upon a certified copy of the undertaking. Therefore, under the statute, the sureties have the right to procure their discharge by surrendering the principal at any time before a default, just as they had under the common law; the only change being that the arrest must be made upon a certified copy of the bond. The statute does not give any additional rights or powers, but really qualifies the common law right of arrest, and this method, as prescribed by the statute, must be exclusive. It gives no additional right to arrest, and cannot be said to be in aid of or cumulative to the common law in this particular, and, to give it any meaning or operation whatever, it must be construed as confining the right of arrest by the sureties in the manner therein required. To hold otherwise would render the statute meaningless as to the requirement in making arrests, and in effect stultify the lawmakers.” Id. at 153.

See also Nicholson v. Killpatrick, 188 Ala. 258, 66 So. 8 (1914).

In Cooke v. Harper, 78 Ind.App. 267, 135 N.E. 349 (1922), the Appellate Court of Indiana stated:

“It is well settled that, where the manner in which the accused may be surrendered and the surety on a recognizance exonerated is fixed by statute, the mode of arrest and surrender provided by statute is not cumulative but is exclusive of the common-law remedy; and, if the surety desires to surrender his principal, there should be substantial compliance with the statute.” Id. at 350.

We are in complete agreement with the Indiana court.

Such being the case, it is clear that Olive was required by T.C.A. § 40-1227 to give his agents a certified copy of the bond properly endorsed to them in order to authorize the arrest. The endorsed bond in the hands of the bail’s agents is a substitute for a warrant. 1 Clarence Alexander, The Law of Arrest in Criminal and Other Proceedings, p. 704, § 196 (1949). It serves as their legal process. Livingston v. Browder, 51 Ala.App. 366, 285 So.2d 923 (1973).

It is also implicit in T.C.A. § 40-1227 that the bail’s agents must exhibit the bond to the principal when arresting him. This is the obvious purpose in requiring written proof of authority.

In Shine v. State, 44 Ala.App. 171, 204 So.2d 817 (1967), the Alabama Court of Appeals confronted this question.

“To make any kind of arrest, valid authorization and authority is requisite. Though Dean contends that a certified copy of appellant’s bond was in his possession on the date in question, there is no positive evidence that it was ever shown to appellant or produced in his presence. Therefore, it is questionable that appellant had absolute knowledge by what authority this attempt to take him from his home was legally based. It is a vital part of an arrest for the accused to have notice of the authority under which he is being arrested as well as to know by whom he is being arrested. Even a police officer making a valid arrest must declare his intention and authority, unless, of course, his life is in such jeopardy as to preclude this notice. In this case there was certainly nothing found in the record which would lead this band of individuals performing then and there as a “posse”, to believe that appellant would come out shooting, or that their lives were in jeopardy at the time the certified copy of the bond should have been produced as their authority.” Id. at 822.

In our opinion this interpretation of a similar statute by the Alabama courts as requiring exhibition of the bond is strengthened in Tennessee by the legislative intent expressed in T.C.A. § 40-806. According to that section when a police officer arrests a person he must “inform him of his authority and the cause of arrest, and exhibit his warrant if he has one, except when he (the person arrested) is in the actual commission of the offense, or is pursued immediately after an escape.” The reason behind this section is to provide the person arrested with notice of the officer’s authority and purpose, and to give him the opportunity to submit peacefully. The same rule should be applied to a bail and his agents when making an arrest. Indeed, it is even more important that a bail and his agents be required to exhibit written proof of their authority because a police officer’s uniform will generally provide the person he is arresting with sufficient notice of his official character. Galvin v. State, 46 Tenn. 283.

Accordingly, we affirm the judgment of the Court of Appeals remanding this cause to the trial court for a new trial consistent with this opinion. All costs in this Court are taxed against the petitioner.

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


author: HENRY, Justice.

text:
    William B. BRANCH et ux., Appellants, v. Harris W. WARREN et al., Appellees, v. GEORGIA PACIFIC CORPORATION, Appellees.
    Supreme Court of Tennessee.
    Sept. 2, 1975.

      James T. Ryal, Jr., Adams & Albright, Humboldt, for appellants.
    Lyle Reid, Reid & Banks, Brownsville, for Warren.
    George 0. Benton, Moss & Benton, Jackson, for Wickes Corp.
    James D. Senter, III, Senter & Senter, Humboldt, for Georgia Pacific Corp.
   OPINION

HENRY, Justice.

This suit had its origin in a contract for the construction of a residence for the plaintiffs. The trial judge held that plaintiffs’ cause of action was barred by the statute of limitations as incorporated in § 28-305 T.C.A., refused to permit plaintiffs to amend their declaration and dismissed their suit.

I.

Plaintiffs instituted their suit in the Circuit Court at Alamo against Harris W. Warren, Harris E. Warren, and the Wickes Corporation. They allege that on or about April 28, 1968, they entered into a contract with the Warrens, for a stipulated sum, to construct a dwelling house in accordance with plans and specifications contained in the contract. Under their agreement the Warrens were to furnish all "labor and materials necessary for the construction, to include the decking material for the roof. This plywood decking was purchased in May or June, 1969 from the defendant Wickes.

The dwelling house was completed in July 1969.

In December, 1969 and January and February, 1970 the roof began to warp and detach from the rafters.

On September 19, 1973, the defendant Wickes filed its answer, generally denying the allegations of the complaint and, in effect, joining issue thereon. It is significant to note that at no place in this answer did this defendant plead any statute of limitations.

On September 25, 1973, the defendants Warren answered, asserting that they used the plywood as specified in the contract; denying that they had breached their contract with the plaintiffs; denying that they had breached any warranty, and generally joining issue on the pleadings. Again, they did not plead or rely upon any statute of limitations. Pursuant to Rule 13.07 the Warrens asserted a cross claim against Wickes and against Georgia-Pacific Corporation. (Georgia-Pacific was not technically a party at that time; but was brought in by Wickes).

On October 3,1973, the court granted the Wickes Corporation leave to file a third party complaint against Georgia-Pacific, and on that same date this cross claim was filed. It was the theory of the cross claim that Wickes had purchased the plywood decking from Georgia-Pacific, and that if the plaintiffs recover damages against Wickes, it, in turn, was entitled to judgment against Georgia-Pacific.

On October 28,1973, Georgia-Pacific filed its motion to dismiss the complaint, the cross claim of the defendants Warren and the third party complaint of the defendant Wickes for failure to state a claim upon which relief against the original defendants and the third party defendant Georgia-Pacific Corporation could be granted.

Georgia-Pacific moved, in the same pleading, for a summary judgment based upon the assertion that the cause of action accrued in December, 1969 and in January and February, 1970 when the roof warped and, since plaintiffs did not file their suit until July 10, 1973, the statute of limitations, as contained in § 28-305, had run and, therefore, the suit should be dismissed.

On February 6, 1974, the defendants Warren moved to dismiss on the ground that the suit was barred by the statute of limitation as set forth in Section 28-305 T.C.A.

On February 16, 1974, the Wickes Corporation filed its motion for a summary judgment upon the same grounds.

On March 8, 1974, plaintiffs moved to amend their complaint so as to plead, in the alternative, that the Warrens were acting as their agent in the purchase of the plywood; that Wickes knew the intended use of this material and impliedly warranted it to be fit and proper for such purpose.

On June 14, 1974, plaintiffs again moved the court for leave to amend their complaint so as to allege that the defendants Warren, within the three-year period, had negotiated with them with reference to a settlement of their claims and had represented and given assurances that they would remedy the damages and defects in the roof. Plaintiffs alleged that they relied upon these representations and assurances.

These motions to amend were denied by the trial court.

II.

Plaintiffs, as Appellants in this Court, assign as error the action of the trial judge in overruling their motions to amend. We regard this as error. The policy of our law has long favored amendments. Section 198, Caruthers’ History of a Lawsuit, Eighth Edition (1963) reads, in pertinent part as follows:

Under the very liberal rules allowing amendments, the court may admit material amendments at any stage of the pro-, ceedings. The Supreme Court of Tennessee has said: “It is a downright violation of principles, and of good sense, to determine any case otherwise than on its merits, and it is a great imputation upon judges that so many statutes of jeofails have been needful to place common sense upon her native seat, from which she has been driven by technicalities.”

The new Rules of Civil Procedure, in this regard “come not to destroy the old law, but to fulfill.” They were designed to simplify and ease the burden of procedure under the sometimes harsh and technical rules of common law pleading. Accordingly, Rule 15.01 provides that leave (to amend) shall be freely given when justice so requires. This proviso in the rules substantially lessens the exercise of pre-trial discretion on the part of a trial judge. Indeed, the statute (§ 20-1505, T.C.A.) which conferred a measure of discretion on trial judges was repealed and Rule 15 stands in its place and stead. That rule needs no construction; it means precisely what it says, that “leave shall be freely given.”

Reversed and remanded.

The costs of this appeal are taxed against the appellees.

FONES, C. J., and COOPER, HARBI-SON and BROCK, JJ., concur.

      .This date activates Section 47-2-725, T.C.A. if this transaction be treated as a sale within the meaning of the Uniform Commercial Code.

      . This date activates Section 28-314 et seq., T.C.A., if this transaction be treated as a construction contract.

      . This date activates Section 28-305 T.C.A.


author: COOPER, Justice.

text:
    Elayne SANDERS, Appellant, v. Dr. Benjamin E. CARMICHAEL, etc., et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 2, 1975.

      Charles Hampton White, Nashville, for appellant.
    John W. Price, Dyersburg, John R. Lodge, Jr., Asst. Atty. Gen., Nashville, for appellees.
   OPINION

COOPER, Justice.

Elayne Sanders filed an action in the Chancery Court of Davidson County against Dr. Benjamin E. Carmichael, Commissioner of Education of the State of Tennessee, Casie J. Vinson, Superintendent of the Dyer County school system, the Dyer County Board of Education and the individual members of the Board, seeking “restoration and/or reinstatement to her position as a classroom teacher teacher in the Dyer County School System, including a declaration of her rights and status as a teacher, and restoration of withheld proceeds of the State School Fund as should be applied toward her salary.” On considering motions to dismiss filed by the defendants, the chancellor concluded the plaintiff was seeking judicial review of her “discharge as a teacher by the Dyer County School Board and Dyer County Superintendent of Schools,” and that the action must be brought in Dyer County. The chancellor then entered a decree that the action be “dismissed for lack of venue.”

According to the averments of the complaint which must be taken as true at this stage of the proceedings, Elayne Sanders became eligible at the end of the 1973-74 school year for consideration as a tenure teacher in the Dyer County school system. Superintendent Vinson refused to recommend the re-election of Mrs. Sanders for the 1974-1975 school year. The Board of Education went against the recommendation of its superintendent and, on April 9, 1974, re-elected Mrs. Sanders. On April 11, 1974, the Board rescinded its action of April 9th and voted not to re-hire plaintiff. Plaintiff requested and was granted a hearing to review the Board’s action of April 11, 1974. The Board adjourned the hearing without taking formal action relative to the employment of plaintiff, but resolved to set another meeting to review the legal construction of Tennessee Code Annotated, Section 49-S02(A)(7), as amended, and its effect on state funding of the plaintiff’s salary.

Tennessee Code Annotated, Section 49-602(A)(7) provides in pertinent part, that:

“7. In order for any professional position, together with the salary therefor as authorized in this section, to be included in the minimum foundation school program, or to be paid from any public funds, the person filling such professional position shall be recommended by the local superintendent of schools and elected by the local board of education. However, such failure of recommendation shall not affect an employed teacher’s rights as otherwise set forth in this title”.

On June 24, 1974, the Board voted to rescind its action of April 11, 1974, and voted to re-elect plaintiff as a teacher for the 1974-1975 school year.

On July 1, 1975, the Commissioner of Education of the State of Tennessee wrote Superintendent Vinson that $7,140.00 would be withheld from the State Minimum Foundation School Program allocation to the Dyer County School System for the year 1974 — 1975 until there was a concurrence between the Dyer County Board of Education and Superintendent Vinson on the employment of the plaintiff.

Thereafter, in late July, 1974, the Dyer County Board of Education forwarded plaintiff an “acknowledgement of employment,” which was completed and returned by plaintiff. Plaintiff reported for in-service training on August 19,1974, and worked for one week before being notified by Superintendent Vinson and the Chairman of the Board of Education of Dyer County that the Board had voted to terminate plaintiff’s employment as a teacher on August 22,1974, and that the action was “taken due to a Chancery Court case between the Tennessee Education Association and the Tennessee State Department of Education regarding legality of [her] employment under T.C.A. 49-602(A)(7) as amended by Chapter 435, Public Acts of 1974.” As of the date of termination of plaintiff’s employment, there was no lawsuit involving either the Tennessee Education Association or plaintiff and the Tennessee State Department of Education regarding the legality of the plaintiff’s employment.

Plaintiff charges that as the result of her re-election on June 24,1974, as a teacher in the Dyer County school system for the 1974-1975 school year, she acquired tenure status and, consequently, was not subject to dismissal except for the grounds set forth in Section 49-1412 of the Tennessee Code Annotated, and then only on written charges and after having been afforded the opportunity to defend against those charges. She further charged that her dismissal as a teacher under the circumstances set out above was unlawful under the provisions of the Tennessee Teachers’ Tenure Act and was in violation of her contractual rights with the Dyer County Board of Education, and sought a declaration of her rights and damages for breach of her employment contract. Plaintiff also sought a declaratory judgment that the Commissioner of Education of the State of Tennessee acted unlawfully in withholding funds from the Dyer County Board of Education when plaintiff was hired without the recommendation of the superintendent of the Dyer County school system.

Giving the broadest possible interpretation to the complaint in this case, it is evident that the primary or basic relief sought by plaintiff is restoration and/or reinstatement to her position as a classroom teacher in the Dyer County school system and damages, if any, resulting from her discharge. Her cause of action is predicated upon an alleged contract of employment between her and the Dyer County School Board, and upon rights allegedly given her by the Teachers’ Tenure Law. The Commissioner of Education of the State of Tennessee is not a party to plaintiff’s contract of employment, neither is he a necessary or material party to the determination of any rights which the plaintiff may have under the Teachers’ Tenure Law. The only parties necessary or material to a resolution of plaintiff’s right to employment and damages from breach of an employment contract are the parties to the contract of employment. And, the venue of an action to review the dismissal of a teacher having “permanent tenure” or “limited tenure” is in the county where the teacher was employed — in this case, Dyer County. See T.C.A. § 49-1417.

Plaintiff insists that despite the statutory location of venue in Dyer County, the present action properly was brought in Davidson County as plaintiff also sought a declaration that the Commissioner of Education of the State of Tennessee unlawfully withheld funds from the Dyer County school system when plaintiff was hired by the Dyer County School Board without the recommendation of her school superintendent. The right to funds from the State Minimum Foundation School Program is peculiarly an issue to be raised by the school system involved, and not by a teacher employed by the system. The fact that funds may or may not be withheld from a school system by the Commissioner of Education is not determinative of, or in any way material to, the rights or duties of the plaintiff or the Dyer County School Board under the employment contract which is at issue in this case, or under the Teachers’ Tenure Law. We hold, therefore, that under the circumstánces of this case, the plaintiff has no standing to challenge the action of the Commissioner of Education in withholding State Minimum Foundation School Program funds from the Dyer County school system.

Decree affirmed, with costs being adjudged against the appellant, Elayne Sanders.

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


text:
    Kyle C. NORTH, Petitioner, v. Mary ROBINETTE et al., Respondents.
    Supreme Court of Tennessee.
    Sept. 2, 1975.
    Rehearing Denied Sept. 22, 1975.
    Charles N. Rader, Ambrose, Wilson, Lockridge & Grimm, Knoxville, for petitioner.
    G. W. Morton, Jr., Morton, Lewis,. King & Jones, Knoxville, for Robinette, Cooter and Larkin.
    L. Caesar Stair, III, Knoxville, guardian ad litem for David Lindamood.
    Bernstein, Dougherty & Susano, Knoxville, for David Lindamood.
   OPINION

COOPER, Justice.

This action was brought by petitioner, Kyle C. North, against respondents, Mary Robinette, Melinda Cooter, Randall Larkin, and David Lindamood, to specifically enforce a lease-purchase contract of realty. In defense, the respondents took the position that petitioner had breached the contract and also that a forced sale of the property to petitioner for $12,000.00 (the value placed on the property by an appraiser chosen by petitioner) would constitute a constructive fraud upon respondents in view of a then existing offer to purchase the property for $19,500.00. Question also was raised as to the competency of the respondent, David Lindamood, with the result that a guardian ad litem was appointed to represent Mr. Lindamood in this action.

On trial, the chancellor concluded the lease-purchase contract was valid and enforceable and decreed specific performance by all respondents, the sale price of the property being $14,000.00 as reported in an appraisal prepared for the court by Mr. John Swaggerty.

The Court of Appeals, with one judge concurring in part and dissenting in part, reversed the chancellor and dismissed the action on the grounds (1) it would be unconscionable to enforce the contract, and (2) that there is no competent evidence in the record to show what transpired between the conclusion of the evidentiary hearing and the entry of the final decree of the chancery court, which embraced the appraiser’s report filed after the evidentiary hearing. In a separate opinion, Judge Goddard dissented from the judgment of the majority of the Court of Appeals dismissing the action against the respondents, Mary Robi-nette, Melinda Cooter, and Randall Larkin, on the ground that there was no showing of fraud, overreaching or unconscionability in the enforcement of the contract. He concurred in the dismissal of the action against David Lindamood on the basis that Mr. Lindamood was incompetent to contract for the sale of his interest in the property.

This court granted certiorari to review the action of the chancellor and of the Court of Appeals.

The record shows that the lease-purchase contract covers a house and lot located at 808 Twelfth Street in the City of Knoxville. The contract provides, inter alia, that:

“[I]f the Tenant [petitioner] upon written notice not less than thirty (30) days nor more than sixty (60) days prior to the expiration of the term, gives to the Landlords [respondents] or either of them, notice in writing that he desires to purchase the premises the Landlords will, at the end of the term, upon the payment of the purchase price to be determined as hereinafter set out and all rent to the end of the term, by good and sufficient warranty deed convey the premises to the Tenant free from encumbrances, with current taxes prorated.
“The purchase price shall be determined by the appraisals of two competent licensed real estate appraisers, one of whom is to be appointed by the Landlords and one by the Tenant. Should the two appraisers not be able to agree on the fair market value, the two of them shall appoint a third appraiser whose appraisal of the fair market value shall be binding.”

(It should be noted that the determination of value in the above manner has the effect of insulating the seller against loss from a sharp increase in the value of the property during the term of the lease).

The petitioner exercised his option to purchase the property by letter to Mrs. Robi-nette, dated November 2, 1972. Following the provision of the contract relative to determining the price to be paid for the property, the petitioner had the property appraised by Mr. Hop Bailey, Sr., a Knoxville realtor, who fixed the fair market value of the property at $12,000.00.

The respondents did not specifically employ an appraiser, but submitted an appraisal made by Mr. Ken E. Galbraith for use by the Tennessee Valley Authority Credit Union in making a loan to a Mr. McCarter, who proposed to purchase the property from respondents. Mr. Galbraith’s appraisal figure was $22,000.00.

No agreement was reached by the parties on the appointment of the third appraiser called for by the contract. The petitioner then filed the present action asking the court to appoint the third appraiser and to direct the respondents to specifically perform the contract and sell the property at its “fair market value” as determined by the third appraiser.

On trial of the action, the two appraisers testified as to the “fair market value” of the property. The respondents also introduced two witnesses who testified they were willing to purchase the property. Mr. Rex A. McCarter, a builder in the Knoxville area who owns a number of rental units, testified he stood ready, willing and able to pay the respondents $19,500.00 in cash for the property. Mrs. P. J. Sood testified she and her husband owned the lot adjoining the property here involved, and would pay $18,000.00 for the property.

At the close of the evidentiary hearing, the following colloquy took place between the chancellor and counsel for the parties:

“COURT: It is clear to the Court that you have got a paragraph in here that says if you have two appraisers and they don’t agree that you get a third appraiser. Frankly, it would be my thinking that Mr. Galbraith’s appraisal is somewhat suspect, but it qualifies, but we come to the point where there needs to be a third appraisal. I think it would be simpler for the Court to name appraisers than to have those two try to get together and name an appraiser. Mr. Galbraith might be shunt upon by Mr. Bailey and it might cause a conflict. I think we ought to just appoint an appraiser and require the parties to be bound as the contract calls for to the appraiser’s figure regardless of whether it is below Mr. Bailey’s or above Mr. Galbraith’s, as the case may be. That’s what the contract calls for.
MR. RADER [Representing Petitioner]: That’s what we have asked for, Your Honor.
COURT: I understood you were trying to get them to take $12,000.00.
MR. RADER: No.
COURT: I think both parties are bound by this third appraiser and if that is the wish of the parties I will do it that way.
MR. MORTON [Representing all respondents except Lindamood]: That suits us, Your Honor.
COURT: Mr. John Swaggerty has had some experience, he is not one of these more expensive appraisers and I suggest that he be the third appraiser.
MR. MORTON: I have no objection. COURT: The one by whom you will be bound.
MR. MORTON: Your Honor, I have one point of inquiry: to what extent may we, the parties, stípply information to Mr. Swaggerty?
COURT: You are entitled to supply him anything you want to and he should be made aware of the facts that have been presented here today, both as to the offer of purchase, the prospective rental, what Mr. Galbraith has reported as his appraisal, what Mr. Bailey has reported as his appraisal, the income and the possible expense of renovation. He should look at it with that thought in mind himself and he should be given access to the property so that he can properly appraise it. Do you want the Court to retain the matter on the docket to carry out the final appraisal?
MR. MORTON: I think so, Your Honor.
COURT: I don’t think you need anything other than to put down a decree after his appraisal is rendered requiring the parties to comply with the terms of his appraisal and we might as well wait a decree or judgment until he makes his appraisal.
MR. MORTON: Your Honor, I think the Court, for Mr. North’s benefit, should divest the property out of Mr. Lindamood so there is no question about that.
COURT: I will do that at the time his appraisal comes in. We will just hold up the judgment until Mr. Swaggerty makes his appraisal and we will just put one judgment down to cover the whole matter.”

From the above colloquy, it is evident that with the exception of the guardian ad litem, the parties agreed through counsel to the chancellor appointing the third appraiser called for by the lease-purchase contract and agreed to be bound by the “fair market value” reported by the appraiser.

The chancellor did appoint Mr. Swaggerty to appraise the property as agreed, and Mr. Swaggerty filed a comprehensive report showing the “fair market value” of the property to be $14,000.00.

The respondents filed exceptions, insisting the appraised “fair market value” was grossly inadequate in law and equity in face of the offers to purchase, and that to enforce the contract and to require sale of the property at the appraised “fair market value” of $14,000.00 would be unconscionable. The chancellor treated the exceptions as a petition to rehear, overruled them, and entered a decree for specific performance.

It is settled law in this state that specific performance of a contract is not available to a party as a matter of right, but rests in the sound discretion of the chancellor under the facts appearing in the particular case. Moss Tie Co. v. Hill, 191 Tenn. 582, 235 S.W.2d 587. Where specific performance is decreed, certain fundamental and indispensable conditions must be shown to exist. “The contract must be clear, definite, complete and free from any suspicion of fraud or unfairness.” Johnson v. Browder, 185 Tenn. 601, 207 S.W.2d 1, 3.

“If a contract has all the essentials of validity, and is certain in its terms, is based on an adequate and valuable consideration, is fair and just in all its provisions, is free from any fraud, misrepresentation, illegality, or mistake, is capable of being enforced without hardship to either party, and if compensation in damages for its breach is impracticable, or would be inadequate, a bill will be maintained for its specific performance.” Gibson’s Suits in Chancery, 5th Ed., p. 237, Vol. 2.

This case is unique only in that the parties during the trial of the action re-affirmed the material terms of the contract calling for the sale of the realty. The respondents, at least those competent to make an agreement, agreed for the chancellor to appoint the third appraiser called for by the original contract, and further agreed that the “fair market value” determined by the court appointed appraiser would be binding on the parties. This agreement, coming as it did in open court, eliminated all possibility of fraud or overreaching in the selection of the method of determining the “fair market value”-to be paid for the property, eliminated fraud and overreaching in the selection of a competent real estate appraiser, and also eliminated any misunderstanding as to the binding effect of the appraisal. Respondents, however, argue that to make them specifically perform their contract to sell the house and lot at a “fair market value” figure less than the purchase offers received by respondents after entry into the contract with petitioner would be unconscionable. The fáct that other prospective purchasers may be willing to pay a price greater than the “fair market value” of the property as determined under the contract is not a basis for denying specific performance where consideration for the property is determined as provided by the agreement of the parties and the consideration thus determined is within the realm of reason.

“While equity will not specifically enforce an agreement which is not supported by an actual and valuable consideration, the general rule supported by most of the courts is that the mere fact that the consideration for a contract is inadequate does not justify a denial of the right to its specific performance, in the absence of any unfairness or overreaching in its procurement, where, in other respects, the contract conforms with the rules and principles of equity. According to this rule, merely to show a disproportion between the value of the subject matter of a contract and the consideration therefor is not sufficient to authorize the court to deny the specific enforcement of the contract. The mere fact that a vendor should have received more money for the property does not show inadequacy of consideration . . .”71 Am.Jur.2d, Specific Performance, Sec. 78, pp. 108-109.

In this case, finding no abuse of discretion on the part of the chancellor, the decree of specific performance is affirmed so far as it pertains to the respondents, Mary Robinette, Melinda Cooter, and Randall Larkin. The respondent, David Lindamood, stands in a different position, however. As heretofore noted, the chancellor appointed a guardian ad litem to investigate Mr. Linda-mood’s mental condition and to protect Mr. Lindamood’s rights in the property involved in this action. One of the doctors who examined Mr. Lindamood reported, “It is my opinion that Mr. Lindamood is mentally competent, however, patience and time must be allowed him as well as careful explanation of any subject matter to be sure his opinion is valid. For these reasons, I think he should have a guardian to manage his affairs.”

The second doctor reported, “Mr. Linda-mood is not completely ‘incompetent,’ as you put it, to ‘comprehend the significance of these proceedings.’ Mr. Lindamood is definitely not able to protect himself and look after his own interest.”

These statements lead us to believe that Mr. Lindamood has the capacity to form a valid opinion as to the effect of the lease-purchase contract, but only if the contract was fully and carefully explained to him. The circumstances attending Mr. Lin-damood’s execution of the lease-purchase agreement were not explored on trial of this cause, other than to show that the contract was signed outside the presence of petitioner. This leaves us in doubt as to the capacity of Mr. Lindamood to execute the lease-purchase agreement. To resolve this doubt and to ensure the protection of Mr. Lindamood’s interest in the property, we think it necessary and proper to remand the action against him to the Chancery Court of Knox County for that court to determine Mr. Lindamood’s capacity to execute the lease-purchase agreement. If it is determined that Mr. Lindamood had the capacity to execute the contract under the circumstances attending the signing of the contract, then the chancellor will decree specific performance of the contract and divest Mr. Lindamood of his interest in the property. If it is determined that Mr. Lindamood did not have capacity to execute the contract, the chancellor will then determine if it is in the best interest of Mr. Lindamood to retain the property or to sell his interest at public sale.

Accordingly, the judgment of the Court of Appeals dismissing this action is reversed. The decree of the chancellor is affirmed so far as it decrees specific performance of the lease-contract by respondents, Mary Robinette, Melinda Cooter, and Randall Larkin. The action is remanded to the Chancery Court for further proceedings in accord with this opinion relative to Mr. Lindamood’s interest in the property. Costs incident to the appeal are adjudged two-thirds against the respondents, Mary Robinette, Melinda Cooter, and Randall Larkin, and one-third against the petitioner, Kyle C. North.

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