author: GODDARD, Special Justice.

text:
    Bobby FARMER, Petitioner, v. Edwin FARMER and wife, Eleanor Farmer, Respondents.
    Supreme Court of Tennessee.
    Sept. 22, 1975.
    Gary E. Brewer, Charles R. Terry & Assoc., Morristown, for petitioner.
    Richard C. Jessee, Bacon, Dugger & Jes-see, Morristown, for respondents.
   OPINION

GODDARD, Special Justice.

This case involves the question of whether a general contractor can recover money expended in the construction of a dwelling when he has not complied with the licensing provisions of Chapter 6, Title 62 of the Tennessee Code.

The Chancery Court for Hamblen County awarded Bobby Farmer a judgment in the sum of |4561.98 on the basis of quantum meruit. The Court of Appeals reversed and dismissed.

The facts pertinent to our disposition of this case are relatively undisputed. Bobby Farmer, Plaintiff-Petitioner, who will hereinafter be referred to as Builder, is conceded to be a general contractor as defined by Section 62-601 T.C.A. By oral agreement he contracted to construct a dwelling for Edwin Farmer and wife Eleanor Farmer, Defendants-Respondents, hereinafter referred to as Homeowners. The contractor’s fee was to be 10 percent of the cost of the construction, which was estimated to be between $28,000 and $30,000. This estimate included the price of the lot which was purchased by the Builder at a discount and transferred to the Homeowners on June 19, 1972, about the time the construction began.

Upon completion the total cost, including the 10 percent profit, amounted to $47,387, of which the Homeowners had paid $40,-660.64. The Chancellor found that the Builder was entitled to a judgment of $4561.98 for labor and material for which he had paid and for which he had not been reimbursed by the Homeowners. This sum did not include the 10 percent profit.

The material proof supports the Chancellor’s findings, concurred in by the Court of Appeals, that the cost of the house above the estimate was occasioned by additions and alterations made at the instance of the Homeowners.

This Court, being of the opinion that the second paragraph of Section 62-602 T.C.A. might have application to this case and that it was overlooked both by the Trial Court and the Court of Appeals, granted certiora-ri. The Section provides as follows:

62-602. Qualifications — License required. —Any person, firm or corporation engaged in general contracting in this state shall be required to submit evidence that he is qualified to engage in general contracting, and shall be licensed as hereinafter provided; and it shall be unlawful for any person, firm or corporation to engage in or offer to engage in general contracting in the state, unless such person, firm or corporation has been duly licensed under the provisions of this chapter, as hereinafter provided.
In all counties of this state having populations in excess of sixty thousand (60,-000) according to the federal census of 1960 or any subsequent federal census, all persons, firms or corporations engaged in general contracting within such counties, including such persons, firms or corporations who engage in the construction of residences or dwellings constructed on private property for the purpose of resale, shall be required to submit evidence that such persons, firms or corporations are qualified to engage in general contracting and/or building, and shall be licensed as hereinafter provided; and it shall be unlawful for any person, firm or corporation to engage in, or offer to engage in general contracting or building as hereinabove described, unless such person, firm or corporation has been duly licensed under the provisions of this chapter, as hereinafter provided; provided, however, that corporations, firms or individuals who are the owners of property may construct thereon such buildings, residences or dwellings that are necessary for the individual use of that corporation, firm or individual and are not constructed for the purpose of resale to the general public or to other individuals, firms, or corporations.

This section has had a curious legislative history. The first paragraph is the progeny of Section 1 of Chapter 70 of the Public Acts of 1931, which enacted licensing regulations regarding general contractors. Chapter 70 is substantially the same as Chapter 6, Title 62 of the present Code. This initial act was rewritten by Chapter 135 of the Public Acts of 1945. Section 1 of Chapter 70 was carried forward in Chapter 135 and as Section 7182.24 of the 1950 Code Supplement. Thereafter, it became Section 62-602 T.C.A. By Chapter 162 of the Public Acts of 1965, paragraph one was stricken and paragraph two inserted in its stead. Still later, by Chapter 541 of the Public Acts of 1970, paragraph one was reinserted as the first paragraph of the Section.

Thus, from January 1,1966 (the effective date of the 1965 act) until March 2, 1970, the legislative prohibition against doing business as a contractor without a license only applied to counties with population in excess of 60,000, according to the 1960 Federal Census or any subsequent federal census. Consequently, during this period an unlicensed contractor in Hamblen County, which had a population less than 60,000 by both the 1960 and 1970 Census, was not prohibited from engaging in his trade. The 1970 amendment purports to prohibit contracting activity without a license in all counties.

Considering the legislative history of these two paragraphs and construing them together and along with the other sections of Chapter Six, we conclude it was the legislative intent that contracting without a license be prohibited except:

(1) in counties of population of 60,000 or more according to the 1960 Federal Census or any subsequent federal census, contractors may construct edifices on their own property for their own personal use, and

(2) in counties with less than 60,000 population, contractors, in addition to building upon their own property for their own use, as provided in the first exception, may also build for resale.

The reason for the first exception is obvious. The second exception is reasonable and proper because prior to purchase the buyer has an opportunity to examine the workmanship of the contractor. In this regard we are candid to confess we do not see any particular reason the Legislature would make this exception only applicable to less populous counties.

In any event, the statute as thus construed does not afford any aid to Plaintiff who was not constructing a house on his own property for his own use or for resale. Consequently, his activities were proscribed under the statute.

As our grant of certiorari was not limited to the construction of the second paragraph of Section 62-602 T.C.A., we deem it proper to review the authorities relied upon and the reasoning employed by the Court of Appeals.

Under the general rule an unlicensed artisan or contractor cannot enforce his contract when the licensing statute or ordinance has been construed as a police measure. 51 Am.Jur.2d., Licenses & Permits § 63, p. 68; 82 A.L.R.2d 1432; 15 Williston on Contracts § 1766, p. 251 and § 1768, p. 268 (3rd Ed. 1972); 6A Corbin on Contracts § 1512, p. 710 (1962).

Prior to the enactment of what is now Section 67-4015 T.C.A. (which, as to revenue measures, permits recovery upon the contract when the privilege tax and penalty have been paid prior to adjudication), the Tennessee courts made no distinction between a police and revenue measure. There is in this State a long, unbroken line of authorities back to the year 1888 to the effect that those unlicensed cannot enforce their contracts:

Stevenson v. Ewing, 87 Tenn. 46, 9 S.W. 230 (1888)—(selling real estate);

Cary-Lombard Lumber Co. v. Thomas, 92 Tenn. 587, 22 S.W. 743 (1893)—(furnishing materials and lumber);

Singer Mfg. Co. v. Draper, 103 Tenn. 262, 52 S.W. 879 (1899)—(selling sewing machines);

Gilley v. Harrell, 118 Tenn. 115, 101 S.W. 424 (1906)—(note dealer);

Wright v. Jackson Construction Co., 138 Tenn. 145, 196 S.W. 488 (1917)—(railroad construction); reversed by Supreme Court of United States on other grounds; case styled Chalker et al. v. Birmingham & N. W. Ry. Co. et al., 249 U.S. 522, 39 S.Ct. 366 (1919);

Wender v. Lobertini, 151 Tenn. 476, 267 S.W. 367 (1924)—(real estate agent);

Tenn. Good Roads Co. v. Putnan Const. Co., 11 Tenn.App. 485 (1930)—(road construction);

R. M. Condra & Co. v. Sloan, Irvine & Sloan, 173 Tenn. 686, 122 S.W.2d 440 (1938)—(insurance);

Bush Bldg. Co. v. Mayor and Aldermen of Town of Manchester, 189 Tenn. 203, 225 S.W.2d 31 (1949)—(sewage construction).

We note that even in a criminal case, Ross-Frankel, Inc. v. State, 179 Tenn. 320, 165 S.W.2d 590 (1942) (reversed on other grounds), the predecessor act was held to be a valid “police measure in the regulation of general contractors.”

We are not unmindful that an injustice may occur where a contractor has faithfully and fully performed his contract and no complaint is made as to his skill or workmanship.

We are further aware that the statute in question, unlike the statutes in certain other jurisdictions, e. g., Arizona, California, Michigan, does not in haec verba deny an unlicensed contractor access to the courts. Such construction, however, has been placed upon this and similar statutes by our appellate courts, and made the public policy of this State.

Petitioner urges that although under the authority above cited he may not proceed on the contract for damages he may, nevertheless, sue for restitution on the basis of quantum meruit. We have reviewed cases from other jurisdictions, such as New York, that do permit recovery on this basis. Lindner Appraisal Corp. v. H. Mabel Frewil Corp., 72 Misc.2d 1041, 340 N.Y.S.2d 242 (1973). However, in our jurisdiction, quantum meruit has been specifically considered and rejected. Wright v. Jackson Construction Co., supra.

Authorities in the field also recognize that the refusal to grant relief on the basis of quantum meruit is the majority view. 15 Williston on Contracts §, 1768, p. 268 (3rd Ed. 1972); 6A Corbin on Contracts § 1512, p. 710 (1962); 82 A.L.R.2d 1440.

We think the cases which deny a recovery on quantum meruit under the circumstances here shown, which involve no fraud or overreaching on the part of the Homeowners, are the better reasoned, and are impressed with and adopt the language of the Supreme Court of Washington in Stewart v. Hammond, 78 Wash.2d 216, 471 P.2d 90, 92 (1970), wherein the Court said:

The statute was designed for protection of the public. The overriding public policy must not be defeated by an attempt to accommodate one who has violated its specific provisions, albeit unwittingly. The law will be nullified if noncomplying contractors are permitted to evade the statute by a claim of “unwitting violation” or “undue loss” or by a claim that the other contracting party will be “unduly enriched”. Every noncomplying contractor could raise one or all of the suggested defenses. The remedy for those who find themselves in the position of appellant lies with the legislature.

We accordingly are of the opinion that the Court of Appeals was correct. We overrule the assignments of error, and affirm the Court of Appeals. The costs are taxed to the Petitioner.

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

      . We have also noted that the recitations of the statute then in effect which provide, “In order to safeguard life, health, and property, and to promote public welfare by requiring that only properly qualified persons shall be engaged in general contracting . . .” were not carried forward in the 1950 Code Supplement or in the present Code. We are of the opinion, however, that such intent is implicit in those portions of the statute that do remain in effect.

      . The Homeowners’ complaint, except for a brief reference to water “leakage” in the basement, was the cost overrun which, in the main, was caused by their own extravagance. The proof is not developed as to the water problem and we conclude this defect was not of major significance.


source: Caselaw Access Project

author: FONES, Chief Justice.

license: Public Domain

text:
    A. B. SMITH and C. A. Smith d/b/a Smith Mechanical Contractors, Appellants, v. Fred H. HALE, Appellee.
    Supreme Court of Tennessee.
    Sept. 22, 1975.
    Frank K. Moore, J. Patrick Ledford, Moore, Stout, Waddell & Ledford, Kings-port, for appellants.
    Larry R. Dillow, Dillow & Hopson, Kings-port, for appellee.
   OPINION

FONES, Chief Justice.

This appeal of a workmen’s compensation award of fifty (50%) percent permanent partial disability to the body as a whole, is based upon an insistence that it was error to award more than ten (10%) percent of the right upper extremity because that was the opinion of the treating orthopedic physician.

I.

Employee, Hale, was employed as a plumber’s and sheet metal helper. He was walking on a ceiling beam between the roof and ceiling at a school building when he fell through the ceiling, landing on his head, right shoulder and back on the concrete floor after striking a seat on the way down.

Doctor Maloy, an orthopedic specialist, testified that his x-rays revealed a fracture of the collar bone with displacement of the bones; that the fracture healed but had an abundant amount of callus or healing bone present. This left a hump on the right shoulder.

According to employee he fell from a height of more than fifteen (15) feet and although only his shoulder was treated by Dr. Maloy, he complained about his neck and his spine. He has sharp pains “up the back of my spine” and is not able to go hunting because the kick of a shotgun would hurt his back.

Doctor Maloy was of the opinion that employee had a ten (10%) percent permanent partial disability to the upper right extremity. It was his opinion that employee would suffer discomfort and be limited in performing any work that involved reaching above his shoulder and head for any period of time. It is not clear from his testimony whether he felt that employee would suffer a limitation in the amount of lifting that he might perform.

Doctor Pannell, a chiropractor who began treatment of employee approximately two (2) months after the injury, testified that the collar bone injury affected the spine; that it is adjacent to and articulates with the transverse process of the spine, and that any time an adjacent bone to the spine, like a rib, is fractured and shortened, a permanent situation manifests itself. He was of the opinion that the condition was permanent and that employee suffered between fifty-five (55%) percent and sixty (60%) percent disability to his spine.

Employee testified that he had no special training except for the kind of work that he was engaged in at the time of the injury; that his duties required climbing, stooping, bending, lifting and overhead work. Prior to the accident he was strong and able bodied and performed heavy lifting without difficulty. After attaining maximum recovery from his injury his ability to lift and climb was impaired; the grip in his right hand and the use of his right arm were also impaired. He testified that he continues to have pain in his neck, shoulder and spine. Prior to the accident he worked out with weights and in addition to his employment did heavy work around the house, worked on his car and motors, etc. Since the injury he has been unable to do any heavy work. Employee lived in the home of his parents both of whom testified, corroborating his testimony with respect to limitations upon his work capacity since the injury.

II.

The learned Chancellor awarded fifty (50%) percent permanent partial disability to the body as a whole. In his findings of fact, the Chancellor went into considerable detail, which may be summarized as accepting at full value the lay testimony with respect to employee’s work disability and Dr. Pannell’s testimony that the accidental injury, and the healing with a callus hump have affected the spine permanently.

Employer’s three (3) assignments of error merge into the one assertion that the only competent medical testimony is that employee suffered a ten (10%) percent permanent partial disability to his right arm. In support of the alleged error, employer argues that lay testimony cannot establish permanency of disability and inferentially, that it is not competent on the issue of “work” disability; that the collar bone is beyond the scope of a chiropractor’s competence and that his testimony must therefore be rejected.

III.

In Pulaski Rubber Company v. Rolin, 481 S.W.2d 369 (Tenn.1972), two doctors testified that the employee had sustained a ten (10%) percent disability to the right arm and the trial judge awarded twenty-five (25%) percent. The assignment of error was that the judgment of the court was not in keeping with the medical proof. The assignment was rejected. The court stated the well established rule in this state that there is a difference between a medical disability and the legal meaning of disability under the workmen’s compensation statutes, often referred to as work disability.

“ — The measures of disability, in a medical sense, are substantially more narrow than those contemplated by the Workmen’s Compensation statutes. In determining what may constitute permanent total disability, the concepts embodied in Workmen’s Compensation take into account many pertinent factors, including skill, education, training,, duration and job opportunity for the disabled.” 481 S.W.2d at 371.

Where medical testimony establishes the permanency of an injury, lay testimony becomes admissible and relevant on the issue of the extent of the work disability. There is sufficient material evidence in this record to support the finding of the trial judge that the work disability in this case was fifty (50%) percent.

In Ward v. N. A. Rayon Corp., 211 Tenn. 535, 366 S.W.2d 134 (1962), the court held that a chiropractor is competent to testify as an expert as to matters within the limited scope of his profession. The scope of the profession is defined in T.C.A. § 63-401 as the science of palpating, analyzing, and adjusting the articulations of the human spinal column and adjacent tissues by hand. In Ward the court observed that the chiropractor was competent to testify as to the nerve interference in Ward’s spine, the subluxations of his vertebrae, and the abnormal curvature of the spine.

“. . .He was also competent to express an opinion as to the probable causes and effects of these injuries.” 211 Tenn. at 547, 366 S.W.2d at 139.

The testimony of Dr. Pannell was clearly admissible in this case. The fact that he readily admitted that the treatment of the fracture of the collar bone was beyond the scope of his profession, as it clearly is, did not affect the admissibility or the relevance of his testimony with respect to the condition of employee’s spine and the cause and effect of such condition.

The learned Chancellor’s findings of fact are supported by substantial evidence and are conclusive upon us. The decree of the Chancery Court is affirmed. The costs are adjudged against employer.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.


text:
    STATE of Tennessee ex rel. Willie GILLARD et al., Appellants, v. Howard G. COOK et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      G. Gordon Bonnyman, Jr., Legal Services of Nashville, Inc., Nashville, Adrienne E. Volenik, St. Louis, Mo., for appellants.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for ap-pellees.
   OPINION

FONES, Chief Justice.

This case presents two (2) issues: (1) Whether a juvenile is entitled to counsel at every probation revocation hearing; (2) Whether the standard of proof in juvenile probation revocation hearings should be “beyond a reasonable doubt” or by a “preponderance of the evidence.”

Willie Gillard, the Petitioner below, was found delinquent by a juvenile court on a date uncertain but no later than January, 1973, and was committed to a juvenile institution. He was then released on home placement status (commonly called “aftercare” under prior law) in April, 1973.

On May 9, 1974, this home placement status was terminated without a hearing by an ex parte order of the Juvenile Court of Shelby County, and the Petitioner was returned to a juvenile institution. The named Petitioner filed a writ of habeas corpus and class action on September 24, 1974, challenging the revocation procedures. The State conceded that Petitioner’s revocation of home placement without a hearing was unconstitutional in view of the recent decisions in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). As the law at that time was silent as to the procedure to be followed in the revocation of juvenile probation, the Chancellor, in his order of February 20, 1975, approved procedures to be followed in revocation proceedings as stipulated between Petitioner and State. Subsequent to that order the Tennessee Legislature amended T.C.A. § 37-237 and set by statute the juvenile probation revocation procedures to be followed in this State. Public Acts 1975, ch. 326, § 3. It should be noted that even though the procedures followed in the juvenile court system were revised by Public Acts 1975, ch. 326, §§ 1-7, the two issues presented in this appeal are not affected by that revision.

The learned Chancellor held that a juvenile has a right to counsel at all home placement revocation hearings, and that the proper standard of proof to determine whether Petitioner violated the conditions of his home placement status is “preponder-anee of the evidence”, rather than “beyond a reasonable doubt.”

Petitioner and State appeal from the Chancellor’s decree.

I.

In his argument that the right to counsel is required in every home placement revocation hearing, Petitioner’s main thesis is that the revocation of home placement is merely a continuation of the original proceeding against the juvenile defendant which led to a finding of delinquency and subsequent imprisonment. This is so, the argument continues, because juveniles are not sentenced to a definite period of imprisonment in months or years; thus, when the juvenile is released on home placement, he no longer owes the state any remaining time on the original sentence. Consequently, any future re-imprisonment would constitute an imposition of a new sentence of imprisonment rather than the re-instatement of a previously assessed, but temporarily suspended, sentence. Therefore, Petitioner strongly argues that the holding of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) is controlling, and that the right to counsel attaches at every home placement revocation hearing.

We disagree.

The hybrid and somewhat peculiar functions of our juvenile court system require that a juvenile not be sentenced to a set number of years imprisonment; rather, the juvenile is sentenced to an indefinite term so that he may be released on home placement as soon as he is rehabilitated. Thus, the minimum sentence is an indefinite one. T.C.A. §§ 37-237, 37-437.

The maximum sentence for a juvenile, however, is a definite term of years; that is, the juvenile court may not sentence a juvenile under its jurisdiction to a term of imprisonment which would extend beyond his twenty-first (21st) birthday. T.C.A. §§ 37-203(c), 37-437. This juvenile sentencing structure is comparable to the Tennessee Indeterminate Sentence Act, T.C.A. § 40-2707, which has been in effect in this state since 1913. Public Acts, 1913, ch. 8, § I-

We reject the idea that a juvenile released on home placement status no longer owes the state any remaining time on the original sentence just as we would reject that proposition if raised on behalf of an adult sentenced under T.C.A. § 40-2707. It is true that the juvenile does not owe the state any more time in institutional custody if he complies with the terms of his home placement, but he still owes the state time in his home placement status. A revocation of home placement is not in any sense a new finding of delinquency with a new and indefinite commitment; rather, it is merely a finding of a violation of the conditions of his home placement with a return to imprisonment under the original sentence.

This situation is governed by the holding of Gagnon v. Scarpelli, supra, where the adult defendant was first found guilty, sentenced, and then placed on probation. His probation was later revoked at a revocation hearing, and he was returned to prison to serve the remainder of his sentence. In that case the Court extended the right of counsel to alleged probation violators appearing before a probation revocation board if the probationer makes a request for counsel:

“. . . based on a timely and colora-ble claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present.”

411 U.S. at 790, 93 S.Ct. at 1764

Additionally the Court noted that in doubtful cases it should also be considered “. whether the probationer appears to be capable of speaking effectively for himself.” 411 U.S. at 791, 93 S.Ct. at 1764. We find this to be especially applicable to juveniles because of the age, maturity, and level of articulative development of children faced with proceedings in juvenile court.

The critical distinction between Mempa and Gagnon is that in Mempa, the revocation process was interwoven with the deferred sentencing process, while in Gagnon only the post-adjudicatory probation revocation was at issue.

In the situation presented by the case sub judice, the sentencing process has been completed and is not involved in a subsequent administrative hearing to determine whether to revoke home placement. Thus, the presence of counsel is not mandated at every hearing at which home placement could be terminated. The juvenile judge must consider each case on its merits, utilizing the criteria specified in Gagnon v. Scarpelli, supra, 411 U.S. at 790, 791, 93 S.Ct. 1756 to determine whether the appointment of counsel is required. As a general rule, counsel should be provided, and, as mandated under Gagnon, any doubt should be resolved in favor of appointment of counsel.

II.

The Chancellor below correctly held that the standard of proof in a proceeding in juvenile court to revoke home placement is the “preponderance of the evidence” standard. Petitioner attacks this holding, maintaining that the alleged act or acts which constitute grounds for revocation of home placement should be proved beyond a “reasonable doubt.” He bases this contention upon the proposition that a juvenile who has his home placement revoked is faced with the imposition of a new sentence. We reject this contention for the same reasons advanced in the preceding discussion: revocation of home placement does not constitute imposition of a new sentence; it is a recommitment under the previously imposed sentence.

Petitioner also argues that, even though adult parolees and probationers need not have parole violations established beyond a reasonable doubt, Davenport v. State, 214 Tenn. 468, 381 S.W.2d 276 (1964), the structure of the juvenile system requires a higher level of due process for juveniles than adults, and proof beyond a reasonable doubt is necessary for the protection of juveniles. As authority for this proposition, Petitioner cites several cases. An analysis of these cases indicates that while revocation of probation was at issue, all of the proceedings were filed as original delinquency petitions, and most relied on In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) for the proposition that “beyond a reasonable doubt” is the applicable standard in adjudicating delinquency. In Re Z, 10 Cal.App.3d 565, 89 Cal.Rptr. 246 (1970) (Adjudicatory stage of juvenile court proceedings), In Re Taylor, 268 A.2d 522 (D.C.App.1970) (Also adjudicatory stage). In Re Walker, 282 N.C. 28, 191 S.E.2d 702 (1972) involved an adjudication of delinquency based on probation violations. The court there felt Winship was not applicable “. . . and is not authority for the argument that the findings here must be made upon proof beyond a reasonable doubt.” 191 S.E.2d at 711.

The Supreme Court of Arizona in In Re Maricopa Juvenile Action, 111 Ariz. 135, 524 P.2d 1310 (1974) considered the issue of the applicable standard of proof in juvenile probation revocation proceedings and determined that the standard should be the same for juveniles as for adults: “Due process does not require that a higher standard be established for the revocation of the probation of a juvenile.” 524 P.2d at 1311.

To require the state to prove beyond a reasonable doubt that the juvenile offender committed the act charged, be it a technical violation or a new criminal offense, would unduly burden the state in the supervision of juveniles put in home placement. This would have the effect of requiring the state to begin anew an adversary criminal proceeding each time home placement was sought to be revoked.

The juvenile is certainly entitled to the same standard of proof as an adult, but we do not feel that due process accords him a higher standard.

The decree of the Chancery Court that the juvenile has a right to counsel at all home placement revocation hearings is modified as herein provided, and affirmed as to the standard of proof applicable at said hearings.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.

      . “Home placement”, as defined in T.C.A. § 37-302(13), Public Acts 1975, ch. 326, § 1, in the juvenile court system is a release of the juvenile from institutional custody which is analogous to administrative parole in the adult criminal courts. Contrast home placement with “probation,” T.C.A. § 37-203, in the juvenile court system which is generally considered analogous to judicial probation in the adult criminal courts. A juvenile placed on probation is not required to serve any time in the custody of the Department of Corrections prior to being released to the custody of a parent or guardian.

      . Note 2 on p. 547.

        2. Public Acts 1963, ch. 208, § 2, codified in T.C.A. § 37-1102, and amended by Public Acts 1975, ch. 326, § 6.

      . Petitioner, Jerry Douglas Mempa, was convicted of a criminal offense and placed on probation for two (2) years. The imposition of a sentence was deferred under a Washington state statute. Petitioner’s probation was subsequently revoked at a hearing at which he was not represented by counsel, and he was then sentenced to the maximum sentence of ten (10) years, which was required by law, with a recommendation to the parole board that he serve only one (1) year. The Supreme Court held that representation by counsel was essential because the imposition of sentence at the probation revocation hearing rendered that hearing a “critical stage” of the criminal process.

      . The Court in Winship held that during the adjudicatory stage of a delinquency proceeding, the Constitution mandated that the fact of delinquency be proved beyond a reasonable doubt.


author: HENRY, Justice.

text:
    William W. FARRIS et al., Appellants, v. Leonard Ray BLANTON et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 10, 1975.

      C. Cleveland Drennon, Jr., County Átty., Brian L. Kuhn, Asst. County Atty., for appellants Farris, and others.
    John D. Martin, Jr., Martin, Tate, Morrow & Marston, Memphis, for appellees.
    D’Army Bailey, Memphis, for Squire Walter Lee Bailey, Jr., individually.
    Robert H. Roberts, Advocate Gen., for Governor Blanton and other State Officials.
   OPINION

HENRY, Justice.

This declaratory judgment action, brought pursuant to Sec. 23-1101 et seq., T.C.A., focuses upon the constitutionality of Chapter 354 of the Public Acts of 1975 designed, according to its caption, “to provide for a run-off election in counties with a mayor as head of the executive or administrative branch of the county government”. This law applies only to Shelby County, Tennessee.

Arrayed on opposite sides of the issue are the Chairman of the Shelby County Quarterly Court and four members, who assert the unconstitutionality of the statute, and four other members of the Court, the Shelby County Commissioners and the Shelby County Election Commission, all of whom assert its constitutionality.

All sitting chancellors in Shelby County very properly recused themselves and the Chief Justice designated Chancellor Len G. Broughton of Knoxville to hear and determine the controversy.

Chancellor Broughton held the Act to be constitutional and this appeal ensued.

I.

The controlling issue presented on this appeal is whether Chapter 354 of the Public Acts of 1975, though general in form, is local in application and effect and thus requires ratification in the manner prescribed by Article 11, Section 9 of the Constitution of Tennessee, commonly known as the “Home Rule” amendment.

The second paragraph of Article 11, Section 9, was adopted by the Limited Constitutional Convention of 1953, and submitted to the electorate as Amendment No. 6, in an election conducted on 3 November 1953. Pursuant to approval the Governor proclaimed adoption on 19 November 1953. This amendment provides:

The General Assembly shall have no power to pass a special, local or private act having the effect of removing the incumbent from any municipal or county office or abridging the term or altering the salary prior to the end of the term for which such public- officer was selected, and any act of the General Assembly private or local in form or effect applicable to a particular county or municipality either in its governmental or its proprietary capacity shall be void and of no effect unless the act by its terms either requires the approval by a two-thirds vote of the local legislative body of the municipality or county, or requires approval in an election by a majority of those voting in said election in the municipality or county affected.
Since 19 November 1953, it has been firmly established that any and all legislation “private and local in form or effect” affecting Tennessee counties or municipalities, in any capacity, is absolutely and utterly void unless the Act requires approval of the appropriate governing body or of the affected citizenry.

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

We gauge Chapter 354 of the Public Acts of 1975 by this standard. Omitting the sponsors (51 in the House; 2 in the Senate) the Act reads as follows:

AN ACT to amend Tennessee Code Annotated, Title 5, Chapter 1, to provide for a run-off election in counties with a mayor as head of the executive or administrative branch of the county government.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:
SECTION 1. Tennessee Code Annotated, Title 5, Chapter 1, is amended by adding the following:
In all elections for mayor in a county with a mayor as head of the executive or administrative branch, a candidate must receive a majority of the votes cast for the office of mayor, and if no candidate receives such a majority of votes, then a run-off election shall be held four (4) weeks thereafter wherein the names of the two (2) candidates receiving the highest number of votes cast for the office of mayor shall be placed on the official ballot or voting machine, and the candidate receiving a majority of the votes cast in the run-off election shall be elected. However, in counties whose charter provides for the date of the run-off, the charter provision shall determine the date, and not the legislative body as set forth by this Act.
SECTION 2. This Act shall take effect upon becoming a law, the public welfare requiring it.

Within the framework of the test hereinabove announced we must determine whether this legislation was designed to apply to any other county in Tennessee, for if it is potentially applicable throughout the state it is not local in effect even though at the time of its passage it might have applied to Shelby County only. But in determining potential applicability we must apply reasonable, rational and pragmatic rules as opposed to theoretical, illusory or merely possible considerations.

II.

Those who support the constitutionality of this enactment would have us equate the county mayor with the mayor of a metropolitan government. To this we cannot agree.

Ninety-three counties of Tennessee have the conventional form of County Government, with a County Judge or Chairman as the Chief Administrative officer (with sorely limited executive responsibilities and powers). Davidson County has a consolidated city-county government operating under the name and style of The Metropolitan Government of Nashville and Davidson County.

In 1974, in an obvious and commendable effort, to create a more stable and responsive county government, the people of Shelby County, through their elected representatives procured the passage of Chapter 260 of the Private Acts of 1974. This enactment was conditioned upon the approval by a two-thirds (%s) vote of the Quarterly County Court of Shelby County, within forty-five (45) days after approval of the Chief Executive of the State of Tennessee. It was further subject to the approval of a majority of the voters of Shelby County, voting in a referendum to be held on August 1, 1974. It was approved by the Governor on 21 March 1974 and the certificate of its ratification is on file in the office of the Secretary of State.

The phraseology of the question presented to the electorate was approved by this Court in Rodgers v. White, et al. (Tenn.1975).

This enactment is generally known as the Shelby County Restructure Act. It vests the government of Shelby County in a may- or-county court form of government, and contains the broadest form of conference of powers. The executive and administrative powers are vested in a county mayor and the Act provides that the first county may- or shall be elected in a special election to be held 9 October 1975.

It should be emphasized that Chapter 260 of the Private Acts of 1974, has absolutely no effect on the government of the City of Memphis.

Shelby County stands unique among the counties in Tennessee. It, and it alone, has a county mayor. No other county may have such a form of government except by the affirmative action of the General Assembly. There is no general enabling act under which any other county may opt to so operate. Thus, Chapter 354 of the Public Acts of 1975 relates to Shelby County alone.

The Metropolitan Government of Nashville and Davidson County stands on an entirely different footing. Amendment No, 8, proposed by the Limited Constitutional Convention of 1953, approved by the people and proclaimed by the Governor, provides in part:

The General Assembly may provide for the consolidation of any or all of the governmental and corporate functions now or hereafter vested in municipal corporations with the governmental and corporate functions now or hereafter vested in the counties in which any such municipal corporations are located

Pursuant to this proviso the General Assembly adopted Chapter 120, of the Public Acts of 1957, carried forward in the official Code as Sec. 6-3701 et seq., T.C.A. In general terms this was an enabling act permitting each county within the state, without regard to population, and the municipal corporations within such county, to consolidate all, or substantially all, of their governmental and corporate functions. It was specified that the Charter would provide for “the names or titles of the administrative and executive officers of.the metropolitan government”. Sec. 6-3711(n).

This statutory scheme obviously contemplates a consolidated government with a single executive head. Nashville and Davidson County brought themselves under its provisions. It could have designated the resulting governmental entity as:

a. The Nashville Metropolitan Government, or
b. The Davidson County Metropolitan Government, or
c. The Metropolitan Government of Nashville and Davidson County (which it selected),
or
d. Any other name as the Charter Commission shall deem historically and geographically appropriate. Sec. 6-3711(c).

The Chief Executive officer, might be given any designation determined by the Charter Commission. Assuming that he was to be designated as “Mayor” the resulting title would have been:

a. The Mayor of Metropolitan Nashville, or
b. The Mayor of Metropolitan Davidson County, or
c. The Mayor of Metropolitan Nashville and Davidson County, or
d. The Mayor of such other designation as the Charter Commission deemed appropriate.

Thus it follows that Nashville and Davidson County, or any other principal city and county in the state may have a county mayor, but he would be the chief executive officer of a consolidated entity and not merely the executive head of a single coordinate branch government. He would not be a “County Mayor” as contemplated in Chapter 354 of the Public Acts of 1975.

For these reasons, it is a fallacy to attempt to equate the County Mayor of Shelby County with the Mayor of the Metropolitan Government of Nashville and Davidson County, or with any mayor of any consolidated government which may hereafter emerge under the Metropolitan Government enabling act.

III.

This court had under consideration an analogous situation in Lawler v. McCanless, 220 Tenn. 342, 417 S.W.2d 548 (1967). By Chapter 122 of the Public Acts of 1965, the Legislature undertook to amend the general law establishing courts of General Sessions in certain counties. The amendatory act applied, by population classification, to Gibson County alone. This public act was attacked upon the ground that it violated Article 11, Section 9 of the Constitution of Tennessee in that it did not provide for ratification in the prescribed manner. The Court phrased the issue thusly:

The question for our determination is whether the amendatory Act of 1965 is local in form or effect and applicable to Gibson County alone' in its governmental capacity. 417 S.W.2d at 551.

Among the arguments advanced to support the constitutionality of the Act was the fact that the “Legislature labelled the amendatory Act a Public Act”.

The court rejected this argument and held that the Public Act in question was “an Act local in effect applicable to Gibson County alone and violates Article XI, Section 9, of the Constitution of our State and is void”.

We reaffirm Lawler and apply its rationale to the instant case.

Our attention has been called to a memorandum opinion rendered by Justice Harbi-son, while sitting as Special Chancellor of Part I of the Chancery Court of Davidson County, in 1968, in the matter of The Appointment of a Process Server. Involved was Chapter 530 of the Public Acts of 1968, which authorized judges, in counties within certain population brackets (Knox and Davidson) to appoint process servers, under certain conditions. An attack was made on the basis of Article 11, Section 9 of the constitution. Special Chancellor Harbison, held, in pertinent part:

There is no provision in Chapter 530 for such local approval, either by vote of the legislative body or by the people. Therefore, if Chapter 530 is “local in form or effect applicable to a particular county or municipality either in its governmental or proprietary capacity” the statute violates the home rule amendment.
The Court is of the opinion that the subject statute is such a local Act. At the time of its passage, only two counties of the state were affected by the population classification set out therein. The statute is not local in form, because it was enacted as a Public Act. This, however, in and of itself is of no significance. If the statute is local in effect, then it must comply with the home rule amendment. See Lawler v. McCanless, 220 Tenn. 342, 417 S.W.2d 548, 550 (1967).

The appellees place strong reliance upon the decision of the Court of Appeals for the Middle Section in Boone v. Torrence, 63 Tenn.App. 224, 470 S.W.2d 356 (1971), and particularly cite us to the following portion of the opinion:

We cannot agree with this insistence. Regardless of what the sponsors of the Act may have intended it to be, we do not believe the General Assembly intended for it to be a private or a local Act, for at least two reasons:
First, because it purports to amend a Code Section which is a general law; and second, because it contains no language which requires local approval thereof as required by the express provisions of Article 11, Section 9, supra. In Winter v. Allen (1963), 212 Tenn. 84, 367 S.W.2d 785, and Frazer v. Carr (1962), 210 Tenn. 565, 360 S.W.2d 449, the Supreme Court held that 6-3701 et seq. is a general law. 470 S.W.2d at 366.

We do not fault this as a general statement of the law; however, we must read it in the context of its pronouncement. The Court was dealing with a Public Act amending the Public Act enabling cities and counties to merge their operations into a metropolitan form of government. Here we look to substance and not to form, and in so looking, the conclusion is inescapable that in the last analysis, Chapter 354 of the Public Acts of 1975 was in actuality an amendment to Chapter 260 of the Private Acts of 1974.

Strong reliance is also placed upon Doyle v. Metropolitan Government, 225 Tenn. 496, 471 S.W.2d 371 (1971). In that case the Court was dealing with an amendment to Sec. 6-202(16), a general law having statewide application “to all those who desire to come within its purview”. The Court was very careful to point out that “nowhere in (the act) can we glean any intention of the Legislature that this Act was to apply solely to the Metropolitan Government of Nashville and Davidson County”.

Appellees further rely upon Metropolitan Government of Nashville and Davidson County v. Reynolds, 512 S.W.2d 6 (Tenn.1974). Again the Act under scrutiny applied “to all counties, opting for a metropolitan form of government”. The Court pointed out that “because the sections are general and amendatory of the state election laws, no local ratification is required” and that “there is no merit to appellant’s contention that because it is the only metropolitan government in the state, at this time” that these statutes are of local application.

The whole fallacy of appellee’s argument is evident from this quotation from the brief of counsel:

(T)he runoff law is an amendment to a chapter of the Code which deals generally with all counties in the state. The runoff law was not intended to apply to one county alone, but rather applies to all counties in the state which now or hereafter have a mayor as head of the executive or administrative branch.

We reiterate that the run-off law applies solely to Shelby County under the present laws of the State of Tennessee. We cannot conjecture what the law may be in the future. We are not at liberty to speculate upon the future action of the General Assembly.

A similar argument was made in Board of Education of Memphis City Schools v. Shelby County, 207 Tenn. 330, 339 S.W.2d 569, wherein the Court said:

However, it should be noted that the language does not vest in any other county or county school system the privileges purported to be granted Shelby County under its Private Act but reserves to the Legislature the right to grant such privileges by future Private Acts. Under this Act, any authority for school systems to change the apportionment of local school funds from the manner provided by the general law must yet come from the Legislature by Private Act. In other words, the Legislature has undertaken to authorize a suspension of the general law by Private Act, which cannot be done under the State Constitution. Furthermore, notwithstanding the language of said Public Act, the Legislature could take such action, with reference to the passage of any such Private Act as it might see fit at the time, either passing or rejecting the same. Then, too, there is the matter of the Home Rule Amendment to the Constitution, and any results thereunder would be speculative. The result, therefore, of any such attempted legislation is that there is no absolute assurance given that any other county school system can avail itself of the same privileges attempted to be granted Shelby County under Chapter 711, Private Acts of 1947, as amended. Any privileges purported to be granted other school systems of the State, by the aforesaid disputed sentence of Section 8, sub-sections (l)(c), of Chapter 14, Public Acts of 1959, are contingent, speculative, lacking certainty, and dependent upon future action of the Legislature. 339 S.W.2d at 580.

'IV.

Finally, in an effort to ascertain the legislative intent we have examined the official records of the legislative proceedings on file in the State Library and Archives. Based upon that examination there can be no reasonable dissent from the proposition that the sole purpose of Chapter 354, was to provide a run-off election in Shelby County and Shelby County alone; that this was purely a local issue: and that in reality a general law was used as a device to amend a private act which could not be passed because of a rift in the Shelby County delegation. An extract of these proceedings appears as an appendix to this opinion.

V.

In summary we hold that Chapter 354 of the Public Acts of 1975 is private and local in effect and application; that it applies to Shelby County alone in its governmental capacity; and because it was not conditioned upon the approval by a two-thirds vote of the Quarterly County Court, or a majority of those voting in an election, as required by Article 11, Section 9 of the Constitution of Tennessee, it is wholly and utterly void.

There will be no run-off election for the office of County Mayor, following the 9 October 1975 election.

The decision of the Chancellor is reversed. The costs will be paid by Shelby County.

FONES, C. J., COOPER and HARBI-SON, JJ., and HYDER, Special Justice, concur.

APPENDIX

An extract of the record of proceedings of the House of Representatives on May 12, 1975. (Record No. H-180).

MR. MOORE OF SHELBY:

Moved passage of HB 345 in order “that we may have a run-off election in Shelby County”.

MR. KING OF SHELBY:

(This) is a violation of an agreement that was made between the members of the Shelby County delegation and the 88th General Assembly, the Shelby County Court and all the voters of Memphis & Shelby County, Tennessee. Last year we passed, after quite a bit of debate, a Shelby County Restructure Bill. One of the problems that we had before we brought the bill to you all was that we had never had a run off in Shelby County government nor did this bill provide for a run off in Shelby County government. We passed the bill; it was ratified by a two-thirds vote of our County Court, and then it went to a referendum and all the people in Memphis and Shelby County voted for the bill in its present status. Now there are some members of our delegation who are coming to you and asking you to change that agreement by adopting this bill. I ask that you do not support HB 335.

MR. MARTIN OF SHELBY:

Mr. Speaker and members of the House, this is the same piece of legislation that was before you last week. As I stated at that time this does only one thing and that is it suggests that Shelby County should choose the chief executive officer of that county by a majority vote — a majority of those participating in the election. Mr. Speaker and members of the House, this is probably been one piece of legislation that has caused a lot of the squabbling in Shelby County that we have tired you with on the floor of the House. Now this vote you are about to cast is something that should end that squabbling for this year; ... I know that is something you will be thankful for

Thereafter a motion for the previous question was put and prevailed, and after immaterial comments, questions and rulings, the bill was placed upon third and final reading, with the result that it passed by a vote of 54 to 14.

AN EXTRACT OF THE RECORD OF PROCEEDINGS OF THE STATE SENATE ON MAY 22, 1975. (Record No. S-178).

SENATOR PERSON OF SHELBY:

This is the bill that provides for a run-off election for the office of County Mayor. At the present time to the best of my knowledge Shelby County is the only county in this state that has the office of County Mayor which was created by the restructuring act passed by this body last year

SENATOR FORD OF SHELBY:

Now this bill here runs contrary to the judgment of the people of Shelby County. They voted on this matter a year or so ago in a referendum knowing full well that the provision for a run-off did not apply. The Shelby County delegation is split on this issue. I believe there are three Senators for, three against, or something like that, but we’re split on this. I submit to you this is a Shelby County fight and we should not bloody the body of the Senate in this fight. (At this point, Senator Ford read to the Senate a letter from the Attorney General’s office holding that, since it would require legislation for any other county to provide for such form of government, it would raise a serious question as to whether or not it is a private act for the purpose of Article 2, See. 9 of the constitution, requiring local ratification).

Ford (continuing): Now I submit that the restructive bill that was passed by the legislature last year, or year before last, whatever, it provided for local ratification before it became law. This particular run-off is a part of that total restructure. It does not provide for local ratification. This is why the Attorney General is a ruling upon this matter. It is unconstitutional, it will be thrown out. I see no reason why this body, in its good and wise judgment, ought to get involved in a fight between the Shelby County delegation or ought to get involved in a fight where there is a question as to the constitutionality of it. And I respectfully submit that this body ought to turn this particular matter down.

Amendment No. 1 was proposed and was seconded by Senator Gillock of Shelby County.

Senator Person then spoke to the amendment and asserted his basic belief in run-off elections. A motion to table was made.

Senator Ford again spoke, reiterating his earlier arguments, particularly commenting in the absence of a ratification clause.

(Record S-179)

Motion to table prevailed.

SENATOR BAIRD, commented that this appeared to him to be “a local matter”.

SENATOR WHITE OF SHELBY: This is a local fight in Shelby County. Let me make it quite clear that this isn’t drawn as a general bill, but what it says ... is that in counties that have a mayor as the head of the executive branch and there are only two — that’s Davidson County and Shelby County and Davidson County’s may- or already has — they already provide a runoff — so this bill is a general bill drawn to affect Shelby County only. It’s a local bill and a local fight. Now why isn’t it drawn as a private bill? Because they couldn’t pass it as a private bill. Why couldn’t they? Because we don’t have a unit rule in the House — the Shelby County House delegation, because they cannot agree over there. We’ve got seven black members and eleven white members and they can’t agree on a unit rule so the speaker has said any local bill has to have eighteen signatures . or else it goes to committee. The restructure bill got eighteen house signatures last year, and it only got them because the black members were assured that there would be no run-off provision to it and the run-off was unconstitutional. And I was part of the group that assured them that . There were some members of the House, some Republican members, who demanded a run off, but black members said if you put it in there we won’t vote for the bill. The matter was resolved when the black members were informed that a run-off would be unconstitutional .

* * * * * *

I’m pleading with you not to get involved in this Shelby County fight and create what will be a rift that I feel will never heal . . The black legislators, I think with good cause; think that we have double crossed them now by coming back with a general bill when we couldn’t have passed the restructure bill if we had put a run-off in it.

Senator Person’s response was aimed at convincing his colleagues of the merit of run-off elections and the duty of all senators, irrespective of their place of residence, to support run-off elections.

Record S-180 — May 27, 1975

After other amendments were rejected or withdrawn, the Senate set this matter and was placed upon the calendar for May 27, 1975.

On May 27, 1975 the following ensued:

Senator Person moved the passage of this bill on third and final reading.

Senator Ford spoke in opposition, pointing out the absence of any provisions relating to ratification.

Thereafter, the measure passed by vote of 22 to 3.

OPINION ON PETITION TO REHEAR

The petition to rehear is respectfully denied.

All concur.

      . We expedited the hearing of this appeal and a decision in order to avoid the uncertainty and confusion which would have re-suited had this issue not been timely decided.

      . It should be noted that among the fifty-one House Sponsors of the proposal (HB 345) were nine members of the Shelby Delegation and that the sponsors of the companion Senate Bill (SB 461) were two Shelby County Senators.
      Further indication of the local interest and nature of this enactment is the close division of the legislative delegations from Shelby County on final passage. Seven members of the House voted for passage; seven against, three not voting. In the Senate three Senators voted for, two against and one not voting.


author: CARNEY, Presiding Judge.

text:
    Melvin A. LEVY, d/b/a Beltone of Knoxville, Petitioner-Appellant, v. Jerry Brice BAKER, d/b/a Baker Hearing Aid Service, Defendant-Appellee. Jerry Brice BAKER, Petitioner, v. Melvin A. LEVY et al., Respondents.
    Court of Appeals of Tennessee, Western Section.
    Aug. 14, 1973.

      Calvin N. Taylor, Knoxville, for appellant Melvin A. Levy, d/b/a Beltone of Knoxville.
    Carey E. Garrett and L. B. Bolt, Jr., Knoxville, for appellee Jerry Brice Baker.
    David Pack, Atty. Gen., and Alex B. Ship-ley, Jr., Asst. Atty. Gen., for respondents Tennessee Bd. of Hearing Aid Dispensers.
   CARNEY, Presiding Judge.

The plaintiff below, Melvin A. Levy, d/b/a Beltone of Knoxville, has appealed from a decree of the Chancery Court of Knox County dismissing his petition seeking to enjoin the defendant, Jerry Brice Baker, from selling hearing aids in competition with the plaintiff, Melvin A. Levy, for a period of two years from April, 1972. The plaintiff, Melvin A. Levy, does business as Beltone of Knoxville with his principal business office located in Knoxville, Tennessee. He has the exclusive franchise to sell Beltone Hearing Aids in some fifteen or twenty counties in East Tennessee and three counties in Southwest Virginia, namely, Lee, Scott, and Washington Counties. The defendant, Jerry Baker, resigned as salesman for plaintiff Levy in April, 1972, and went immediately in competition with Levy setting up an office in Maryville, Blount County, Tennessee, and selling Fidelity and Audivox Hearing Aids. Later he dropped Fidelity and took a franchise for Odocon Hearing Aids.

On October 20, 1970, the defendant Baker, who was then 32 years of age, a resident of Maryville, Tennessee, a graduate of the University of Tennessee, and whose previous experience as a traveling salesman was selling drugs to doctors, applied for and received employment with the plaintiff, Melvin A. Levy. Mr. Baker had had no previous experience with hearing aids.

Plaintiff Levy, as a condition to Baker’s employment, insisted upon his signing a written agreement containing a non-competitive provision which prohibited Baker from competing in the same type of business for a period of two years after the termination of employment in the entire franchise area in which the plaintiff Levy sold Beltone Hearing Aids. Plaintiff Levy spent about $4,000.00 training the defendant Baker to be a competent hearing aid salesman. Such training consisted of direct on-the-job supervision, audio-visual films prepared by Beltone, a Beltone Training Manual, and a home study course from the National Hearing Aid Society. Mr. Baker was taught how to fit hearing aids, the nature of sound, the effect of amplification, and the process of measuring hearing losses. As a direct result of the defendant’s training the defendant Baker received a permanent license “to dispense hearing aids” from the Tennessee State Board of Hearing Aid Dispensers.

Baker sold something over 100 hearing aids for approximately $40,000.00 gross sales during his employment with Levy. These sales were made in twelve counties of East Tennessee. During the time the defendant Baker worked for Mr. Levy he had access to a list of Mr. Levy’s customers as well as a list of “leads” or potential customers. Hearing aids are usually replaced every four years.

Mr. Levy, in cooperation with Beltone, did extensive advertising by direct mail, newspaper, radio, and television asking people who were hard of hearing to send in their names for interviews, etc. Mr. Baker testified that he had not called on Levy customers but that a number of the people on Mr. Levy’s list of potential customers were also listed as potential customers by other makers of hearing aids including the ones sold by. Mr. Baker. Mr. Baker admitted that he was using the same telephone number in his new business on his business card that he had used while representing the plaintiff and Beltone.

His Honor the Chancellor found that since Mr. Baker had domestic responsibilities toward his father and mother who lived in Blount County and who were not well, the hardship of an injunction against defendant would outweigh the benefits that would inure to the plaintiff if the injunction were granted. His Honor the Chancellor predicated his decision upon the case of Kaset v. Combs, (1968), 58 Tenn.App. 559, 434 S.W.2d 838.

In our opinion the facts of the instant case are entirely distinguishable from those obtaining in the Kaset case and the rule of the Kaset case should not be applied in the instant case.

In the Kaset case the employer operated a catering service in Chattanooga furnishing food and drink primarily to establishments during their coffee break rest periods and lunch hours. The defendant employee operated one of complainant’s mobile catering trucks for about six and one-half years before quitting. He had signed an agreement not to work for any other employer engaged in similar business within a radius of 35 miles from Chattanooga except with the consent of the employer in writing. In the Kaset case the employee, after his employment was terminated, tried to make a living by operating a beer tavern and cafe but was unsuccessful. Some four months later he accepted employment with Blay-lock, a competitor of the complainants. Both the Chancellor and the Court of Appeals found that the identity or personality of the driver of the caterer’s truck had little to do with sales and that it was the quality of the product that largely controlled the sales. No trade secrets were involved. The employee tried to get employment in Rome, Georgia, outside the 35-mile radius but found that his two invalid children could not get adequate schooling in Rome.

In the case at bar the employee Baker is a college graduate; he fully understood the written agreement which he signed; he received specialized training worth approximately $4,000.00 from the plaintiff Levy and also received his permanent license to sell hearing aids as a direct result of much training. He has made no effort to go into any other kind of business nor obtain any other employment. He was a drug salesman prior to receiving the specialized training under the plaintiff and there is no evidence that he has even inquired about his former employment or a similar job during the two-year period provided for in his written contract. The preponderance of the evidence is that the defendant is now interested only in going into business in competition with his former employer which he agreed in writing not to do.

We hold that the defendant Baker stands on an entirely different plane from the defendant Combs who drove the catering truck in Kaset v. Combs, supra. In the hearing aid business the ability of a salesman to fit hearing aids, his knowledge of the product he sells, his knowledge of hearing aids in general, along with his personality and enthusiasm are all important factors in the sale of hearing aids, whereas the driver of a catering truck has very little to do with the sale of his product. To permit the defendant Baker to renege on his solemn written contract would mean that the plaintiff Levy and other employers similarly situated would have no protection against competition from men upon whom they spent several thousand dollars training as employees.

It would be inequitable to the plaintiff Levy and contrary to the public interest to establish such a precedent. Again, we differentiate the present case from Kaset v. Combs in that in the Kaset case the employee truck driver Combs had two invalid children who could not get adequate schooling in another town, whereas the defendant Baker is unmarried, though his father and mother, who live in the same town with him, have had a heart attack and high blood pressure respectively. There is no showing of any inability on the part of the defendant Baker to move outside of the plaintiff’s franchise area and operate his hearing aid service in other areas such as Middle or West Tennessee, North Georgia, or Western North Carolina. His brother is a pharmacist in nearby Madisonville, Tennessee, and can keep reasonably close touch with the father and mother.

Upon the authority of Ramsey v. Mutual Supply Company, (1968), 58 Tenn.App. 164, 427 S.W.2d 849, we sustain the plaintiff’s assignments of error and reverse the decree of the lower Court. The cause will be remanded for entry of a decree enjoining the defendant Baker from engaging in the hearing aid business in any of the counties covered by the plaintiff Levy’s Beltone franchise for a period of two years from the date of the entry of the decree below.

In the case of Baker v. Tennessee Board of Hearing Aid Dispensers, consolidated for appeal with Levy v. Baker, the appellee Baker sought an injunction to prevent the Board of Hearing Aid Dispensers from taking any administrative action against the defendant Baker. The Chancellor dismissed the petition for injunctive relief from which the petitioner Baker has appealed. On the authority of Insurance Company v. Craig, (1901), 106 Tenn. 621, 62 S.W. 155, and Davis v. Fentress County Board of Education, 218 Tenn. 280, 402 S.W.2d 873, we uphold the action of His Honor the Chancellor in dismissing said petition. We also sustain the action of the Chancellor for the further reason that the Board of Hearing Aid Dispensers has taken no affirmative action on the complaint filed against the plaintiff Baker.

The appellee-appellant Baker is taxed with the costs in the lower Court and in this Court.

MATHERNE and NEARN, JJ., concur.


text:
    James Robert PERRITT, Plaintiff-Appellee, v. Brenda Bee PERRITT (Dickson), Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Oct. 17, 1973.

      W. H. Lassiter, Maddox, Lassiter & Jones, Huntingdon, for appellant.
    J. Lee Taylor, Taylor & Keeton, Hunting-don, for appellee.
   CARNEY, Presiding Judge.

Defendant-appellant, Mrs. Brenda Bee Perritt (now Dickson), has appealed from an order of the Chancery Court confirming the report of the Clerk and Master as to the inventory and value of personal property owned by the plaintiff, her former husband, James Robert Perritt, at the time the parties separated.

His Honor the Chancellor granted the plaintiff, James Robert Perritt, a divorce and approved a property settlement of the parties which, among other provisions, required the plaintiff to pay $90.00 per month for the support of their 5-year-old child. Custody of the child was given to the defendant wife. The parties agreed that a 90-acre farm owned as tenants by the entirety would be sold and the net proceeds divided equally. The farm was unencumbered.

Plaintiff was engaged in farming and had accumulated a quantity of farming equipment and livestock.

We quote pertinent paragraphs of the decree approving the settlement and ordering a reference:

“It is therefore ordered that the Master hear proof, including that on file and of record and report to the Court, the following:
1. What personal property was owned by the plaintiff on the date of the separation on December 5, 1971. This shall include all personal property, cash on hand, money in bank, machinery, crops, equipment, cars, trucks, livestock, hogs, cattle and in fact, all personal property except household effects which the parties have divided.
2. The value of all such personal property including bank accounts as found by the Master and/or the Court to be owned by the plaintiff on the 5th day of December, 1971.
3. The amount of any indebtedness, if any existed against said property.
The Clerk and Master will give credit to the plaintiff for the sum of $2,786.77.
It is further ordered, adjudged and decreed by the Court that plaintiff shall pay over to Brenda B. Perritt, one-half of the value of the personal property as so found by the Clerk and Master, after giving the proper credits and after the deduction of costs incident to the reference and the plaintiff is directed to pay the defendant said sum in cash.”

The defendant-appellant contended in the Court below and in this Court that the plaintiff owned more personal property than the Clerk and Master reported him as owning at the time of separation and the defendant denied that the plaintiff owed his father any indebtedness on the 1965 automobile and the 1962 Ford tractor as reported by the Clerk and Master. The Ford tractor cost $2,500.00 in 1962 when plaintiff was in high school. The 1965 Chevrolet was bought new in the fall of 1964 after plaintiff graduated from high school but before he married. The Chevrolet cost $2,800.00.

For convenience we copy assignments of error verbatim from defendant’s brief as follows:

“I. Both the Master and the Chancellor have failed to find and include the value of the Chevrolet car owned by plaintiff. (Tr. B. E. Vol. I, pgs. 67, 68, 69)
Both the Master and the Chancellor should have found this car to have a value of $600.00 and should have included this value in the total assets of the plaintiff.
II. The Court erred in failing to find and include the value of a combine and a planter owned by the plaintiff, the combine having a value of $4500.00 and the planter a value of $500.00.
III. The Court erred in finding that the plaintiff and his father each owned one-half interest in the following:
1 190-T Allis Chalmer tractor
1 6 bottom Massey Ferguson plow
1 Allis Chalmer 22 12 Disk
1 1965 Chevrolet 2 ton truck
1 4 row cultivator
The Court should have found said equipment to be owned by the plaintiff as the uncontradicted evidence shows said property and each and every item thereof was purchased by plaintiff, paid for by him with bills of sale and/or invoices and a bank statement showing plaintiff’s purchase thereof and the admission of plaintiff that the truck was titled in his name and that he depreciated the equipment and truck on his tax return.
IV. The Court erred in holding that James R. Perritt, the plaintiff owed his father $2,000.00 on a Ford tractor and $2,800.00 on the Chevrolet automobile.
V. The Clerk and Master and the Court erred in sustaining plaintiff’s objection to the defendant’s offer to introduce the bank records of plaintiff’s father. (B. E. Vol. II, pgs. 217, 218, 219, 220).
VI. The Clerk and Master and the Court erred in sustaining plaintiff’s objection to defendant’s offer to introduce the income tax records of plaintiff’s father, James C. (Bill) Perritt. (B. E. Vol. I, pgs. 118, 119).”

With reference to assignment of error No. I the parties agreed during the reference that the defendant should have the 1965 Chevrolet automobile valued at $600.00. For this reason the Clerk and Master failed to include the same in her report. Upon remand of this cause as hereinafter provided the value of the Chevrolet automobile will be included as part of plaintiff’s property and, of course, the defendant will be charged with an additional $600.00 for the purchase price. Thus, assignment of error No. I is sustained.

As to assignments of error II and III, these facts are undisputed: Plaintiff purchased the Allis Chalmers 190 tractor from Paschal’s Equipment Sales on or about December 5, 1970, and gave a check on his bank account in the amount of $6,251.90 plus a trade-in. The total purchase price of the tractor was $8,000.00. Plaintiff bought the John Deere planter on or about March 4,1971, with a check for $500.00 payable to Pug Vickers of Huntingdon, Tennessee. Plaintiff purchased the Massey-Ferguson combine from a dealer on or about July 23, 1971, giving a check on his bank account for the purchase price of $4,500.00. Plaintiff bought the two-ton Chevrolet truck on or about September 4, 1971, giving a check on his bank account in the amount of $2,200.00.

Title to all of these vehicles and farming tools was taken in the name of the plaintiff. Plaintiff showed himself as sole owner of them on his federal income tax returns and took depreciation thereon as owner. Plaintiff testified that the combine and planter were not his property but were bought by him for his father and that he paid for the same with his check merely as an accommodation to his father who reimbursed him the next day. The plaintiff stated that his father paid him in cash; that the plaintiff gave his father no receipt; and that no written evidence of the transfer of title passed between the parties.

Plaintiff also testified that before the separation he sold his father a one-half interest in the Allis Chalmers 190 tractor, six-bottom plow, disc, two-ton truck and four-row cultivator all of which plaintiff had purchased with his personal funds; that the father paid for these one-half interests in cash without any written evidence of the transfer of title passing between the parties.

Plaintiff and his father testified that after the separation on December 5, 1971, plaintiff sold his father all his property except the 1965 Chevrolet which sale included plaintiff’s interest in hogs and corn, two tractors, two trucks, and other farm tools and equipment. This was on December 10, 1971. The father admitted that he expected to have to deal with defendant as to her interest in said property. The plaintiff said he sold his remaining interest in the Allis Chalmers 190 tractor, two-ton truck, planter and disc for one-half what his father paid for the first one-half.

The plaintiff made no explanation as to what became of the $9,000.00 or $10,000.00 which he said his father paid him by way of reimbursement and purchase price except the general statement that he used the funds for farming. Neither the plaintiff’s bank ledger sheet nor his federal income tax report gave any evidence of these transactions.

The plaintiff’s father corroborated the testimony of the plaintiff with the same general statements and the father offered no written evidence to corroborate his own testimony. When the defendant sought to introduce copies of the father’s bank statement and federal income tax return, the Clerk and Master sustained objections from the plaintiff’s attorney. The documents were never admitted into evidence before the Clerk and Master or before the Chancellor. The plaintiff’s father did not testify as to the source of the cash funds with which he reimbursed his son for the combine and planter and for the purchase of the one-half interest in the tractor, truck, breaking plow, etc.

With reference to assignment of error No. IV, the Clerk and Master found that the plaintiff owed his father $2,800.00 original purchase price on the 1965 Chevrolet automobile and $2,000.00 on the 1962 Ford tractor after plaintiff took credit for $500.00 for sale of the 1962 Ford tractor to his father. No demand was ever made by the father upon the son from 1962 to the date of the separation for payment of either amount. Plaintiff paid his father $4,800.00 immediately after the separation even though the father did not ask him for payment.

The father said he told the boy he was going to help him get a car and that if the boy ever repaid him for it, it would be all right and if he didn’t, it would be all right, that he never asked him for repayment and did not intend to ask him for repayment either of the tractor or the car but that after the separation and lawsuit, his son came to him and offered to pay $2,800.00 for the car and $2,500.00 for the tractor. The elder Perritt said he bought the 801 tractor back for $500.00 and the son paid $2,000.00 in cash on the remainder of the $2,500.00 purchase price of the tractor. He had never had a note on either the tractor or the Chevrolet automobile. The father had used both the Chevrolet and the Ford tractor along with the son though both vehicles were titled in the son’s name. On December 10, 1971, the father issued the son the following receipt:

“Dec. 10, 1971
Received of James Perritt $4800. for what he owes me in the past in full to date
J. C. Perritt”

The Clerk and Master put a value of $6,550.00 on the tractor, the six-bottom plow, the disc, the four-row cultivator, and the two-ton truck and reported that plaintiff was the owner of only one-half interest in said equipment at the time of the separation and his father was the owner of the other one-half. The Clerk and Master found that the father was the sole owner of the combine and planter.

Defendant filed exceptions to the report of the Clerk and Master and upon a hearing before the Chancellor the Clerk and Master’s report was confirmed without change. This Court has no authority to review a concurrent finding of fact by the Clerk and Master and the Chancellor where there is any material evidence to support such finding. Gibson’s Suits in Chancery, Vol. 1, Section 663, 5th Edition; Hunt v. Temco, Inc. (1969), 61 Tenn.App. 35, 452 S.W.2d 879; Ferrell v. Elrod (1971), 63 Tenn.App. 129, 469 S.W.2d 678. The testimony of plaintiff and his father constitute material evidence as to the father’s ownership of the equipment. Therefore, assignments of error II and III are respectfully overruled; however, for reasons hereinafter set out, the Chancellor’s decree must be reversed and the cause remanded for a new trial.

Assignment of error No. IV relating to the indebtedness of $2,800.00 on the 1965 Chevrolet and $2,500.00 on the 801 tractor purchased in 1962 is sustained. Apparently, the 1965 Chevrolet automobile which the elder Perritt purchased for his son in 1964 for $2,800.00 is the same Chevrolet that the parties have agreed that the defendant have under the property settlement at a price of $600.00. After the separation, the plaintiff said he sold the 801 Ford tractor which cost $2,500.00 to his father for $500.00 leaving a balance of $2,000.00 debt on the tractor due and owing by the plaintiff to his father. This $2,000.00 plus $2,800.00 purchase price on the 1965 Chevrolet made up the $4,800.00 debt found by the Clerk and Master due and owing to the elder Perritt.

The language of the property settlement and of the decree provides for a reference by the Clerk and Master as to “indebtedness against the property.” We construe such language to refer to a lien, either equitable or legal, against the personal property owned by the plaintiff at the time of the separation which, of course, included the 1965 Chevrolet and the 801 Ford tractor. The testimony of Mr. Perritt, Sr. shows clearly that he did not retain any sort of lien against the 1962 801 Ford tractor or the 1965 Chevrolet automobile. He testified that if the son never paid him back, it would be all right. Such testimony completely negates a retention of any sort of' lien by the father against the 801 Ford tractor and against the 1965 Chevrolet.

Even if it be conceded that the son did owe his father $2,800.00 for the purchase price of the Chevrolet and $2,500.00 for the purchase price of the tractor, such indebtedness is not outstanding “against the property” because no sort of lien was retained by the father on said property when he bought the 1965 Chevrolet and the 1962 Ford tractor for his son. It would appear, therefore, that the son, the plaintiff herein, is not entitled to a reduction in the amount of the value of the property owned by him at the time of separation because of such $2,800.00 and $2,000.00 indebtedness. However, since we are reversing for a new trial, we simply set aside the Chancellor’s decree affirming the report of the Clerk and Master regarding the $2,800.00 indebtedness and the $2,000.00 indebtedness to the father without prejudice to either of the parties to present new evidence and/or additional defenses or theories of their case regarding said indebtedness and/or liens upon the new trial. It would appear that the defendant stands in the position of a judgment creditor of the plaintiff in the instant case and as such she has the legal right to make any defenses against the claims of the father as her former husband, the plaintiff, could make, even to the extent of pleading the statute of limitations under some circumstances. Robertson v. Wade, 17 Tenn.App. 457, 465, 68 S.W.2d 487; 51 Am.Jur.2d, Section 396; 71 A.L.R.2d 1049, 1054.

Assignments of error V and VI insist that His Honor the Chancellor erred in sustaining the action of the Clerk and Master in refusing to admit in evidence bank records and tax returns of the father. In December, 1970, the plaintiff had a bank account of $15,500.00. During the year he had spent about $13,000.00 for equipment. At the time of the separation on December 5, 1971, plaintiff’s bank account was only $8,900.00.

We think the defendant’s attorney was entitled to cross-examine the plaintiff’s father concerning the father’s bank account and income tax returns.

Acts connected with a transfer different from the usual course of such transactions when bona fide are badges of fraud. Gibson’s Suits in Chancery, Section 1057, subparagraph 11. Admittedly, the plaintiff, who paid for the property in question, used the same, had legal title to the same and took full depreciation on said property on his federal income tax return. Such facts are contradictory to his testimony that he was only the owner of one-half interest in some of the property and had no interest in the $4,500.00 combine and planter. Two persons cannot exclusively own the same thing (duo non possunt in solido unam rem possidere). Gibson’s Suits in Chancery, Vol. 1, Section 74, page 92.

The father was vague as to the source of the cash money which he allegedly paid his son for the purchase price of the one-half interest in the farm equipment and reimbursement for the combine and planter. Fraus latet in generalibus (fraud lurks in general expressions). The refusal of the Clerk and Master to permit the defendant to examine the father’s bank records and income tax returns insofar as they related to the transactions between the father and the son and to cross-examine the father regarding the same constituted reversible error.

“. . . Courts of Equity do not restrict themselves by the same rigid rules that Courts of Law do, in the investigation of fraud, and in the evidence and proofs required to establish it.

“Fraud assumes many shapes, disguises and subterfuges, and is generally so secretly hatched that it can only be detected by a consideration of facts and circumstances, which are frequently trivial, remote and disconnected, and which cannot be interpreted without bringing them together, and contemplating them all in one view. In order to do this it is necessary to pick one fact or circumstance here, another there, and a third yonder, until the collection is complete. Each detached piece of evidence is not, therefore, to be rejected when offered, because apparently trivial. A wide latitude of evidence is allowed; and if a fact or circumstance relates directly, or indirectly, to the transaction, it is admissible, however weak or slight it may be, its relevance depending, not upon its weight or force, but upon its bearing or tendency.” Gibson’s Suits in Chancery, Vol. 1, Section 456, page 520.

Assignments of error V and VI are, therefore, sustained.

Exceptions to a Master’s report are in the nature of a motion for a new trial. Gibson’s Suits in Chancery, Vol. 1, Section 663. The decree of the lower Court confirming the report of the Clerk and Master is set aside. The cause will be remanded to the lower Court for a new trial on all issues relating to the property of plaintiff and his indebtednesses, if any. The costs of this appeal are taxed to the plaintiff-appellee.

MATHERNE and NEARN, JJ., concur.


author: WALKER, Justice.

text:
    WOODS EXPLORATION AND PRODUCING COMPANY, INC., et al., Petitioners, v. ARKLA EQUIPMENT COMPANY, Respondent.
    No. B-5160.
    Supreme Court of Texas.
    July 23, 1975.

      Morris L. Pepper, Houston, for petitioners.
    Butler, Binion, Rice, Cook & Knapp, Maynard A. Powell, Houston, for respondent.
   WALKER, Justice.

On the principal question to be decided here, we hold that the clerk’s certificate showing that a deposit has been made in lieu of an appeal bond may, when warranted by the facts, be amended to show that the deposit was made for the benefit of parties not named in the original certificate.

The suit was brought by Arkla Equipment Company against Woods Exploration and Producing Company, Inc. (Exploration), Eastern Pipeline Company (Eastern), and Stanley C. Woods to recover on two promissory notes executed by Exploration and Eastern and partially guaranteed by Stanley C. Woods. The trial court rendered summary judgment in favor of plaintiff against Exploration and Eastern for the unpaid principal, interest and attorney’s fees on the notes and against Stanley C. Woods in accordance with his partial guaranty. The Court of Civil Appeals concluded: (1) that neither Exploration nor Eastern had appealed, (2) that there is a question of fact with respect to attorney’s fees, and (3) that there is no merit in the other attacks made on the summary judgment. The claim for attorney’s fees against Stanley C. Woods was severed, and as to that part of the case the judgment of the trial court was reversed and the cause was remanded for trial. As to the remainder of the case, the judgment of the trial court was affirmed. 525 S.W.2d 50.

All three defendants gave timely notice of appeal. Some three weeks after the judgment was rendered, counsel for all defendants deposited with the district clerk in lieu of an appeal bond a cashier’s check for $250.00 furnished by Stanley C. Woods. Neither the check nor the letter of transmittal identified the parties making the deposit, but the check evidently indicated that it had been purchased by Stanley C. Woods. In accordance with the provisions of Rule 354, the clerk issued and filed among the papers in the case his certificate showing that the deposit had been made. The certificate, which was included in the transcript, states that the deposit was made by Stanley C. Woods and contains no reference to either of the other defendants. With the record in this condition, the Court of Civil Appeals properly concluded that only Stanley C. Woods had perfected an appeal.

On motion for rehearing in the Court of Civil Appeals, defendants filed the affidavit of Stanley C. Woods stating that the deposit was made for the benefit, and to perfect the appeal, of all three defendants. The affidavit further states that Stanley C. Woods is the President of both Exploration and Eastern, but nothing was filed by the two corporate defendants in either the trial court or the Court of Civil Appeals to confirm that the deposit was made to perfect their appeal and to cover costs incurred by them. The motion for rehearing was overruled.

Defendants have now filed with the clerk of our Court, in response to a suggestion made during oral argument here, a certified copy of an amended certificate of the district clerk showing that a cash deposit of $250.00 has been made by Exploration, Eastern and Stanley C. Woods. The amended certificate is dated July 11, 1975, more than a year after rendition of the summary judgment.

Rule 430, T.R.C.P., provides that when there is a defect of substance or form in an appeal or writ of error bond, then on motion to dismiss for such defect the appellate court may allow the same to be amended by filing a new bond. This rule is liberally construed and applied to carry out its intended purpose. If the appellant files any sort of instrument that is intended to be a bond and to invoke appellate jurisdiction, the instrument may, on timely request, be amended to cure any defect of either form or substance. See United Ass’n of Journeymen, etc. v. Borden, 160 Tex. 203, 328 S.W.2d 739; Grogan Mfg. Co. v. Lane, 140 Tex. 507, 169 S.W.2d 141. A bond filed for the purpose of perfecting an appeal may be amended even though it is not signed by the party appealing and does not show his name as principal. Owen v. Brown, Tex.Sup., 447 S.W.2d 883.

Although the Rules of Civil Procedure do not expressly provide for amendment of the clerk’s certificate showing that a cash deposit has been made in lieu of an appeal bond, it is our opinion that a party who makes a deposit for the purpose of invoking appellate jurisdiction should be entitled to correct mistakes in somewhat the same manner as an appellate who has filed a defective appeal bond. It appears from the record here that the original deposit was made for the benefit of all three defendants, and the defendants have now filed an amended certificate showing that the clerk holds a proper deposit made by them. They should have requested leave of the Court of Civil Appeals to file an amended certificate there when the intermediate court held that neither Exploration nor Eastern had perfected an appeal. On the other hand, this is a new question and the proper procedure is not spelled out in the Rules of Civil Procedure. Under the provisions of Rule 481, T.R.C.P., an appeal bond may be amended in the Supreme Court under the same circumstances and on the same terms as in the Court of Civil Appeals under Rule 430. By the express terms of Rule 437 and 504, moreover, the Courts of Civil Appeals and the Supreme Court are admonished not to affirm or reverse a judgment or dismiss an appeal or writ of error for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend the same. We allow the clerk’s certificate to be amended and hold that an appeal was perfected by all three defendants.

Turning to the merits, the two notes provide for “reasonable attorney’s fees (not to exceed ten per cent (10%) of the amount then owing) and expenses of collection incurred.” The Court of Civil Appeals correctly held that the amount of “reasonable” attorney’s fees has not been conclusively established. As a matter of fact, no proof whatsoever was offered with respect to that issue.

There is no merit in defendant’s other contentions. The affidavit supporting the motion for summary judgment states that the affiant is over 21 years of age, of sound mind, has never been convicted of a crime, has personal knowledge of every statement made in the affidavit, and is fully competent to testify to the matters stated. Defendants insist that the affidavit is fatally defective and will not support a summary judgment since it does not disclose the affiant’s relationship, if any, to the defendants or how he acquired personal knowledge of the facts stated. We do not agree. In the absence of an exception or objection, it was enough for the affidavit to state that the affiant did have personal knowledge. If defendants had any doubt concerning the accuracy of this statement, they should have excepted to the affidavit at or prior to the hearing. Youngstown Sheet & Tube Co. v. Penn, Tex.Sup., 363 S.W.2d 230.

The practice of ordering a partial remand for determination of reasonable attorney’s fees only may not be entirely consistent with some of our decisions under Rules 434 and 503, T.R.C.P. See Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375. It has been done before, however, and we now do it again. See International Security Life Ins. Co. v. Finck, Tex.Sup., 496 S.W.2d 544.

The judgment of the Court of Civil Appeals is modified to provide that plaintiff’s claim for attorney’s fees against Exploration, Eastern and Stanley C. Woods is severed, and as to that part of the case the judgment of the trial court is reversed and the cause is remanded to the district court. As so modified, the judgment of the Court of Civil Appeals is affirmed.

      . Texas Rules of Civil Procedure.