author: MAUS, Judge.

text:
    Bill SILLIMAN and Violet Silliman, his wife, and Robert L. Lewis, Plaintiffs-Appellants-Respondents, v. Jerry C. CHRISMAN and Helen L. Chrisman, his wife, Defendants-Respondents-Appellants.
    Nos. 11012, 11016.
    Missouri Court of Appeals, Southern District, Division Three.
    July 5, 1979.

      James R. Robison, Robison & Blanton, Dwight Crader, Sikeston, for plaintiffs-appellants-respondents.
    Joe Welborn, Briney, Welborn & Spain, Bloomfield, for defendants-respondents-appellants.
   MAUS, Judge.

This is a distinctive action for specific performance. It arises from a lease of, with an option to purchase, an 850-acre farm. The plaintiffs are the Lessees-Op-tionees Bill Silliman and Violet Silliman, his wife, (herein referred to as Sillimans) and their assignee Robert L. Lewis (herein referred to as Lewis). The defendants are Lessors-Optionors Jerry C. Chrisman and Helen L. Chrisman, his wife, (hereinafter referred to as defendants Chrisman). The action is distinctive because defendants Chrisman owned only an undivided one-half interest in 1700 acres of which the 850-aere farm was called the north half.

In this court tried case no one requested findings of fact and none were made. No opinion containing the grounds for the decision was given. That being so, all fact issues shall be considered as having been determined in accordance with the result reached. Stringer v. Reed, 544 S.W.2d 69 (Mo.App.1976). The judgment is to be affirmed if it can be sustained upon any legal basis, Stewart v. Zuellig, 336 S.W.2d 399 (Mo.1960), and unless “there is no substantial evidence to support it, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

So reviewing the evidence, the following is an outline of the salient facts. On February 1, 1974, title to the 1700-acre tract was conveyed to Jerry C. Chrisman and Helen L. Chrisman, his wife, and Howard Chris-man (Uncle of Jerry Chrisman) and Lollie Chrisman, his wife. On January 31, 1975, Howard and Lollie Chrisman conveyed their interest in a 2.62-acre tract, which tract is a part of the north 850 acres, to Jerry and Helen Chrisman. A house, tool shed and grain bin were located on this 2.62-acre tract. In the fall of 1975 Jerry C. Chrisman decided to quit farming and return to his job on the railroad. Sometime that fall Jerry and Howard verbally agreed upon a division whereby a tract called the north 850 acres would belong to Jerry and the south 850 acres to Howard. There is no evidence that Lollie Chrisman approved or even knew of this agreement. Helen Chris-man was shown to have been present when this verbal agreement was mentioned to attorney Mitchell.

On November 21,1975, Jerry and his wife granted to A. B. Smith, Jr., an option expiring January 20, 1976, to purchase the north 850 acres for $535,000. This option was not exercised. The property was listed for sale with broker Felix Hampton. On February 5, 1976, Hampton brought Bill Silliman (who had bought and sold farms) to Jerry Chrisman as a prospective purchaser. The three, with Silliman’s brother, toured the farm. An agreement was reached for a lease with an option to purchase. The group then went to an attorney who drafted all of Bill Silliman’s contracts on real estate for the preparation of the lease-option. The instrument was signed the following day.

The lease was for a period from February 6, 1976, to December 31, 1976. The expressed rental was $40,000 with $20,000 paid on execution and $20,000 to be paid on November 1, 1976. The option price was $500,000, with the rental to be applied on that price. The option was to be exercised on or before November 1,1976, and if exercised, the sale consummated on January 2, 1977. Upon consummation, one half of the indebtedness then in the amount of $404,-800 secured by a deed of trust on the 1700 acres was to be assumed. An additional $60,000 was to be paid in cash and a note secured by a second deed of trust given for the balance.

The most serious factual dispute concerned whether or not Bill Silliman at the time of the execution of the lease-option knew that Jerry and Helen Chrisman owned only an undivided one-half interest in the north 850 acres. There was evidence that while viewing the property Jerry mentioned that Howard had a half interest in the 1700 acres and they were going to divide it. Jerry showed Bill Silliman where the line was going to be and told him the house was already his. The attorney upon inquiry was told by Jerry that he wasn’t sure how title was held; that he and Howard had agreed upon a division and it wasn’t necessary for anyone to sign but Jerry and his wife. The evidence clearly supports the conclusion evidently reached by the trial court: that all parties to the instrument knew that Jerry and his wife owned only an undivided one-half interest, but, apparently relying upon a verbal agreement with Howard, they nevertheless agreed to the lease and option for the north 850-acre tract.

The day after the instrument was signed Jerry told his uncle he had sold the 850-acre tract. His uncle without knowing the price said he made a mistake. Two or three times Jerry asked for a deed but each time his uncle said no.

Some three or four weeks later Bill Silli-man talked to Howard about renting the south 850 acres. Howard told him that he had talked with Jerry about splitting the farm, but that he would not sign to sell the farm as he would rather buy farm land. As Bill Silliman put it, “I found out it was in a mess.”

Nevertheless, by a letter mailed October 14, 1976, Bill and Violet Silliman exercised the option. Then on October 22, 1976, they executed an assignment (the terms of which will be discussed later) to Lewis. Lewis had been told of the status of the title. Lewis paid the second rental payment of $20,000 to Jerry Chrisman.

On December 30,1976, Bill Silliman, Lewis and their attorney went to the office of Jerry Chrisman’s attorney. They tendered payment of the balance of the purchase price. Silliman and Lewis offered to take an undivided one-half interest in the 1700 acres. In response, they were offered a deed of an undivided one-half interest in the north 850 acres.

In their petition plaintiffs Silliman and Lewis alleged the execution of the lease-option, the assignment, the two $20,000 rental payments, the exercise of the option, tender of performance and demand for a deed as required in the lease-option. They prayed for specific performance or in lieu thereof damages and for general relief. The trial court denied specific performance but awarded plaintiffs Sillimans $76,500 for damages for breach of contract. Lewis was denied recovery. Cross-appeals were taken. The plaintiffs assert the trial court erred (1) in not ordering the defendants to convey an undivided one-half interest in the 1700 acres; (2) in not ordering the defendants to convey an undivided one-half interest in the north 850 acres with an award of damages for failure to convey full title; (3) in denying recovery to Lewis; and (4) excluding the testimony of Lewis as to the value of the property in question. The defendants assert error (1) in awarding damages to Sillimans because of their assignment to Lewis; and (2) the insufficiency of the evidence to support the award of damages.

In asserting their claim to an undivided one-half interest in 1700 acres plaintiffs cite §§ 359 and 368, Restatement of Contracts, dealing with decrees not identical with the performance called for by a contract. They argue that if the court awarded to them an undivided one-half interest in the 1700 acres the defendants would be in the same position as if the division had been made and defendants performed the contract. Plaintiffs’ argument is ingenious. It is true that in some circumstances and to some extent equity will grant specific performance not identical with the terms of the contract, most often part performance with compensation. 81A C.J.S. Specific Performance § 191.

However, it is a fundamental maxim that “a court cannot make a contract for the parties and then decree its performance.” Kerrick v. Schoenberg, 328 S.W.2d 595, 599 (Mo.1959). Also, Blankenship v. Porter, 479 S.W.2d 409 (Mo.1972). 71 Am.Jur.2d Specific Performance § 211. We have been cited to, and have found, no authority that a court of equity may in an action for specific performance decree satisfaction of a contract by directing the conveyance of real property other than that described in the contract. The authority we have found is to the contrary. We suspect the paucity of authority is because of the fundamental soundness of the maxim quoted above. Each tract of real property is regarded as unique. This is the recognized basis for decreeing specific performance of a contract to convey real property. It would be anomalous for equity to assume jurisdiction of a contract to convey a tract of real property because it was unique and then order satisfaction of that contract by the conveyance of real property not described in the contract. We hold the trial court did not err in not directing a conveyance of an undivided one-half interest in the 1700-acre tract.

The plaintiffs then assert that if they were not entitled to a conveyance of an undivided one-half interest in the 1700 acres, they should have been awarded an undivided one-half interest in the described 850 acres plus damages for failure to convey the other half. It is established that the plaintiffs, even though they knew of the deficiency of defendants’ title, could have, without claiming an abatement of the purchase price, “waive such requirement and take what title the seller has”. Wilkinson v. Vaughn, 419 S.W.2d 1, 7 (Mo.1967). Also see Torelle v. Templeman, 94 Mont. 149, 21 P.2d 60 (1933).

Their right to take that title and insist upon an abatement of the purchase price is not so established. It is a recognized principle that if a vendee does not have notice of the deficiency of the vendor’s title, either as to quantity or quality, to the real property he has agreed to convey, the vendee may under some circumstances have specific performance to the extent the vendor can perform, with an abatement of the purchase price. On the other hand when the vendee at the time the contract is made has notice of that deficiency in title, the decisions most often deny a conveyance of that title if the vendee also demands an abatement of the purchase price. The bases for such decisions vary, ranging from the maxim that equity will not make a contract for the parties to the discretionary nature of the remedy of specific performance. The latter is founded upon the proposition, in the nature of the clean hands doctrine, that a vendee cannot invoke the aid of equity when he knew the vendor lacked the ability to perform the contract. While the bases assigned are not altogether satisfying, the overwhelming weight of authority is that in the absence of compelling circumstances to the contrary, a vendee with notice of his vendor’s deficiency of title may not insist upon specific performance with an abatement of the purchase price. We are aware of the dictum to the contrary in regard to a vendee’s knowledge of the marital status of a vendor whose wife did not sign in Tebeau v. Ridge. We are also aware of such cases as English v. Jones, 154 Tex. 132, 274 S.W.2d 666 (1955) in which the vendor had the ability to acquire title but declined to do so. We need not, and do not, decide under what circumstances this limitation is applicable. The factors that may be considered are many. For example, the conveyance of the defendants’ one-half interest in the north 850 acres would force upon Howard and Lollie Chrisman separate co-tenanies in two 850-aere tracts rather than one co-tenancy in one 1700-acre tract. We do decide that under the circumstances of this case, particularly in view of the procedural aspect hereafter discussed, the trial court did not abuse its discretion in not awarding the plaintiffs an undivided one-half interest in the north 850 acres, plus damages.

Irrespective of the discussion above, there is a distinct compelling reason why the action of the trial court was correct. Under most circumstances, whether or not a vendee will accept a materially deficient title of his vendor, with or without abatement, is at the election of the vendee. A vendor may not force such a title on the vendee. Such an election by a vendee is more an election of rights than an election of remedies. A vendee’s election should be affirmatively made and pleaded.

In this case there was no evidence of such an election before the trial court. There was evidence that Mr. Lewis and Bill Silliman on December 30, 1976, offered to take a deed to an undivided one-half interest in the 1700 acres, but they did not express such a desire in their testimony. There was no evidence of an election to accept a conveyance of an undivided one-half interest with abatement. Even though plaintiffs had knowledge of the deficiency before suit, the petition did not plead, alternatively or otherwise, an election. The prayer was for specific performance of the contract as written or in lieu thereof for damages. The power of the court was limited to the issues framed by the pleadings and any other issues tried by consent. In the absence of an affirmative election, the power of the court was not expanded to the extent of such part performance by the prayer for general relief.

In this case the trial court was faced with the issues of specific performance of the contract as written, or in lieu thereof, damages. Since such specific performance was impossible it was correctly denied and the alternative prayer granted.

The plaintiffs allege error in that damages were not awarded to Lewis because the Sillimans had assigned their interests under the contract to him. Defendants allege error in awarding damages to Silli-mans for the same reason. It is true the interests of Sillimans were assignable and that generally speaking an assignee may enforce the contract if his assignors could have done so. Michaud v. Ruch, 545 S.W.2d 703 (Mo.App.1976). But, both could not recover for the failure to convey.

“The operation and effect of an assignment may be limited by exceptions, reservations, conditions, or restrictions contained therein, so long as they do not violate statutory provisions or general rules of policy.” 6A C.J.S. Assignments § 78, p. 722. The assignment in question provided, “[i]n the event Lewis, for any reason, is unable to obtain title to said 850 acres [sic] tract or title to an undivided one-half interest in the said 1700 acres [sic] tract, this agreement is null and void and of no effect,” and that the note given as consideration should be returned. Lewis did not obtain such a title and damages were properly awarded to Sil-limans.

In connection with the issue of damages, the plaintiffs allege error in excluding an opinion of value of Lewis. By profession he is an engineer and county surveyor. He bought farm land and owned farm land, including one in Stoddard County. Plaintiffs urge that he was qualified to testify because he owned an interest in the land in question. Not always is an owner competent. Shelby County R-IV School District v. Herman, 392 S.W.2d 609 (Mo.1965). An owner of property is permitted to testify as to its value because of his presumed familiarity with that property. At the most Lewis had a conditional interest in a contract concerning the property. His familiarity with this property as demonstrated by the record was that he and his employees planted 260 acres of wheat in the fall of 1976 and cultivated the land in the spring of 1977. He did not state he was familiar with the values of property in Stoddard County. The qualification of Lewis was “largely, but not wholly, for determination by the trial court whose discretion ordinarily will not be overruled unless abused or exercised in clear error of law”. State ex rel. State Highway Commission v. Heim, 483 S.W.2d 410, 414 (Mo.App.1972). The trial court did not abuse its discretion.

The defendants assert that the award of damages is not supported by competent evidence because the plaintiffs’ experts considered sales of farms 20, 10 and 5 miles distant as comparable sales but did not consider sales of adjoining farms as comparable. The experts offered by the plaintiffs were real estate brokers of long experience. What sales they considered to be comparable and not to be comparable and the reasons therefor was a subject thoroughly developed by counsel and by the trial court. This evidence went to the weight to be given to their opinions, and was obviously so considered by the trial court. But, it does not cause those opinions, given without objection or motion to strike, State ex rel. State Highway Commission v. Heim, supra, not to be substantial evidence properly considered by the trial court.

The defendants then suggest the plaintiffs’ recovery should be limited to the amount paid and any special damages. We do not agree. “It is not unlawful for a person to contract to sell and convey something he does not own but expects to acquire, and, if he unqualifiedly undertakes to do that which later he finds he cannot perform, he should suffer the liability the law imposes upon the contract breaker.” Robinson v. Pattee, 359 Mo. 584, 588, 222 S.W.2d 786, 788 (1949). That is the loss of the bargain. Dunning v. Alfred H. Mayer Company, 483 S.W.2d 423 (Mo.App.1972).

Lastly, the plaintiffs complain the damages are inadequate and the defendants complain they are excessive. The opinions as to the value to be used in the calculation of damages ranged from $800 to $591 per acre. The determination of the trial court was within the range of the evidence and will not be disturbed on appeal. State ex rel. State Highway Commission v. Bopp, 516 S.W.2d 38 (Mo.App.1974); Letsch v. Pickworth, 559 S.W.2d 77 (Mo.App.1977).

The judgment is affirmed.

BILLINGS, P. J., FLANIGAN, C. J., and GREENE, J., concur.

      . Adams v. Porter, 129 La. 1085, 57 So. 526 (1912); Halvorson v. Stecher, 157 Wash. 257, 288 P. 925 (1930); Cashman v. Bean, 226 Mass. 198, 115 N.E. 574 (1917).

      . Wilkinson v. Vaughn, 419 S.W.2d 1 (Mo.1967).

      . 81 C.J.S. Specific Performance § 23.

      . In re Estate of Hayhurst, 478 P.2d 343 (Okl.1970); Schneider v. Davis, 194 Md. 316, 71 A.2d 32 (1950); Bellamah v. Schmider, 68 N.M. 247, 360 P.2d 656 (1961). Decisions to that effect from 17 states are cited in 81 C.J.S. Specific Performance § 23, p. 748. “The general doctrine of the right of the vendee to specific performance with an abatement from the purchase price is qualified by an important limitation — that it cannot be invoked by a purchaser who, at the time of the making of the contract, had notice of the fact that the vendor had a limited or undivided interest in the land, or that his title was defective, or the quality deficient, or that he had title to a part only of the land sold.” 71 Am.Jur.2d Specific Performance § 131, p. 169. Also see Williston on Contracts, § 1436 (3rd ed. 1968); J. Pomeroy & J. Mann, Pomeroy’s Specific Performance of Contracts § 442 (3rd ed. 1926). Contra, Wittick v. Miles, 274 Or. 1, 545 P.2d 121 (banc 1976).

      . 261 Mo. 547, 170 S.W. 871, L.R.A. 1915C, 367 (banc 1915), overruling Aiple-Hemmelmann Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480, 14 Ann.Cas. 652 (banc 1908). An abatement was allowed for the interest of a wife who was not a party to an oral contract made by her husband to convey to their son. Scheerer v. Scheerer, 287 Mo. 92, 229 S.W. 192 (1921).

      . 81 C.J.S. Specific Performance § 23; 71 Am. Jur.2d Specific Performance §§ 129, 132.

      .25 Am.Jur.2d Election of Remedies § 7.

      . Branner v. Klaber, 330 Mo. 306, 49 S.W.2d 169 (1932).

      . “The rule that under a general prayer for relief in an equity suit a party may have any relief to which he may show himself entitled is limited to relief founded on and consistent with the allegations set out in the petition.” La Presto v. La Presto, 308 S.W.2d 724, 726 (Mo.1958). Also see Kemp v. Woods, 363 Mo. 427, 251 S.W.2d 684 (1952); Stickle v. Link, 511 S.W.2d 848 (Mo.1974); Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976).

      . Tinnon v. Tanksley, 408 S.W.2d 98 (Mo.1966).


source: Caselaw Access Project

author: BILLINGS, Presiding Judge.

license: Public Domain

text:
    Dwain L. GARDNER, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 10888.
    Missouri Court of Appeals, Southern District, Division Two.
    July 9, 1979.
    Loren R. Honecker, Springfield, for mov-ant-appellant.
    John D. Ashcroft, Atty. Gen., Richard Thurman, Asst. Atty. Gen., Jefferson City, for respondent.
   BILLINGS, Presiding Judge.

Dwain L. Gardner’s multiple convictions for illegal sales of heroin, cocaine and a salt of amphetamine were affirmed by this court in State v. Gardner, 534 S.W.2d 284 (Mo.App.1976). Thereafter, this postconviction motion under Rule 27.26, V.A.M.R., was filed. Counsel was appointed, the motion was amended, and an evidentiary hearing conducted. The trial court made and entered findings of fact and conclusions of law denying the motion. We affirm.

The main ground advanced by movant for Rule 27.26, V.A.M.R., relief is that his trial counsel was ineffective. In support of this single issue [Jones v. State, Mo.App., 583 S.W.2d 539] the movant alleged various reasons, to-wit: failure to obtain a severance of defendant’s trial from that of a co-defendant; permitting evidence of other crimes to be injected into the trial; failure to challenge the chain of custody of certain evidence and failure to challenge the lack of qualifications of an expert witness for the state; failure to object to the unconstitutionality of the law classifying drugs; representing conflicting interests (defendant and co-defendant) which resulted in disparity of sentencing; collusion with the prosecuting attorney in failing to examine and cross-examine the co-defendant; permitting movant to waive his right to trial by jury. In addition to the foregoing, movant alleged as separate grounds a violation of the rule on witnesses, the knowing use of perjured testimony by the state, and the erroneous admission of certain trial exhibits.

The capable and experienced trial judge that presided at the evidentiary hearing considered each of the movant’s allegations in his five-page memorandum of findings and conclusions. He ruled, properly so, that trial strategy or trial tactics of counsel do not justify a charge of ineffective assistance of counsel. Further, that alleged trial errors were for consideration in the mov-ant’s direct appeal, and, that one or more thereof had in fact been considered in our affirmation of the judgment against the defendant. The court held that movant had failed to sustain his burden of proof on the grounds alleged. We have read the transcript and do not find the findings and conclusions of the trial court to be clearly erroneous.

The judgment is affirmed.

HOGAN and MAUS, JJ., and KELSO, Special Judge, concur.


author: HOGAN, Judge.

text:
    In re the MARRIAGE of Billy J. BAKER, Petitioner-Respondent, and Carol Ann Baker, Petitioner-Appellant.
    No. 10429.
    Missouri Court of Appeals, Southern District, Division Three.
    July 11, 1979.
    J. Max Price, Salem, for petitioner-appellant.
    William E. Seay, Salem, for petitioner-respondent.
   HOGAN, Judge.

Billy J. and Carol Ann Baker filed a joint petition for dissolution of their marriage, as authorized by § 452.320.1, RSMo 1978, V.A. M.S. In connection with the dissolution proceeding, the parties entered into a separation agreement as provided for by § 452.-325.1, RSMo 1978, V.A.M.S. On October 21, 1975, the Circuit Court of Crawford County called the cause for hearing. Petitioner Billy J. Baker appeared; petitioner Carol Ann Baker did not. The trial court heard evidence, found that the marriage was irretrievably broken and that the separation agreement was not unconscionable, and entered a judgment accordingly.

Thereafter, Carol Ann filed a motion to set aside the decree of dissolution. The motion is directed wholly and solely to the separation agreement. In the motion or petition .to set aside the decree, Carol Ann stated that she was “. . . in such a state of mental shock and [such] nervous condition” that she did not understand the separation agreement, and further alleged in conclusory language that the agreement was unconscionable. The parties and the trial court chose to regard the proceeding as an independent after-trial action of the combined, innominate order discussed in Staab v. Thoreson, 579 S.W.2d 414, 417 (Mo.App.1979); S_ v. S_ 490 S.W.2d 344, 349-350[2] (Mo.App.1973), and other cases. For our purposes, we need not characterize the proceeding further. It is to be borne in mind that proof of the allegations was necessary, Staab v. Thoreson, supra, 579 S.W.2d at 417, the judgment attacked clothed Billy J. with a presumption that the court had taken all steps necessary to enable it to render a valid judgment, Hendershot v. Minich, 297 S.W.2d 403, 410[17] (Mo.1957), and Carol Ann made no effort whatever to show what evidence the trial court heard when it rendered the original judgment.

The case presents issues of fact, not questions of law. For this reason, we decline to recite the record evidence in tedious detail. If one sets peripheral issues to one side, and ignores the fact that counsel for Carol Ann sought to retry the equity of the distribution of marital property, the parties’ positions can be fairly capsulized in a few sentences. Carol Ann testified she had agreed to, and had executed the separation agreement because she was “scared.” Her evidence was that Billy J. had “. threatened to tell my two kids my [former] husband killed himself and it was my fault.” Billy J. had told her “to go ahead and sign ... or else I wouldn’t have the kids.” She had known there was “going to be Court” on the day of trial, but had not known she should be there.

Billy J.’s evidence was that in August 1975, Carol Ann had suddenly “demanded a divorce,” and had said “all she wanted was a divorce.” Later, Carol Ann committed her wishes to writing. She then wrote “[a]ll I want is the children.” Billy J.’s testimony was that Carol Ann had voluntarily stayed away from the hearing. Carol Ann testified she had never been advised of the consequences attendant upon her execution of the separation agreement. Billy J. produced direct proof to the contrary.

In essence, Carol Ann sought to prove that a fraud had been perpetrated upon the court at the time the decree of dissolution was entered. The trial court concluded that she had failed to meet her burden of proof. There is no need to restate the applicable rules of law; they have been many times stated. The controlling principles on this appeal are: 1) that in a bench-tried case, the trial court is the arbiter of the facts; it may believe or disbelieve oral evidence in whole or in part, and this is true even if the evidence is uncontradicted, see, e. g., Intertherm, Inc. v. Coronet Imperial Corp., 558 S.W.2d 344, 348[3] (Mo.App.1977), and 2) a finding that the separation agreement was procured by fraud or was unconscionable necessarily involves a large measure of discretionary judgment. Cf. Wilkerson v. Wilkerson, 555 S.W.2d 689, 691[5] (Mo.App.1977). Application of these principles to the whole record convinces us that the correct result was reached. Being so convinced, we are not concerned with the reasons assigned by the trial court as a basis for its judgment. Edgar v. Fitzpatrick, 377 S.W.2d 314, 318[12] (Mo. banc 1964); Gross v. Gross, 557 S.W.2d 448, 453[10] (Mo.App.1977). Accordingly, the judgment is affirmed.

FLANIGAN, C. J., and BILLINGS, J., concur.


author: HARBISON, Justice.

text:
    Jayne Ann WOODS, Tennessee Commissioner of Revenue, Appellant-Defendant, v. George S. CAMPBELL and John P. Gaither, Co-Executors of the Estate of Nell C. Jeffords, Appellees-Plaintiffs.
    Supreme Court of Tennessee.
    July 9, 1979.
    Everett H. Falk, Deputy Atty. Gen., Nashville, for appellant-defendant; William M. Leech, Jr., Atty. Gen., of counsel.
    John P. Gaither, Phil B. Whitaker, Chattanooga, for appellees-plaintiffs.
   OPINION

HARBISON, Justice.

This action was instituted by. the Executors of the estate of Mrs. Nell C. Jeffords to recover funds paid under protest under the Tennessee Estate Tax Law, T.C.A. §§ 30-1701 et seq. The Chancellor allowed recovery, and the Commissioner of Revenue has appealed. We sustain the assignments of error, reverse the judgment below and dismiss the suit.

The case involves the interplay between the Tennessee Inheritance Tax, T.C.A. §§ 30-1601 et seq., particularly the provisions with reference to credit for taxes on previous transfers, T.C.A. § 30-1612, and the state tax credit allowed against federal estate taxes, I.R.C. § 2011, together with the Tennessee estate or “pickup” tax, T.C.A. §§ 30-1701 et seq. It arises upon undisputed facts and presents a question of first impression in this state.

The husband of decedent, Warren C. Jef-fords, died testate on February 2, 1972. He left a substantial estate, on which both federal and state death taxes were duly paid. Under the terms of his will an amount equal to one-half of his adjusted gross estate passed to his widow, Mrs. Nell C. Jef-fords, whose estate is now under administration.

Mrs. Jeffords survived her husband only slightly more than two and one-half years, her death occurring on October 18, 1974.

The gross estate of Mrs. Jeffords was appraised for tax purposes at $6,294,953.74. The Tennessee inheritance tax on her estate, absent any credit for previously paid taxes, would have been $433,362.62.

Because the bulk of her estate consisted of assets received from her deceased husband, the estate of Mrs. Jeffords was entitled to and was allowed a credit against the Tennessee inheritance tax under the provisions of T.C.A. § 30-1612. The credit amounted to $432,271.54, leaving an inheritance tax liability of only $1,091.08.

The provisions of the inheritance tax statutes allowing the credit are as follows:

“If the gross estate include property upon the transfer of which to the decedent a tax was previously and within five (5) years, imposed by this state, or property which can be definitely identified as having been received by the decedent in exchange for property upon which a tax was so imposed, a credit on account of such tax actually so previously paid shall be allowed against the tax imposed with respect to the particular property, but not to exceed the amount of tax imposed with respect to the property on the present transfer, provided, however, that the burden of identification shall be upon the person claiming such credit.
“The five (5) year period shall be computed from the date of death of the prior decedent and not from the date of payment of such tax.” T.C.A. § 30-1612.

This provision was contained in the present state inheritance tax law enacted by 1929 Tenn. Pub. Act, E.S., ch. 29. It is an integral part of that law and is codified with it. It is not, nor has it ever been, part of the Tennessee estate, or “pickup,” tax law, which was enacted in an entirely separate provision, 1929 Tenn. Pub. Act, E.S., ch. 23, and is codified separately and apart from the Inheritance Tax Law. There is no provision in the Tennessee Estate Tax Law regarding credit for inheritance taxes paid on a previous transfer. As hereinafter pointed out, the theory and purpose of the estate tax law are entirely separate and distinct from those of the inheritance tax law.

Since 1916 there has been imposed in the Internal Revenue Code a federal estate tax on property owned by citizens of the United States. Because of resentment among state governments at what was regarded as a federal intrusion into a traditional state source of revenue, since 1924 a credit has been allowed against federal estate tax obligations for death taxes paid to states on account of property taxable as part of the gross federal estate. For a history and discussion of this subject see the recent decision of the California Supreme Court in the case of Estate of Fasken, 19 Cal.3d 412, 138 Cal.Rptr. 276, 278-281, 563 P.2d 832, 834-37 (1977); see also C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes 584-89 (3d ed. 1974).

The credit allowed against the federal estate tax is authorized in I.R.C. § 2011. Its provisions are as follows:

“The tax imposed by section 2001 shall be credited with the amount of any estate, inheritance, legacy, or succession taxes actually paid to any State or the District of Columbia, in respect of any property included in the gross estate (not including any such taxes paid with respect to the estate of a person other than the decedent).” (Emphasis added.)

The amount of the credit is fixed in a schedule in the following paragraph. In the present case the maximum credit allowable to and claimed by the estate of Mrs. Jeffords for Tennessee death taxes was computed to be $429,206.85, against a gross federal estate tax liability of $2,642,438.25.

It will be noted that under the specific terms of I.R.C. § 2011, any state taxes paid with respect to the estate of a person other than the decedent are not eligible for the federal credit. Therefore death taxes paid to the State of Tennessee with respect to the estate of Mrs. Jeffords’ husband would not qualify for the federal credit. Yet they are the basis for the credit against inheritance taxes on Mrs. Jeffords’ estate under T.C.A. § 30-1612. It is this distinction which the Executors have not taken into account and which, in our opinion, is controlling.

The credit initially allowed for state taxes in the 1924 Revenue Act was increased in 1926. Because the state tax credit allowed under the federal statute often exceeded amounts actually payable to the states under existing legislation, most of the states, including Tennessee, enacted “pickup” taxes, calculated to assure the state its full share of the credit for state death taxes. As previously stated, the Tennessee Estate Tax Law was enacted in 1929. Making reference to the federal credit allowed for state death taxes, the Tennessee statute provides as follows:

“In addition to any inheritance, succession and/or estate tax or taxes imposed by the state of Tennessee under the authority of any other statute or statutes, a Tennessee estate tax is imposed for the exclusive use of the state upon the transfer of the Tennessee estate of every decedent, the amount of which Tennessee estate tax shall be equal to the extent, if any, of the excess of the credit over the aggregate of state taxes, payable by or out of the Tennessee estate of the decedent, or any part thereof; provided, however, that such Tennessee estate tax imposed shall in no case exceed the extent to which its payment will effect a saving or diminution in the amount of the federal estate tax, payable by or out of the estate of the decedent had this chapter not been enacted.” T.C.A. § 30-1702.

It is apparent that the purpose of this statute was to divert to state revenue funds which otherwise would have been payable to the United States Government under the federal estate tax law and to assure that the state received the maximum amount allowable as credit to a decedent’s estate under the federal statute.

In the present case the inheritance tax liability of Mrs. Jeffords’ estate was only $1,091.08 by reason of credit allowed for taxes previously paid upon her husband’s death. The maximum credit available to and allowed this estate against federal estate taxes was $429,206.85. Accordingly the Tennessee Department of Revenue assessed a Tennessee estate tax against the estate in the amount of the difference, $428,115.77, together with accrued interest.

The Executors denied that any Tennessee estate tax was due or that the local estate tax law had any application to decedent’s estate. Their theory was that the inheritance tax liability of the estate was actually $433,362.62 and that this tax was “paid,” partly in cash and partly by application of the credit for previous taxes. They insisted that the Tennessee inheritance tax liability exceeded the federal estate tax credit, so that the pickup tax was not activated. Basic to this contention, of course, was the claim that the Tennessee inheritance tax credit amounted to a state tax “actually paid” to the state with respect to this decedent’s estate, so as to entitle the estate to the federal tax credit under I.R.C. § 2011.

The state disagreed with the taxpayer’s contention. The taxpayer thereupon paid the Tennessee estate tax under protest. Obtaining a receipt from the state for the full amount of the combined state death taxes, the Executors then apparently claimed and were allowed maximum credit against the federal taxes under § 2011 of the Internal Revenue Code. They then filed the present suit, seeking to recover the Tennessee estate tax paid under protest, upon the theory that its exaction violated the provisions of T.C.A. § 30-1612.

The Chancellor allowed recovery, but, as we have previously stated, we are of the opinion that this conclusion was in error. We have already pointed out that the credit for taxes on prior transfers is provided for in the inheritance tax law, not in the state “pickup” taxing statute. The latter statute expressly incorporates the terms and provisions of the Internal Revenue Code. See T.C.A. § 30-1712. As quoted previously, the Internal Revenue Code allows credit against federal taxes only for state death taxes “actually paid” to any state. It does not allow credit for taxes paid with respect to the estate of any person other than the decedent. Regulations issued pursuant to § 2011 make it clear that the District Director of Internal Revenue may require from the proper officer of a taxing state evidence of the total amount of state death taxes imposed, the amount of any discount allowed, and the total amount actually paid to the state in cash. Treas. Reg. § 20.2011-l(c)(2).

There are a number of cases construing § 2011 for federal tax purposes. These make it clear that only the net amount actually paid to the state can be claimed as a credit against the federal tax, so that any discount or other allowance made by the state is not allowed in computing the credit. See Commonwealth Trust Co. of Pittsburg v. Driscoll, 50 P.Supp. 949 (W.D.Pa.1943), aff’d, 137 F.2d 653 (3rd Cir.1943), cert. denied, 321 U.S. 764, 64 S.Ct. 521, 88 L.Ed. 1061 (1944); Smith v. Commissioner, 59 F.2d 533 (7th Cir. 1932); J. B. Lewis, The Estate Tax § 18.2 (4th ed. 1979).

There are provisions in both the federal and state statutes allowing for the reopening of estates and adjusting for changes made in the state tax credit. See I.R.C. § 2016; Tenn. Code Ann. §§ 30-1706 et seq. Contrary to the contentions of the Executors in this case, there is no statute of limitations against the federal government in such cases. If an estate obtains from a state a refund of death taxes for which credit was claimed against federal estate taxes, the Treasury must be notified and any additional federal tax paid. See I.R.C. §§ 2016, 6501.

Accordingly if the taxpayer’s position in the present case were sustained, and if the taxpayer were allowed to recover from Tennessee the estate taxes paid under protest, there would be a corresponding increase in the federal estate tax liability and a complete frustration of the theory and purpose of the Tennessee estate tax statute. The taxpayer, in no sense, can claim a “double” credit, so as to avoid paying either the maximum federal estate tax or a federal tax reduced by payment of the Tennessee estate tax.

A similar contention of a taxpayer was presented in the case of In re Estate of Callaway, 263 Cal.App.2d 795, 69 Cal.Rptr. 921 (1968). In that case the court held that a credit for previously paid taxes did not operate as a credit against the state’s pickup tax. It said:

“Respondent contends that section 14071 relieves this estate from all liability or obligation to pay either the ordinary state inheritance tax or the section 13441 pickup tax on those assets distributed to the Class A transferee. However, the application of a statutory construction consistent with the acknowledged legislative intent to preserve for the state the benefit under the correlated state and federal statutes refutes this contention and reconciles the apparent conflict in the statutory language upon which the Executor’s position is founded.
“Obviously, the Legislature did not intend, by extending the prior transfer credit (Rev. & Tax. Code, § 14071), to defeat its purpose to receive the maximum pickup tax (Rev. & Tax. Code, § 13441).” 263 Cal.App.2d at 799, 69 Cal.Rptr. at 923.

In their brief, the Executors insist that a “credit” against a tax can, under some circumstances, amount to or be equated with “payment” of the tax. This, of course, may be true in particular circumstances or contexts. However, we are unable to sustain their contention that the inheritance tax credit involved in the present case, based upon taxes paid in connection with another estate, operates to diminish the Tennessee estate tax liability. Rather, since the taxpayer is taking advantage of the maximum credit allowed to the estate under federal taxing statutes, thereby reducing its federal taxes, it must pay to the state the local estate tax as provided in T.C.A. §§ 30-1701 et seq.

The judgment of the Chancellor is reversed and the suit is dismissed at the cost of appellees.

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

      . For discussion and analysis of similar provisions under an earlier inheritance tax law, see Bank of Commerce & Trust Co. v. McLemore, 162 Tenn. 137, 35 S.W.2d 31 (1931); the earlier provisions, like those of earlier Internal Revenue Code sections, exempted the value of property previously taxed, rather than allowing credit for taxes previously paid. See C. Lowndes, R. Kramer & J. McCord, Federal Estate and Gift Taxes, 610 (3d ed. 1974).

      . “It is well settled in this State that the Inheritance tax is a privilege tax on the privilege of receiving property from a decedent.” McReynolds v. Tidwell, 488 S.W.2d 366, 369 (Tenn.1972).

      . In like manner, federal estate taxes paid with respect to another decedent do not qualify for the Tennessee inheritance tax credit under T.C.A. § 30-1612, which applies only to taxes previously “imposed by this state.” Credit for previously paid federal, death taxes is allowed against the federal estate tax under I.R.C. § 2013, which is not involved in this case.

      . This is not to suggest that previously paid Tennessee estate taxes would not qualify for the inheritance tax credit under T.C.A. § 30-1612. That is not the issue presented in this case. The parties are not in dispute over the amount of the credit due to the estate against inheritance taxes or as to the computation of that credit.


author: BROCK, Chief Justice.

text:
    Johnny E. SHERLIN, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    July 23, 1979.

      Richard H. Winningham, Chattanooga, for appellant.
    Phillip A. Fleissner, Chattanooga (Cham-bliss, Bahner, Crutchfield, Gaston & Irvine, Chattanooga, of counsel), for appellee.
   OPINION

BROCK, Chief Justice.

This is a workmen’s compensation ease in which the plaintiff employee sued the insurer of his employer to recover benefits for an alleged injury arising out of and in the course of his employment resulting in disability to his hand. After the complaint was filed in court, the attorneys for the parties reached an agreement in writing to settle the plaintiff’s claims for workmen’s compensation in a lump sum, subject to approval of the Chancellor. However, after this written agreement was entered into but before its submission to the court for approval, the employee died from a gunshot wound unrelated to his employment. At this point the defendant insurer filed a petition before the Chancellor praying that the court determine the following question, to wit:

“Under the terms of the settlement agreement calling for a lump sum settlement, does the defendant remain liable for the full amount of the lump sum settlement including that portion of the settlement that had not accrued upon the workman’s death, or should the settlement be modified in view of the workman’s death to pay the estate only those portions that had accrued at the date of death?”

All the facts pertinent to this issue were stipulated by the parties and the matter was submitted to the Chancellor upon the stipulation, pleadings and briefs. The learned Chancellor concluded that the lump sum settlement agreement never became binding on any of the parties because it was not approved by the court prior to the death of the employee.

We have concluded that the Chancellor has correctly decided the controversy and, accordingly, we adopt the opinion of the Chancellor as the opinion of this Court with respect to the issues discussed and decided in that opinion.

CHANCELLOR’S OPINION

“The undisputed facts are as follows:

“1. On or about July 11, 1978, plaintiff was an employee of Abilities, Inc., and received an injury in the course and scope of his employment to his right hand. There is no question with respect to notice.

“2. Abilities, Inc. has its workmen’s compensation coverage with defendant, Liberty Mutual Insurance Company.

“3. Defendant paid and plaintiff received 7 weeks of temporary total benefits for a sum total of $513.31. (The compensation rate based upon plaintiff’s earnings was $73.33).

“4. In due time, defendant’s adjuster and plaintiff’s attorney reached an agree-me nt to compromise and settle this claim on a lump sum basis, subject to court approval.

“5. The defendant and the plaintiff settled this claim for (a) the medical benefits relating to the treatment of the hand, (b) 24 weeks of temporary total disability benefits and (c) 135 weeks of permanent partial disability based upon an agreed rating of ninety (90%) percent to the hand.

“6. It was contemplated that the defendant’s attorneys would draw up the papers to seek Court approval of the foregoing settlement. The defendant’s attorneys did draw up a Final Decree for presentation to the court, and the check was ordered from the Home Office and was received in the lump sum uncommuted amount of Nine Thousand Eight Hundred Ninety-Nine and 55/100 dollars ($9,899.55), which sum represents $10,412.86 less $513.31 previously paid as temporary total benefits. The check was to be held by the defendant’s attorneys while the arrangements were made to present this settlement to the court for court approval.

“7. The parties were to appear before the court on December 28,1978 to see about getting the settlement approved.

“8. On or about December 23, 1978, plaintiff, Johnny E. Sherlin, met his death by a non-industrial accident and when he was shot to death during an encounter with an armed assailant.

“Candor compelled the admission from the defendant that the above recited agreement was in fact agreed to between the parties, but, by virtue of these extraordinary circumstances, defendant questions whether or not this claim survives plaintiff’s death and whether defendant now remains obligated to the agreement and if so, to what extent.

“Plaintiff maintains that the parties entered into a binding contract and that the defendant should be compelled to comply with its terms by paying the sum of $9,899.55 to the personal representative of the deceased’s estate. Plaintiff insists that court approval as provided in T.C.A. 50-1006 was not necessary to finalize or validate the agreement between the parties and that the agreement was binding on both parties even though court approval had not been sought or obtained.

“The pertinent part of T.C.A. 50-1006 is in the following words and phrases:

“ ‘The interested parties shall have the right to settle all matters of compensation between themselves, but all settlements, before the same are binding on either party, shall be reduced to writing and shall be approved by the judge of the circuit court or of the chancery court or criminal court of the county where the claim for compensation is entitled to be made. It shall be the duty of the judge of the circuit court or of the chancery court or criminal court to whom any proposed settlement shall be presented for approval under this law, to examine the same to determine whether the employee is receiving, substantially, the benefits provided by the Workmen’s Compensation Law. To this end he may call and examine witnesses. Upon such settlement being approved, judgment shall be rendered thereon by the court and duly entered by the clerk . . . .’ (emphasis supplied).

“From all of which the court concludes that the agreement between the parties was not ‘binding on either party’ since the proposed agreement was not approved by the court during the life time of the plaintiff. In other words, the court respectfully rejects plaintiff’s binding contract theory which would require defendant to pay the agreed sum to the personal representative of plaintiff’s estate.

“Did plaintiff’s claim survive his death? It appears to be reasonably clear that unaccrued disability benefits, upon the death of the employee, do not survive to his personal representative. Rose v. City of Bristol, 203 Tenn. 629, 315 S.W.2d 237 (1958); Bry-Block Mercantile Co. v. Carson, 154 Tenn. 273, 288 S.W. 726 (1926); Marshall v. South Pittsburg Lumber & Coal Co., 164 Tenn. 267, 47 S.W.2d 553 (1932). The rationale of these cases is as follows:

‘Reasons given in the cases are that it is the purpose of workmen’s compensation acts to make industry take care of its casualties. To that end compensation is provided for injured workmen in lieu of wages. Wages cease with death, and likewise compensation received in lieu of wages must cease with death. If the employee dies from natural causes, his representatives have no claim against the employer. If the death results from injuries received in the industry, there are special provisions to take care of the employee’s dependents. It would put an additional burden on the employer, not contemplated by the statutes, to require him to pay either wages or compensation to representatives of an employee who died from natural causes. If an employee had a vested right in compensation, he could will it away, and the employer would be paying this substitute for wages to persons with whom he had no connection. These and other reasons seem to abundantly sustain the majority rule.
Mr. Chief Justice Green, in Bry-Block v. Carson, 154 Tenn. at 277-278, 288 S.W., at 728.’

“In the Bry-Block case, the employee had lost his leg just above the ankle, and the employer paid benefits to the date of death. It was held that his widow could not recover the rest of the benefits for the scheduled injury that had not come due as of the date of death.

“In the case of Rose v. City of Bristol, it was alleged that plaintiff had disability to both lower extremities from a work-related pelvic fracture. He was paid temporary total disability benefits from date of injury until his non-related death. It was alleged that the amount of compensation for thrombo-phlebitis of his lower extremities had never been judicially determined at the time of his death, but that he was entitled to a settlement on this basis prior to his death ‘regardless of his future earning ability,’ and that the deceased had a vested interest in the right to compensation which survived his death and vested in his Estate. A demurrer was sustained, and on appeal to the Supreme Court, it was held that the right to compensation was not vested and did not pass to the Estate.

“In the case of Marshall v. South Pittsburg Lumber, the plaintiff lost a thumb. The case was tried in the Chancery Court and an award of compensation was rendered. Pending appeal to the Supreme Court, the plaintiff died and the case was revived in the name of his administrator. The administrator contended that he was entitled to recover the entire award made to the plaintiff by the Chancery Court. However, the Supreme Court held that the judgment of the Chancery Court, although affirmed on the issue of compensability, must be restricted so that the ‘administrator can only recover so much of the award as had accrued at the time of the plaintiff’s death.’ 164 Tenn., at 271. [47 S.W.2d 553]

“After reviewing the above mentioned decisions of our Supreme Court with respect to similar type cases, this court concludes that plaintiff’s claim did not survive his non-work-related death and that defendant is not compelled by the agreement to pay the lump, sum settlement figure to the personal representative of plaintiff’s estate.

“The court is of the opinion that defendant should pay to plaintiff’s personal representative temporary total benefits which had accrued until the date of his death less the 7 weeks heretofore paid.”

The decision and conclusions of the Chancellor are further supported by the decisions of this Court in Mangrum v. Aetna Life Ins. Co., 153 Tenn. 209, 280 S.W. 1011 (1926); Vester Gas Range and Mfg. Co. v. Leonard, 148 Tenn. 665, 257 S.W. 395 (1923); Moore v. Hines, 170 Tenn. 456, 95 S.W.2d 928 (1936); Stephens v. American Mutual Liability Ins. Co., 188 Tenn. 560, 221 S.W.2d 803 (1949); Travelers Insurance Company v. Wing, Tenn., 584 S.W.2d 789 (1979).

Although the petitioner has presented respectable authority from other jurisdictions which tend to support his position, we are of the opinion that the conclusion reached by the Chancellor and which we approve is required by the language of T.C.A., § 50-1006, as it has been consistently interpreted by decisions of this Court over the past 55 years.

The decree of the Chancellor is affirmed and costs incurred in this Court are taxed against the appellant.

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


author: FRANKS, Judge.

text:
    Martin SCHRATTER, et ux., Plaintiffs-Appellants, v. DEVELOPMENT ENTERPRISES, INC., d/b/a Marquis Luxury Apartments, Defendant-Appellee.
    Court of Appeals of Tennessee, Eastern Section.
    Jan. 19, 1979.
    Certiorari Denied by Supreme Court July 2, 1979.
    R. Jerome Shepherd, Cleveland, for plaintiffs-appellants.
    Luther, Anderson, Cleary, Luhowiak & Cooper, Chattanooga, for defendant-appel-lee.
   OPINION

FRANKS, Judge.

This appeal presents the issue of whether exculpatory clauses in residential leases will be enforced to bar recovery against a landlord for his negligent acts which cause loss or damage to his tenant.

Plaintiffs and defendant entered into a residential apartment lease agreement in July, 1976, in Bradley County. In January, 1977, an agent of defendant negligently caused a fire in the apartment building, which resulted in loss and damage to plaintiffs’ personal property and other losses and expenditures. Defendant filed a motion for summary judgment, averring that a provision in the lease prohibits the plaintiffs from maintaining the suit which states, in part, at Sec. 21:

[T]he Lessor and its agents shall not be liable to Lessee, or any person claiming through Lessee, for any injury to the person or loss of or damage to property from any cause .

Plaintiffs argued before the trial court that the exculpatory provision in the lease was void as against public policy, but the trial judge, in sustaining defendant’s motion, held under general contract law that parties to a contract may absolve themselves from liability and the rule is applica-

ble to leases. The trial judge’s memorandum quoted with approval Chazen v. Trailmobile, Inc., 215 Tenn. 87, 384 S.W.2d 1 (1964), as follows:

There is no disagreement within the various courts and jurisdictions over the fact that parties may contract to absolve themselves from liability, and this rule is applicable, and has been applied to the field of landlord and tenant. It has often been held that public policy is best served by freedom of contract and this freedom is prompted by allowing parties to limit their liability for fire damage under lease agreements. [Citations omitted.] Page 91, 384 S.W.2d page 3.

Appellants appealed, insisting the public policy of Tennessee is no longer as expressed in Chazen and the earlier case between those parties reported as Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840 (1963).

Plaintiffs contend The Uniform Residential Landlord and Tenant Act of 1975, codified at T.C.A., § 64-2801, et seq., has changed the public policy of the state in this area of the law.

T.C.A., § 64-2813(a)(2) prohibits provisions in rental agreements in which the tenant “agrees to the exculpation or limitation of any liability of the landlord to tenant arising under law . . . ” If the act applied to the rental agreement under consideration, the disputed clause would be void; however, the lease was made and performed in Bradley County and T.C.A., § 64-2802 limits application of the act to “counties having a population of more than two hundred thousand [200,000]” or the four so-called metropolitan counties, and defendant argues the Uniform Act leaves the prior public policy of the state, as expressed in Chazen, in full force in the remaining 91 counties.

Plaintiffs’ argument that the public policy of the state should be uniform throughout is not without appeal. It is disconcerting that the rights of tenants in certain counties of the state should differ so greatly from the rights of tenants in the four metropolitan counties. Nevertheless, the General Assembly clearly limited the application of the act and to accept plaintiffs’ argument would extend the application of the Uniform Act to areas which the legislature has specifically excluded. It is our obligation to give effect to, rather than ignore, the legislature’s expressly stated intentions. See Tasco Developing & Bldg. Corp. v. Long, 212 Tenn. 96, 368 S.W.2d 65 (1963).

The freedom to contract away liability, as expressed in Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1961), and other cases, is not without limitations. The Supreme Court, in the case of Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), held if the exculpatory provision affects the public interest, then exceptions are to be made for the benefit of the public and adopted the following criteria to be considered in making that determination:

[a.] It concerns a business of a type generally thought suitable for public regulation.
[b.] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.
[c.] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards.
[d.] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.
[e.] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence,
[f.] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. [Tunkl v. Regents of University, 60 Cal.2d 92] 32 Cal.Rptr. [33] at 37-38, 383 P.2d [441] at 445-446.

We believe several of the enumerated characteristics are present in this case and while many states have, by legislative enactment or judicial decision, limited or prohibited broad exculpatory clauses in residential leases, e. g., Tenants Council of Tiber Island-Carrollsburg Sq. v. DeFranceaux, 305 F.Supp. 560 (D.D.C., 1969), (clause void against public policy); McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971), (clause void); Carlton v. Hoskins, 134 Ga.App. 558, 215 S.E.2d 321, (clause limited in effect); College Mobil Home Park & Sales, Inc. v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174, (validity of clause limited by circumstances of contract)), we are constrained not to apply the Olson standard to this case since the Supreme Court limited its decision’s application to professional service contracts and, while recognizing that Chazen had been decided without consideration of the public interest aspect, did not expressly overrule and cited it as authority for the freedom of contract rule in this state.

For the foregoing reasons, the appellants’ assignment of error is overruled; the judgment of the trial court is affirmed, with costs incident to this appeal assessed against appellants.

SANDERS and GODDARD, JJ., concur.

      . Whether the classification of counties rests on a proper basis was not challenged in this case and is not before us for consideration.

      . Olson states at page 431, “it is not necessary that all be present in any given transaction, but generally a transaction that has some of these characteristics would be offensive. . .”

      . Chazen involved a commercial lease and some jurisdictions have distinguished between residential and commercial leases. See generally, Annot., Lease — Exculpatory Clause — Validity, 49 A.L.R.3d 321.