author: DROWOTA, Judge.

text:
    MAMMOTH CAVE PRODUCTION CREDIT ASSOCIATION, Plaintiff-Appellee, v. L. H. OLDHAM and Walter Taylor d/b/a Smith County Tobacco Warehouse Co., Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 26, 1977.
    Certiorari Denied by Supreme Court Oct. 17, 1977.

      Solon Fitzpatrick, Carthage, for defendants-appellants.
    Charles H. Beaty, Beaty & Phillips, Galla-tin, for plaintiff-appellee.
   OPINION

DROWOTA, Judge.

This case raises several questions about the validity of and prerequisites to a suit for conversion by the holder of a security interest in crops under Article 9 of the Uniform Commercial Code against a factor and commission merchant, which sold the collateral for the debtor and turned over the proceeds to him.

Plaintiff, Mammoth Cave Production Credit Association, a corporation in the business of agricultural financing in Kentucky, filed suit in Smith County Chancery Court on July 30, 1975, against L. H. Old-ham and Walter Taylor, partners in a tobacco warehouse business known as Smith County Tobacco Warehouse Co. The complaint alleged that, because defendants had sold through their warehouse certain tobacco in which plaintiff claimed a security interest and had paid the proceeds to plaintiff’s debtor, defendants were liable to plaintiff for conversion in the amount of $2,289.00, the value of the debtor’s tobacco. A very brief hearing was held before the Chancellor, who on September 16, 1976, filed a memorandum opinion in which he found defendants liable to plaintiff for $2,289.00. This conclusion was implemented by a decree to the same effect on October 1, 1976. Defendants have appealed from this decree, disclaiming liability and challenging the validity of plaintiff’s security interest, inter alia.

The proof in the ease is brief, consisting of a page and a half of stipulations, seven pages of testimony from defendant Oldham, and documentary exhibits. From these, it appears that the debtors, Glen Carter and wife, executed a promissory note for $22,-000.00 to plaintiff on March 8, 1973. On March 26,1974, the same parties executed a document entitled “Financing Statement and Security Agreement,” which was introduced into evidence. This agreement contains the names, addresses, and signatures of the parties, and purports to give plaintiff a security interest in certain crops, farm equipment, and livestock of the Carters. The description of the crops covered by the agreement reads in part as follows:

All tobacco crops, Including but not limited to all of 2800 pounds on Gene B. Sewell farm, all of 1826 pounds on Curtis Anderson, all of 830 pounds on Robert Shaw, ½ of 5200 pounds on Dewey Allen

The agreement also sets out several covenants and provides that upon breach of any one of them, all indebtedness secured by the agreement will become due and payable “at the option of the Lender.” One of these covenants provides that the debtor “will not further encumber, conceal, remove, sell or otherwise dispose of [the collateral] without the written consent of the Lender . . .” In spite of this provision restricting sale, the agreement also contains a further item in which a security interest is claimed in the proceeds of the collateral previously described in it. It was stipulated that a copy of this document was filed for record in the office of the County Court Clerk in Cumberland County, Kentucky, the county in which the tobacco in dispute here was grown, and that it was not filed in Tennessee, where defendants’ warehouse is located.

The tobacco in question here was grown by the debtor, Carter, on the farm of Dewey B. Allen. It is stipulated that Allen, who evidently had half the farm’s tobacco for himself while Carter had the other half, put the tobacco on the floor of defendants’ warehouse to be sold on January 2, 1975. The tobacco was sold on January 6 at which time, on Allen’s order, defendants paid $2,288.29 to Carter and $2,289.00 to Allen by two separate checks.

. Also part of the record is a certified letter from plaintiff, addressed to Smith County Tobacco Warehouse and dated November 5, 1974. This letter specified the “crops rented” by Carter in essentially the same manner as the security agreement, and its list included “½ of 5200 pds. on Dewey Allen, Rt. 1, Burkesville, Ky.” Although plaintiff alleges in its complaint that this letter was accompanied by a copy of the security agreement, this is not established by the proof. The letter does, however, give the agreement’s file number in the Cumberland County Court Clerk’s office and state the principal owed plaintiff by Carter as $16,511.93. It is stipulated that defendants received this letter on November 19, 1974.

The brief testimony of defendant Oldham established that defendants’ warehouse had made the sale as factor and commission merchant, that is, the warehouse did not buy any tobacco from Carter or Allen but merely sold it for them. Oldham admitted receiving the letter from plaintiff, but maintained that he had had no actual knowledge of the security interest. He said it was customary to receive notice of such interests by letter and to keep a list of debtors’ names to check the sales against, but pointed out that Carter’s name appeared nowhere in the bill for this tobacco or in defendants’ other records.

Relying upon the foregoing, the Chancellor found defendants liable to plaintiff for conversion in the amount of $2,289.00. In his memorandum opinion, while he noted that the description of collateral in the security agreement was “very meager” and that “it is possible that under the terms of the Commercial Code of the State of Kentucky, that it could be invalid,” he did not decide the issue of the security interest’s validity. Instead, the Chancellor focused on the issue of actual notice and found that defendants had such notice of the security agreement. He evidently believed that this finding made it unnecessary to consider either the validity or the perfection of the security interest under the Uniform Commercial Code, on the theory that the only purpose of doing so would be to establish defendants’ constructive notice via the filing provisions of the Code and that this was unnecessary in view of their having had actual notice. The Chancellor, then, found that defendants had actual notice of plaintiff’s security interest and held them liable for conversion.

“A conversion, in the sense of the law of trover, is the appropriation of the thing to the party’s own use and benefit, by the exercise of dominion over it, in defiance of plaintiff’s right.” Barger v. Webb, 216 Tenn. 275, 391 S.W.2á 664, 665 (1965); see W. Prosser, Law of Torts 79-97 (4th ed. 1971). To be liable, the defendant need only have an intent to exercise dominion and control over the property that is in fact inconsistent with the plaintiff’s rights, and do so; good faith is generally immaterial. Prosser, supra, at 83. There is some relaxation of this rule, however, in cases absolving of liability for conversion agents who themselves acted in good faith, without actual notice of the interference with the plaintiff’s rights. See J. T. Fargason Co. v. Ball, 128 Tenn. 137,159 S.W. 221 (1913); Frizzell v. Rundle, 88 Tenn. 396, 12 S.W. 918 (1890); Prosser, supra, at 85-86, 88-89. We note, however, that this more lenient principle could not apply in the case at bar because defendants did have actual notice of plaintiff’s security interest.

Under the Code, it is clear that a secured party cannot sue for conversion of collateral as a result of its disposition by the debtor unless that disposition is unauthorized, for a disposition authorized by the secured party results in the loss of the security interest in the collateral and retention of a security interest only in identifiable proceeds. T.C.A. § 47-9-306(2). Beyond this, it is unclear exactly what rights, if any, the secured party must show in the collateral to state a cause of action for conversion.

It seems true ordinarily that conversion can be maintained only if the plaintiff can show possession or a right to immediate possession of the item converted at the time of the alleged conversion. Prosser, supra at 93-95. Thus, it has been held that a secured party cannot recover in conversion for unauthorized disposition of collateral by the debtor unless the secured party’s right to possession has accrued under Code § 9-503, that is, unless a default has occurred. Empire Fire and Marine Insurance Co. v. First Nat’l Bank of Arizona, 26 Ariz.App. 157, 546 P.2d 1166 (1976); Royal Store Fixture Co. v. New Jersey Butter Co., 114 N.J.Super. 263, 276 A.2d 153 (1971). On the other hand, some cases seem to hold that, in situations similar to the one at bar, Code § 9-306(2) and Official Comment 3 thereto empower the secured party to bring a conversion action by showing only that a valid security interest existed and that the disposition was unauthorized. Clovis National Bank v. Thomas, 77 N.M. 554, 425 P.2d 726 (1967); White-Sellie’s Jewelry Co., Inc. v. Goodyear Tire & Rubber Co., 477 S.W.2d 658 (Tex.Civ.App.1972).

In most cases, any distinction between the two positions just mentioned is moot, because the security agreement defines default to include any unauthorized disposition of the collateral. This is also the situation in the case at bar. The security agreement, in effect, makes disposition of the collateral by the debtor without plaintiff’s written consent a default at plaintiff’s option. Because plaintiff has brought this suit, we may assume that he has elected to treat the sale of the tobacco as-a default. Thus, we need not decide whether default is a necessary prerequisite to a suit for conversion by the secured party, or whether an unauthorized disposition of collateral by the debtor is enough of itself, for if the latter has occurred in this case the former has also. Plaintiff’s right to bring this suit for conversion of the tobacco depends simply on whether or not plaintiff authorized its sale.

We think that the record in this case is deficient and unclear on the issue of whether plaintiff authorized the sale of the tobacco, and consequently on the issue of his right to bring this conversion action. It appears, however, that this deficiency was not due to culpable negligence by the parties but, indeed, the point may have been clear to all concerned in the trial court and the answer assumed by them, although not explained in the record. Further, introduction of the security agreement itself and the fact of sale by the debtor raise the problem tacitly, and indicate the necessity of further proof for its resolution. Accordingly, we are remanding the case for further proceedings to correct this deficiency under T.C.A. § 27-329, so that a proper and just result may be reached. See Wood v. Neely, 66 Tenn. 586 (1874); Stokely v. Southern Railway Co., 57 Tenn.App. 271, 418 S.W.2d 255 (1967). We will now proceed to state our view of the case and to outline the clarifications we think necessary so that a proper result may be reached quickly and efficiently on remand.

Initially, we agree with the Chancellor that consideration of the question of perfection of plaintiff’s security interest under the Code, with its attendant problems of filing and constructive notice, is unnecessary to a decision in this case. The Code provides that if the debtor’s disposition of the collateral is unauthorized, the security interest continues in that collateral as well as in its proceeds. T.C.A. § 47-9-306(2). A security interest that does continue will be valid against a third party unless he can show his priority under T.C.A. § 47-9-301 or § 47-9-307. Defendants fit under none of the provisions of § 47-9-301, for they are neither secured parties nor lien creditors, nor were they without knowledge of the security interest of plaintiff. Nor can defendants bring themselves within the provisions of § 47-9-307, which does not apply in the case of farm products sold by a person engaged in farming operations. In effect, then, defendants’ actual notice of plaintiff’s security interest in the tobacco is enough to make the security interest operate as though it were perfected as to defendants, who are subject to it provided that the sale was unauthorized. The question is thus whether plaintiff authorized the sale and perfection is unimportant.

While perfection is not necessary for plaintiff to assert its security interest in the tobacco in this conversion action against defendants, existence of a valid security agreement is a prerequisite to such assertion. Without this, plaintiff would have no rights at all in tobacco or proceeds. The “situs” rule of Code § 9-102 has made Tennessee’s version of the Code applicable to the events in this case that occurred while the collateral was located in Tennessee, also the site of defendant’s warehouse. See T.C.A. § 47-9-102(1), and Official Comment 3 thereto. Since the transaction intended to create a security interest between plaintiff and the debtor Carter took place in Kentucky, however, that state’s version of the Code governs the existence and validity of the security interest itself. Kentucky Revised Statutes § 355.9-102(1). Under the applicable legal provisions, we think that the security interest in this case is valid.

The steps that must be taken by the parties as a prerequisite to the existence of a security interest enforceable against the debtor are stated in K.R.S. §§ 355.9-203 — 355.9-204, and may be summarized as follows. The parties must:

(1) Enter into a security agreement,
(2) Reduce so much of that agreement to a writing as is necessary to satisfy 9-203 (which also requires that the debtor sign this writing), or give possession of the collateral to the creditor,
(3) Have the debtor acquire rights in the collateral,

(4) Have the secured party give value. J. White & R. Summers, Uniform Commercial Code § 23.2 (1972). Defendants’ major challenge to the security interest in this case is that it does not sufficiently describe the crops and the land on which they were grown, as is required by K.R.S. § 355.9-203. Light is shed on the problem of what constitutes a sufficient description for purposes of this section by K.R.S. § 355.9-110, which reads as follows:

For the purposes of this article any description of personal property or real estate is sufficient whether or not it is specific if it reasonably identifies what is described.

The official comment to this section indicates that it is intended to reject the requirement of detailed description and make the test of sufficiency simply that the description “make possible the identification of the thing described.” With this test in mind, we conclude that the description of collateral, quoted above, in the instant security agreement was sufficient to make it valid under the Code. An objective reading of the agreement could hardly fail to produce the conclusion that plaintiff was claiming a security interest in half of the 5200 pounds of tobacco grown on Dewey Allen’s farm. The word “proceeds” is sufficient to cover any proceeds by the express terms of K.R.S. § 355.9-203. The agreement also complies with the other requirements of §§ 355.9-203 and 355.9-204. Accordingly, we would overrule defendants’ objections to the security agreement and hold it valid.

Defendants’ arguments that the financing statement filed by plaintiff fails to comply with K.R.S. § 355.9-402 and other provisions need not be treated for, as we have pointed out, perfection of the security interest is irrelevant on these facts. Since defendants were subject to the security interest in the tobacco if its disposition by the debtor was unauthorized, the only important question other than that of whether the sale was authorized is that of the validity of the security agreement. We have already concluded that the agreement was valid.

Again, however, a valid security agreement is not enough. Defendants were subject to the security interest in the tobacco only if the sale was not authorized by plaintiff, which under the Code would mean that the security interest continued and under this security agreement would also mean a default. It is crucial to know whether the debtor was authorized to sell this tobacco and, if so, whether the authorization was properly made in writing according to the terms of the security agreement, in order to know if plaintiff may maintain this action for conversion. The record does not tell us this, although it does establish the terms of the security agreement and the fact of a sale by Carter. On remand, the missing details as to authorization of the sale should be easily supplied, and the case quickly and finally resolved.

The Chancellor’s findings, supported by the evidence, already establish the requisite intent and interference with property by defendants to constitute conversion. The finding that they had actual notice, also supported by the evidence, precludes further assertion by defendants that they are not liable because they acted in good faith and without notice. On remand the Chancellor need only determine whether the sale was properly authorized by plaintiff. If not, plaintiff is entitled to a judgment against defendants for conversion of the tobacco in the amount of its fair market value at the time of sale. But if the sale was authorized, there was no conversion of the tobacco by defendants, since plaintiff’s security interest would not continue after an authorized disposition by the debtor. In such a case, however, plaintiff would retain a security interest in identifiable proceeds.

We have assumed through most of this opinion that plaintiff is suing for conversion of the tobacco. We realize, however, that a claim might be made for proceeds instead, and plaintiff ought to make clear on remand exactly which theory he is pursuing, though there is little difference in the outcome either way. An unauthorized disposition of the tobacco, coupled with defendants’ payment of the proceeds to Carter, would give plaintiff the right to a judgment for conversion of the proceeds in their money amount. This brings us to one final, minor point: it is stipulated that defendants paid $2,288.29 over to Carter as proceeds from the sale of his tobacco, while the amount of the decree against defendants is $2,289.00. This, too, should be clarified on remand.

Remanded with instructions.

SHRIVER, P. J., and TODD, J., concur.

      . Criticism has been leveled at the view that a right to immediate possession in the plaintiff is an absolute prerequisite to a conversion action. See Production Credit Ass’n of Chippewa Falls v. Equity Coop Livestock Sales Ass’n, 82 Wis.2d 5, 261 N.W.2d 127, 129 n. 13 (1978); W. Prosser, Law of Torts 95-96 (4th ed. 1972); Justice, Secured Parties and Judgment Creditors — The Courts and Section 9-311 of The Uniform Commercial Code, 30 Business Lawyer 433, 438 — 41 (1975). These critics generally suggest that a plaintiff should be entitled to recover in conversion for significant wrongful interference with property in which he has an interest whenever such an interference justifies a suit to recover the property’s full value. We neither accept nor reject this proposition, but we point out that defendant’s disposition of the collateral in the instant case, if wrongful (i. e. unauthorized), was clearly significant enough to justify a suit for conversion under this approach. See note 2, infra.

        . Some courts and commentators adhere to the view that conversion also entails something more than just the debtor’s unauthorized disposition of collateral constituting, or occurring after, a default. See Citizens Bank of Lavaca v. Perrin & Sons, Inc., 253 Ark. 639, 488 S.W.2d 14 (1972); Production Credit Ass’n of Chippewa Falls v. Equity Coop Livestock Sales Ass’n, 82 Wis.2d 5, 261 N.W.2d 127, 132 n. 20 (1978); Justice, Secured Parties and Judgment Creditors — The Courts and Section 9-311 of The Uniform Commercial Code, 30 Business Lawyer, 433, 441 — 43 (1975). But see Murdock v. Blake, 26 Utah 2d 22, 484 P.2d 164 (1971). This view derives support from U.C.C. § 9-311, which provides that a “debtor’s rights in collateral may be voluntarily or involuntarily transferred . . notwithstanding a provision in the security agreement prohibiting any transfer or making the transfer constitute a default.” If the debtor’s rights in the collateral are expressly so alienable, runs the argument, it seems unlikely that their transfer alone was intended invariably to constitute a conversion. Also reconcilable with this view is U.C.C. § 9-306(2)’s Comment 3, which points out that since a security interest continues in collateral disposed of by the debtor without authority, the secured party may “in an appropriate case maintain an action for conversion” (emphasis added).
      In Citizens Bank of Lavaca, supra, the Arkansas court held that causing an attachment and sale of collateral is not a conversion per se. The court found on conversion on the facts before it because the collateral was as accessible to the secured party in the buyer’s hands as it would have been had the debtor sold it, which § 9-311 gave him the right to do. But in Royal Store Fixture Co. v. New Jersey Butter Co., 114 N.J.Super. 263, 276 A.2d 153 (1971), removing the collateral from the state after purchasing it at a judicial sale was held to constitute conversion. Thus it could be said that, according to these cases, the “something more” needed to turn an unauthorized disposition of collateral by the debtor into a conversion is a significant wrongful interference with the secured party’s rights (similar to that discussed in note 1, supra). See Justice, supra, 441 — 42.
      In the instant case, defendants’ sale of the tobacco through their warehouse to buyers who could be expected to process it, commingle it with other tobacco, and otherwise render it unidentifiable and inaccessible to plaintiff, was clearly a significant interference with any rights plaintiff may have had in the tobacco. Whether such an interference is a necessary element of conversion in cases like this or whether the debtor’s unauthorized disposition in default is enough of itself to constitute the tort, then, the dispositive issue in this case is the same: Was the debtor’s disposition of the collateral unauthorized and hence a default under the security agreement? Accordingly, in this opinion we confine ourselves to that issue and do not decide whether a significant wrongful interference with the secured party’s rights in collateral is a prerequisite to conversion liability under Tennessee law.


source: Caselaw Access Project

author: SHRIVER, Presiding Judge.

license: Public Domain

text:
    Sam PETTY, Plaintiff-Appellee, v. ESTATE of W. V. NICHOLS, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 2, 1977.
    Certiorari Denied by Supreme Court April 24, 1978.

      Thomas E. Fox, Franklin, Ward DeWitt, Jr., Nashville, for plaintiff-appellee.
    Tommy E. Doyle, Humphreys, Townsend & Doyle, Linden, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

This is an appeal by the estate of W. V. Nichols, deceased, from a jury verdict rendered in the Circuit Court of Perry County, awarding the appellee one-half of the estate of W. V. Nichols who died January 28, 1975 and whose will was probated in the County Court of Perry County on January 30, 1975 wherein all of his property was devised to his son, W. V. Nichols, Jr., and wife, Barbara Wright Nichols.

Appellee, Sam Petty, is the stepson of the late W. V. Nichols and the natural son of Pearl Ledbetter Petty Nichols who married W. V. Nichols after the death of her former husband, father of appellee, and she is also the natural mother of W. V. Nichols, Jr., son of the above named W. V. Nichols, deceased.

Pearl Ledbetter Petty Nichols died testate on July 14, 1968, her will being probated in the County Court of Perry County on July 15, 1968, wherein she devised and bequeathed all of her property to W. V. Nichols, Sr., for and during his lifetime, with remainder to her two sons equally, appellee, Sam Petty, and W. V. Nichols, Jr., the latter of whom was the only child of W. Y. Nichols, Sr.

On July 12, 1975, appellee filed a claim against the estate of W. V. Nichols, deceased, in the amount of $225,000.00, subsequently amended so as to claim in the alternative one-half of the value of the estate.

Appellant filed exceptions to the claim on several grounds, following which the cause was transferred to the Circuit Court for trial where the case came on to be heard before Judge Henry Denmark Bell and a jury on October 8, 1976. At the completion of claimant’s proof, the Court sustained appellant’s motion for a directed verdict as to that portion of the claim which was for services rendered, but submitted to the jury the issue as to an alleged contract of W. V. Nichols and his wife, mother of appellee, to execute mutual wills leaving the estate of the survivor in equal shares to Sam Petty and W. V. Nichols, Jr. After due deliberation, the jury found that issue in favor of Sam Petty and judgment was accordingly entered in his favor. From this judgment, the defendant perfected its appeal and has assigned errors.

—The Record—

The record herein is very unsatisfactory in several respects.

The first entry in the Transcript of the Record is a certificate of the County Court Clerk that he has turned over to the Circuit Court Clerk of Perry County, his complete file in the W. V. Nichols Estate “for a hearing in the case.”

This is followed by a copy of the Will of W. V. Nichols and an Order of Probate, a claim of Sam Petty and exceptions to the claim, but there is no order of transfer to the Circuit Court for any kind of contest or hearing.

The other entries appear to be those made in the Circuit Court. There is a “Judgment,” which appears to be a verdict of the jury and final decree, an order amending the claim of Petty, and an order overruling the motion for a new trial and, finally, a certificate of the Circuit Court Clerk that it is a complete transcript of the record in the Circuit Court.

We have proceeded to a consideration of the case on its merits in spite of the deficiencies and irregularities in the record above indicated and others hereinafter noted.

The suit originated in the County Court as a claim of Sam Petty for $225,000.00 against the estate of W. V. Nichols, deceased, apparently, for services rendered, but, by amendment, it included suit to recover for breach of contract to make a will leaving one-half of the estate to the claimant, and the case was tried and concluded on this theory.

—Motion—

We have before us a motion to strike the Bill of Exceptions for having been filed after the time allowed for filing it had expired.

The order overruling defendant’s motion for a new trial was entered March 2, 1977. Said order provided:

“The executors respectfully excepted, prayed and were granted an appeal to the next term of the Court of Appeals sitting in Nashville, upon the condition that said appeal be perfected as required by law; and said executors were allowed sixty (60) days within which to have prepared and filed their Bill of Exceptions.”

Although no motion to amend the above order is included in the Transcript of the Technical Record, and no suggestion of diminution of the record was made, we have a certified “Order Correcting Clerical Error,” dated May 24th, 1977, which was transmitted by mail to the Clerk of this Court with accompanying letter of the Circuit Court Clerk, the order being as follows:

“ORDER CORRECTING CLERICAL ERROR

This cause came on to be heard upon the motion of the Estate of W. V. Nichols, Respondents herein, to correct a clerical mistake in the Order Overruling the Motion for a New Trial entered herein on March 2, 1977. Having reviewed said Order, the Court has independent recollection that the executors, through their attorney, requested and it was the Court’s intention to allow the maximum time allowed by statute, i. e., thirty (30) days to file an appeal bond and an additional sixty (60) days to file the Bill of Exceptions; therefore pursuant to Rule 60, it is
ORDERED, CONSIDERED and ADJUDGED that the Order Overruling Motion for a New Trial entered herein on the 2nd day of March, 1977, be and the same is hereby corrected so as to read as follows:
‘The executors respectfully excepted, prayed and were granted an appeal to the next term of the Court of Appeals sitting in Nashville, Tennessee, upon the condition that said appeal be perfected as required by law; and said executors were allowed an additional sixty (60) days to prepare and file their Bill of Exceptions.’
From all of which the Claimant respectfully excepted, prayed and was granted an appeal upon the condition said appeal be perfected as required by law.
Done and Ordered on the 24th day of May, 1977, and entered now for then. This the 31st day of May, 1977.

While our initial impression was that the Trial Judge exceeded his authority in amending or changing his original order after the expiration of thirty days from the entry thereof, we find that this Court, Western Section, in an Opinion by Judge Charles Nearn (June, 1976) passed on almost this precise question in Green Meadow Park, Inc. v. Am. Heritage Life Ins. Co., Tenn.App., 540 S.W.2d 267, approving an extension granted after 30 days had elapsed as being the correction of an error in the original order.

Following the decision in that case, we deny the motion to strike the Bill of Exceptions.

—Assignments of Error—

There are six assignments of error with numerous notes and comments which we will discuss hereinafter.

Assignment No. I is as follows:

“The Court erred in failing to sustain appellant’s motion to dismiss because claimant failed to state a claim against the estate upon which relief can be granted.”

It is argued that a claim where a third party beneficiary is trying to impose a contract to make mutual wills, that the only remedy available is specific performance.

Obviously, since the parties to the contract are deceased, there cannot be a personal performance of the contract; however, this does not preclude relief against the estate or determination as to proper distribution thereof.

It is further argued that the claim on its face shows that the agreement, if any, was in parol and is, therefore, in violation of the Statute of Frauds, and, further that there are no allegations concerning consideration for the making of mutual wills and that it is, therefore, unenforceable.

As pointed out hereinafter, under Assignment IV, a will, once in existence and afterwards destroyed, is a sufficient memorandum to satisfy the Statute of Frauds. Moreover, the execution of her will by Mrs. Nichols furnished sufficient consideration to support the agreement of Mr. Nichols in respect to his will.

We find no merit in this assignment and it is, therefore, overruled.

Assignment No. Ill asserts that the Court erred in overruling appellant’s objections to parol testimony concerning the existence of a contract to make mutual wills as being in violation of the Statute of Frauds.

For the same reasons indicated in dealing with Assignment No. I, Assignment No. Ill is overruled.

Assignment No. II charges error in overruling appellant’s motion to strike all references in appellee’s pleadings concerning statements made by Mr. and Mrs. Nichols to the appellee and in overruling appellant’s objection to testimony concerning statements made by the decedents.

It is urged by appellants that the Dead Man’s Statute, T.C.A. § 24-105, was violated by references in appellee’s pleadings concerning statements made by the deceased, Mr. and Mrs. Nichols, and by the introduction over appellant’s objection of testimony concerning alleged statements made by them.

T.C.A. § 24-105, provides:

“In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. . . . ”

A part of the evidence admitted over the objection of counsel for appellant was that of the appellee, Sam Petty, wherein he testified that his stepfather, W. V. Nichols, and his mother, Mrs. Nichols had stated in his presence during their lives that they had agreed that he and his half-brother, W. V. Nichols, Jr., were each to get one-half of all of their property and that they had prepared wills while they lived in Texas and had told other relatives that they each had willed his or her property to each other, with the remainder to go at the death of the survivor in equal shares to W. V. Nichols, Jr. and Sam Petty. He also testified that on numerous other occasions during their lives, they both made statements to the effect that their estates would be divided equally between him and W. V. Nichols, Jr. upon the death of the survivor of the two.

Appellee, in describing the situation and the statements above referred to, stated that while they were living in Big Spring, Texas, he was about to finish high school in 1936, and that he and his mother and stepfather, whom he referred to as “Dad,” saying that he always called him “Dad” or “Daddy,” were together. He testified:

“. . And we were sitting there, and Dad asked what I was going to do about going to college. And I said, Well, I hope to go. I said, I have some money that my father left me, and I hope to go ahead and go to college. Mother said, Son, I’m sorry to have to tell you this, but we have been in a bind on the property . . . and I had to use your money to try to save the property in Perry County.
Q. After that statement about their using the money, was there any statements made by Mr. or Mrs. Nichols?
A. They told me not to worry about it . that my mother and stepfather had agreed that I would get half of both places, half the entire estate.
Q. Did they say what would go with the other half?
A. Said Bill and I were to share it equally and share and share alike, that I would get half of their’s too, my stepfather’s.” [B.E. pps. 56-57]

The appellee further testified that the day after his mother was buried, he and his stepfather and Bill (W. V. Nichols, Jr.) went to tbe Bank and got her Will out of the lock box, that there were two wills there together and that his stepfather said: “This is hers,” and he took it and left the other one in the lock box. On questioning he stated that the other will was that of his father. He also testified that they took his mother’s will to the County Judge and it was probated. He further stated that while they were in the office waiting for Judge Young to get the record and get the will recorded, that they were talking and his stepfather said: “Well, there is one thing about it, my will is exactly like your mother’s.” He further stated: “I don’t want any quibbling over any of this property like I had.”

It is to be noted that Mrs. Nichols’ will (Exhibit 1) was probated and, in fact, it left all of her property to her husband for his lifetime, with the remainder to go to W. V. Nichols, Jr. and Sam Petty in equal shares upon his death. The record also shows that a few days after the probation of Mrs. Nichols’ will, Mr. Nichols obtained his will from the lock box and went to a lawyer who drafted a new will for him. Mr. W. Y. Nichols, Jr., who accompanied his father to the lawyer’s office, stated that he did not know what his father did with the prior will but assumed that it was destroyed and ap-pellee testified that he had been unable to find out what had happened to Mr. Nichols Sr.’s prior will, although he made an effort to do so.

The second will of W. V. Nichols, (Ex. 2) left all of the real property to his son, W. V. Nichols, Jr., and wife.

It appears from said will that he attempted to leave the Hurricane Creek farm which had belonged to his wife, appellee’s mother, as a separate estate to his son, W. V. Nichols, Jr., and wife, even though he only had a life estate in it with the remainder being vested in W. Y. Nichols, Jr. and Sam Petty under the terms of her will.

It appears that the Kittrell farm which was in Mr. Nichols, Sr.’s name at the time of his death has an estimated value of $325,000.00 and that a substantial portion of the money to acquire and clear that farm came from the funds of Mrs. Nichols, mother of Sam Petty.

In addition to the testimony of appellee, there was other testimony, including that of Mary Louise Wiley, whose deposition was read and included in the record. She is a first cousin of appellee, Sam Petty, and a niece of appellee’s mother. She described her relationship with the family and stated that Sam Petty and his mother lived with her family for some time after Mr. Petty died.

She stated that her Aunt Pearl (Mrs. Nichols) and her mother discussed their wills in her presence and that her aunt stated that she wanted her property and that of Mr. Nichols divided equally, share and share alike, between her two sons, Bill and Sam. She testified:

“Q. What else did she say, if you remember?
A. Well, it was just — anyway, Mother and Daddy said that they had their wills just like Aunt Pearl and Vivian. And she left him everything she had, and he left her everything he had to be divided between Sam and Bill.
Q. Now, let me see if I understood your statement. I believe you said that Mrs. Nichols and Mr. Nichols stated, in talking to your parents and in your presence, that they wanted — they left their property to each other, and, then, at the death of the survivor, it would be divided equally between . . . Sam and Bill?
A. Equally between them.”

Responding now to the assignment charging that the above described testimony of Sam Petty was in violation of the “Dead Man’s Statute,” the ease of Baker v. Baker, 24 Tenn.App. 220, 142 S.W.2d 737 (1946), deals with the question of the admissibility of evidence under said statute and, among other things, the Court held:

“The statute concerning competency of parties to testify relative to statements by or transactions with testators in proceedings by or against an executor must be strictly construed as against exclusion of testimony and in favor of its admission.
“The statute concerning competency of parties to testify relative to statements by or transactions with a testator in proceedings by or against an executor does not contemplate a proceeding the result of which can neither increase nor diminish assets of an estate, but concerns only the manner in which the assets will be distributed.”

In Justine et a1. v. Henley et al., 27 TenmApp. 403, 181 S.W.2d 632 (1944), the Court held:

“An action by decedent’s heirs against his widow involving ownership of property as between the decedent and the widow was not an ‘action by or against executor or administrator’ within the statute prohibiting either party to such action from testifying against the other as to transaction with or statement by decedent, and it was not error to admit the testimony of the widow.”

It must be remembered that, in reference to the “Dead Man’s Statute,” it cannot apply to statements attributed to Mrs. Nichols since her will and her estate are not involved in this suit.

Under the authorities and for the reasons indicated, Assignment No. II is overruled.

Assignment No. IV charges error in refusing to direct a verdict, as requested by appellant, at the end of appellee’s proof and renewed at the conclusion of all of the proof on the ground that an alleged contract to make mutual wills cannot be established by parol evidence.

It is to be pointed out that the contract to make mutual wills sought to be enforced in the case at bar does not rest entirely on parol evidence. The first will of W. B. Nichols, Sr., as indicated by his statements to others, considered with the will of Mrs. Nichols which contained the provisions insisted upon by appellee and Mr. Nichols’ statement that his will was identical with hers, together with other circumstances shown, constitutes evidence to support the contention of appellee.

In Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d 53 (1928), our Supreme Court held that identical wills of four brothers and sisters, when viewed together in the light of the situation and circumstances of the parties at the time they were written, sufficed as the required note or memorandum of their contract to make mutual wills even though they did not recite that they were made in consideration for each other or refer in any way to an agreement to make mutual wills.

It is to be noted that in Harris, supra, the Court emphasized that the situation and circumstances of the parties may be examined to aid in arriving at the meaning of what they had written and that parol evidence was admissible to show that the wills were made in consideration of each other.

In Harris, supra, the Court quoted with approval from a decision of an Illinois Court dealing with a situation where two persons made wills, each devising his or her property to the other. The Court said:

“. . . Where the parties execute their wills by the same instrument, it is not possible that such course could be adopted without some previous understanding or agreement between them. Each would necessarily know what disposition the other had made of his property. This inference is especially strong where the parties are husband and wife and where they have a common interest in the welfare of the devisees. ... If evidence of a mutual compact is necessary in such case, that evidence is afforded by what the parties did. The fact that they made such will is satisfactory proof to our minds that it was done in accordance with their mutual compact to dispose of their property in this manner.”

The Opinion in Harris, further said:

“The four wills bearing the same date, each disposing of property to the survivors, and with the direction that such property be divided at the death of the survivor among the same persons, negative any conclusion but that they were executed pursuant to a joint compact or agreement, and that each was executed in consideration of the execution of the other three. No parol evidence would, therefore, be necessary to establish the fact of the compact or agreement. ‘The statute of frauds is, after all, merely a statute declaring that a certain kind of evidence is required to support an action in certain cases.’ Huffine v. McCamp-bell, 149 Tenn. 47, 48, 257 S.W. 80. We conclude, therefore, that the written will of each of the three defendants, considered in connection with the other three wills, constitutes written evidence of the contract between the parties, so that the contract does not rest entirely in parol. Huffine v. McCampbell, supra; Brewer v. Glass Casket Co., 139 Tenn. 97, 113, 201 S.W. 145.”

As was said in Corbin on Contracts, pp. 486-52, 1952 Ed.:

“Enforcement of a contract is not prevented by the fact that the written document has been lost or destroyed; its contents may then be proved by oral testimony.”

In 37 C.J.S. Statute of Frauds § 281, p. 809 it is said:

“The statute of frauds has not affected the best evidence rule as to proof of a writing . . . . Accordingly, if a writing evidencing the contract is lost or destroyed, its execution, its subsequent loss or destruction, as well as its contents may be shown by parol . . . .”

For the reasons indicated, Assignment No. IV is overruled.

Assignment No. V charges error in refusing to charge the jury on certain special instructions tendered by the appellant.

While the special instructions are included in the brief and argument of counsel, we do not find them in the Bill of Exceptions and it does not appear that said special requests were offered at the conclusion of the regular charge. The record only discloses that the Trial Judge, after examining certain special requests and, apparently, prior to his delivering the main charge, stated that he would not charge these special requests which are not included in the record.

It results that Assignment No. V is overruled.

Assignment No. VI is as follows:

“The Court erred in its charge to the jury resulting in a general verdict for the claimant-appellee rather than requiring the jury to make the following specific findings of fact:
(1) Was there a contract to make mutual wills?
(2) If so, what were the terms and subject matter of such an agreement?
(3) Were wills executed pursuant to such a contract?
(4) The contents of W. V. Nichols’ prior will, i. e., were the contents of W. V. Nichols’ prior will as alleged by the appellee?”

The action of the Court with respect to requiring the jury to make special and specific findings of fact is a matter that addresses itself to the sound discretion of the Trial Judge and we find no abuses of discretion in the action of the Trial Judge complained of in said assignment.

It results that Assignment No. VI is overruled.

The single assignment filed by the appel-lee was disposed of in the action dealing with the Bill of Exceptions.

We are impressed that there is ample evidence to support the verdict and judgment; therefore, all assignments having been overruled, it results that the judgment of the Trial Court is affirmed.

AFFIRMED.

TODD and DROWOTA, JJ., concur.


text:
    TOWN OF ALGOOD, Tennessee, Plaintiff-App ellant, v. MID-SOUTH PAVERS, INC., Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    March 31, 1978.
    Certiorari Denied by Supreme Court Aug. 21, 1978.
    H. Marshall Judd, Cookeville, for plaintiff-appellant.
    W. Lee Corbett, Ingraham, Young & Cor-bett, Nashville, for defendant-appellee.
   OPINION

DROWOTA, Judge.

This is a suit by the Town of Algood to collect taxes allegedly owed by defendant, Mid-South Pavers, Inc.; under the Business Tax Act, T.C.A. § 67-5801 et seq. At the heart of the dispute is T.C.A. § 67-5812(b), which provides an exemption from the Act to persons primarily engaged in the manufacture of articles of value “from a location or outlet subject to ad valorem taxation under the provisions of Chapter 6” of Title 67 of the Code. Plaintiff argues that defendant is not entitled to the exemption because the articles sold by defendant are exempt from ad valorem taxation, while defendant claims that the exemption applies as long as the outlet from which the articles are sold is subject to the ad valorem tax on other items of its property. We agree with defendant, and affirm the judgment of the Chancellor in its favor.

The facts of the case have been stipulated by the parties.

Plaintiff is a municipal corporation that has adopted the Business Tax Act. Defendant, a manufacturer and processor of crushed stone and stone products, is an Indiana corporation licensed to do business in Tennessee. It maintains offices in Nashville and in Algood, Tennessee. Defendant also maintains a quarry and crushing plant in an area that, on October 15, 1974, was annexed into plaintiffs corporate limits.

Defendant sells at retail crushed stone and crushed stone products from its Algood facility. All products sold from the Algood facility are also manufactured there.

In 1974, plaintiff for the first time mailed to defendant forms for reporting under the Business Tax Act. Defendant completed the forms and paid business taxes allegedly owed for the years 1971 through 1973. Early in 1975, plaintiff mailed defendant a statement for penalties allegedly due and resulting from failure to pay business taxes for the years 1971 through 1973. Defendant then wrote plaintiff, advising plaintiff that defendant was claiming an exemption from the Business Tax Act and requesting refund of the taxes previously paid.

Finally, it is stipulated that defendant’s trucks and equipment have been assessed for personal property ad valorem taxes for the year 1970 through the present time, while defendant’s inventory of crushed stone has not been assessed for personal property ad valorem taxes.

On March 22, 1976, plaintiff filed the instant suit in Putnam County Chancery Court to collect unpaid interest, penalty, and tax allegedly owed by defendant under the Business Tax Act for the years 1971 through 1975. In its answer, defendant asserted that, under T.C.A. § 67-5812(b), it was exempt from the business taxes claimed. Defendant also filed a counterclaim for the business taxes it had already paid. Both plaintiff and defendant moved for summary judgment. Affidavits were submitted, and the facts were stipulated as summarized above. The Chancellor held that defendant was subject to ad valorem taxation and so exempt from the business tax, and dismissed plaintiff’s claim. Defendant’s counterclaim was also dismissed, on the ground that defendant had not paid the business taxes under protest. An order dismissing both the claim and the counterclaim was entered on May 12, 1977.

Plaintiff, alleging that it was error to hold defendant exempt from the Business Tax Act under § 67-5812(b), has appealed from the Chancellor’s order. Defendant has not appealed from dismissal of its counterclaim.

In general, all real and personal property is required to be assessed for taxation. T.C.A. § 67-401. The tax so assessed is a tax on the property itself and is often referred to as an “ad valorem” tax, meaning a tax “according to the value” of the property. Property is classified and assessed in Chapter 6 of Title 67. Exemptions from the property tax are set out in Chapter 5, T.C.A. §§ 67-501 through 67-517. The last of these exemptions is pertinent here, and reads in part as follows:

67-517. Growing crops. — All growing crops of whatever kind, including but not limited to, timber, nursery stock, shrubs, flowers, and ornamental trees, the direct product of the soil of this state or any other state of the union, in the hands of the producer or his immediate vendee, and articles manufactured from the produce of this state, or any other state of the union, in the hands of the manufacturer, shall be exempt from taxation.

The language “the direct product of the soil . in the hands of the producer” is identical to that found in Article 2, § 28 of the Tennessee Constitution. The exemption for “articles manufactured from the produce of this state” accords with Article 2, § 30, which provides that “[n]o article manufactured of the produce of this State, shall be taxed otherwise than to pay inspection fees.”

Both plaintiff and defendant assert that defendant’s inventory of crushed stone itself is exempt, in defendant’s hands, from ad valorem taxation both as a direct product of the soil in the hands of the producer and as an article manufactured from the produce of the state in the hands of the manufacturer. The parties appear to be correct, in view of the broad interpretation given these and similar exemptions by Tennessee courts in the past. See, e. g., Tennessee Products & Chemical Corporation v. Taylor, 190 Tenn. 130, 228 S.W.2d 87 (1950); Benedict v. Davidson County, 110 Tenn. 183, 67 S.W. 806 (1902). For purposes of this opinion, then, we assume that defendant’s inventory of crushed stone is entitled to one or both of these exemptions from ad valorem tax.

Unlike the ad valorem tax on property, the business tax is a tax on the privilege of making “sales by engaging in any business activity enumerated . . . .” T.C.A. § 67-5802. The distinction is that “[a]d valorem taxes are imposed directly upon property and the tax follows the property into any hands that it may pass” into, while a privilege tax “is imposed upon persons or businesses engaged in doing some specific act.” Tennessee Trailways, Inc. v. Butler, 213 Tenn. 136, 373 S.W .2d 201 (1963). In enacting the Business Tax Act, the legislature declared its intent that the taxes imposed by the Act “shall be in lieu of any or all ad valorem taxes on the inventories of merchandise held for sale or exchange by persons taxable under this chapter.” T.C.A. § 67-5801. In § 67-5805, taxable businesses are classified according to the type of property they are engaged in selling. In the instant case, plaintiff argues that defendant’s sales of crushed stone place it in Classification 2(f), covering persons in the business of selling “[tjangible personal property not specifically enumerated or described elsewhere in this chapter.” For purposes of this opinion, we may assume that defendant’s sales of crushed stone would put it in this classification if it could find no exemption from the business tax.

The exemption claimed by defendant is found in § 67-5812(b), as follows:

67-5812. Exempt entities. — This chapter shall not apply to the following persons in the circumstances indicated:
(b) Any person primarily engaged in the manufacture of goods, wares, merchandise or other articles of value from a location or outlet subject to ad valorem taxation under the provisions of chapter 6 of this title.

This exemption has been interpreted in Rule 29 of the Business Tax Rules and Regulations, also found as Rule 1320-4-5-29 of the Rules and Regulations of the State of Tennessee. Made a part of the record in the instant case, Rule 29 reads in pertinent part as follows:

(c) Sales of tangible personal property manufactured or processed by a manufacturer or processor who is subject to the ad valorem tax under Chapter 7 of Title 67, T.C.A., are exempt from the Business Tax if made at the manufacturing or processing location within this state. Sales of such property which are not manufactured or processed by a manufacturer or processor but which are incidental to the operation of such manufacturer or processor are also exempt from the Business Tax if made at the manufacturing or processing location or outlet that is subject to the ad valorem tax under provisions of said Chapter.

The affidavit of the Chief of the Gross Receipts and Privilege Tax Section of the Tennessee Department of Revenue is to the effect that the former provisions of Chapter 7 of Title 67 dealing with the ad valorem tax on manufacturers have been repealed, that that subject is now covered by Chapter 6 of Title 67, and that Rule 29(c) now applies to manufacturers subject to ad valo-rem tax under Chapter 6. Since T.C.A. § 67-5822 gives rules promulgated by the Commissioner of Revenue the force of law if they are consistent with the statute, and since neither party challenges Rule 29, we may accept it as valid in the instant case.

We conclude that defendant is entitled to the business tax exemption of T.C.A. § 67-5812(b) with regard to its sales of crushed stone from its Algood processing plant, regardless of the probability that the crushed stone itself is exempt in defendant’s hands from the ad valorem tax imposed by Chapter 6 of Title 67.

Defendant, in selling crushed stone from its Algood facility, meets all of the criteria of § 67-5812(b) as interpreted by Rule 29(c). It is “primarily engaged in the manufacture of articles of value,” crushed stone. Its sales of the stone are made at the processing location within this state. Further, this location is “subject to ad valo-rem taxation under the provisions of chapter 6” of Title 67, since it is stipulated that defendant has been reporting and paying taxes on its trucks and equipment as required by § 67-620. Having met these criteria, defendant is entitled to the § 67-5812(b) exemption.

Against our conclusion and the supporting reasoning just stated, plaintiff argues basically that defendant should not receive the § 67-5812(b) exemption for sales of its crushed stone because the stone itself is not subject to ad valorem tax under Chapter 6 of Title 67. This argument overlooks the plain meaning of § 67-5812(b), which refers to sales “from a location or outlet subject to ad valorem taxation . . . ” (emphasis added). The exemption is granted if the facility from which the sales are made is subject to ad valorem taxation, and it does not require that the articles sold be subject to such taxation. Indeed, articles sold in the circumstances contemplated by § 67-5812(b) would rarely be subject to ad valo-rem taxation because of the broad exemption for manufactured articles in the hands of the manufacturer, set forth in Article 2, § 30 of the Tennessée Constitution and, in even broader terms, in T.C.A. § 67-517. It is highly unlikely that the legislature would create an exemption to the business tax for manufacturers selling manufactured articles subject to ad valorem taxation when it knew that, in most if not all cases, such articles would not be subject to ad valorem taxation and that, consequently, the business tax exemption would rarely if ever apply.

In any case, it would be absurd to interpret § 67-5812(b) as conferring the business tax exemption only when the articles sold are subject to ad valorem taxation when the section’s plain meaning is that only the manufacturer’s “location or outlet” need be so subject. This construction of § 67— 5812(b) is supported not only be common sense and logic, but by the interpretation given the exemption in Rule 29(c), which speaks of sales “by a manufacturer or processor who is subject to the ad valorem tax . ” (emphasis added). Since defendant is subject to ad valorem tax on its equipment and trucks at the Algood plant at which the crushed stone is manufactured and from which it is sold, and since it otherwise meets the criteria for a § 67-5812(b) exemption from the business tax, defendant’s claim for that exemption must be upheld.

It follows that the Chancellor was correct in holding defendant exempt from the taxes sought to be collected and in dismissing plaintiff’s suit therefor. His judgment is affirmed.

Affirmed.

SHRIVER, P. J., and TODD, J., concur.


author: TODD, Judge.

text:
    Herschel COOPER d/b/a Cooper Electric Company, Plaintiff-Appellee, v. Thomas W. HUNTER, George Patton Builders, Inc., Citizens Central Bank, and the Southern Corporation, Defendants-Appellants.
    Court of Appeals of Tennessee, Middle Section.
    March 31, 1978.
    Certiorari Denied by Supreme Court Aug. 28, 1978.
    Charles Patrick Flynn, Nashville, for plaintiff-appellee.
    Richard F. LaRoche, Jr., Murfreesboro, for defendants-appellants.
   OPINION

TODD, Judge.

With the concurrence of participating judges, .the original opinion has been abridged for publication.

The defendant, Thomas W. Hunter, has appealed from the Chancellor’s decree upholding plaintiff’s lien claim for labor and materials and ordering the interest of appellant in certain realty sold to satisfy the lien.

Other defendants are not before this Court on appeal.

There are three assignments of error, of which the first and third are as follows:

“ONE: The lower Court erred in overruling your defendant’s Motion to Dismiss for failure to file the Notice of Lien within ninety days of the date of the last work.
THREE: The lower Court erred in holding that the preponderance of the evidence established that the subcontractor’s work was not ‘substantially completed’ until the electrical inspection was passed.”

In November, 1973, Thomas W. Hunter and wife, June Hunter, obtained title to the tract of land in question.

On February 21, 1974, Mr. and Mrs. Hunter agreed to lease to The Southland Corporation a store building to be constructed on the land.

On April 3, 1974, Mr. Hunter contracted with George Patton Builders, Inc., as general contractor to construct the required building.

At some time thereafter, Patton employed plaintiff as subcontractor to furnish the necessary materials and labor for completion of the electrical facilities of the building.

Plaintiff began work on May 31, 1974. The date of his last work is at issue.

In the middle of September, 1974, the building was substantially complete, Hunter paid the general contractor in full, and the tenant started paying rent.

Plaintiff testified that his work was 99.9% complete on October 26. On October 31, the city electrical inspector refused to approve the electrical work because of minor deficiencies therein which he listed as follows:

“a) Failure to install two connectors in the grounding area for each outlet;
b) The switch must be properly attached to the building (locknuts need to be tightened) and groundwires need to be moved;
c) The contents of the electrical box were mislabeled.”

On November 19, 1974, the electrical work was again inspected and approved.

On January 27,1975, plaintiff filed in the Register’s office of Rutherford County a “Notice of Furnisher’s Lien” claiming a lien against the subject property (described as property of Mr. and Mrs. Hunter). Said notice contains the following statement:

“Said lien is to secure the payment of the sum of $3,750.00 for labor and materials furnished to George Patton Builders, Inc., in the making of improvements to the above described property which said labor and materials were furnished and used under a contract with George Patton Builders, Inc. through October 26, 1974.”

On April 25, 1975, plaintiff filed his complaint alleging:

“The last materials furnished and work performed was October 26, 1974.”

On September 29, 1976, plaintiff filed an amended complaint stating:

“The last material furnished and work performed was January 13, 1975.”

Defendant moved to dismiss because both owners of the property were not included in the suit and answered that timely notice of lien was not given as required by law.

As stated, the Chancellor sustained a lien in favor of plaintiff and against only the interest of Mr. Hunter in the property.

The plaintiff’s “Notice of Furnisher’s Lien” stated the last work was done on October 26, 1974. His complaint, filed on April 25, 1975, contained the same statement. On September 29, 1976, 17 months after filing his complaint, plaintiff finally filed an amended complaint changing the date of last labor from October 26, 1974, to January 13, 1975.

The Chancellor would have been more than justified in refusing to allow the amendment at so late a date under the circumstances.

This Court has difficulty in agreeing with the Chancellor’s finding of fact (that the notice given on January 27,1975, was within 90 days of completion of plaintiff’s contract).

On the subject of the date of last work, the evidence is as follows:

1. Plaintiff, himself, admitted in his complaint that the last work was October 26, 1974. Such admission was a formal, judicial admission for 17 months, and ceased to be such only when amended by leave of the Chancellor; but even after amendment, the original complaint remains as an informal, evidentiary admission. Raines v. Jones, 23 Tenn. (4 Humph.) 490 (1844); McEwen v. Jenks, 74 Tenn. (6 Lea) 289 (1880); Hewgley v. General Motors Acceptance Corp., 39 Tenn.App. 553, 286 S.W.2d 355 (1956).
2. The plaintiff subsequently testified that he had “discovered” a work record for January 13,1975, which is not exhibited to the record. The only written evidence in this regard is an informal list of days worked with number of men working and number of hours worked. The list is entirely in blue ink except the last two items, which are in black ink. They are,
10-26 2 men 8 hours.
1-13 2 men 3 hours.
Said list of items is of very doubtful admissibility as a business record and of doubtful credibility under the circumstances.
3. The testimony and record of the electrical inspector, Eubanks, indicates that he refused final approval on October 31, 1974; that another permit was purchased by plaintiff on November 5, 1974; and that the work was again inspected and finally approved on November 19, 1974.- Obviously, if any work was done by plaintiff after October 31,1974, it was done after the issuance of the new permit on November 2 and before final approval on November 19.
4. The nature of the work done after October 26, 1974, is uncertain. The best evidence of same is the testimony of the inspector that two connectors were missing, locknuts needed to be tightened, ground connections in the switch box should be moved, and labeling needed correction.
5.Plaintiff, himself, testified that his work was 999/io% complete on October 26, 1974. This percentage is superior to the well known advertisement of “9944/ioo% pure.”

In recognition of the general rule that credibility is for the Trial Judge, this Court will not revise the obvious finding of the Chancellor that the electrical inspector was mistaken and plaintiff’s belated “discovery” of a work sheet represented the true facts.

Nevertheless, plaintiff must fail because of his uncontroverted and conclusive admission under oath that on October 26, 1974, his work was 999/io% complete, and the uncontradicted evidence that, as of October 26, 1974, the building had been accepted, paid for and put to use by the owners.

In Dunn v. McKee, 37 Tenn. (5 Sneed) 657 (1858) the Supreme Court held that a return to repair a leak in a roof for which no further charge was made did not extend.the time for enforcement of the lien.

In Luter v. Cobb, 41 Tenn. (1 Coldw.) 527 (1869), the Supreme Court disallowed a lien and stated:

“Upon the foregoing facts, we feel constrained to reverse the decree. From the whole record we are led to the conclusion that the contract was regarded by both parties as complete and the work finished in the fall of 1856, when McReynolds & Co. took possession of the house. And that the trifling work was done in the fall of 1858, and spring of 1858, was an afterthought to give color to the lien set up in the bill.” 41 Tenn., p. 527

In Wood v. Haney, Tenn.Ch.App., 1897, 41 S.W. 1072, the lien claim was disallowed and the Court said:

“. . . Wood sent a couple of men up to the house, who did a small amount of work, the weight of the proof indicating that it was putting on a skim coat of plaster or white coat of plaster on one little room, which both Haney and Wood claim that he was liable to do under the original contract. ... we are satisfied and find that this was a mere pretense — an afterthought — for the purpose of reviving a lien which had long been lost and abandoned.” 41 S.W. p. 1073.

In East Lake Lumber Box Co. v. Simpson, 5 TenmApp. 51 (1927), this Court affirmed the Chancellor’s decree' denying a lien and said:

“A lien cannot be revived or effected by the doing of an insignificant act not originally contemplated, where it is so insignificant as to form no part of the original conception, such as the making good of trifling defects, (citing authorities)” 5 Tenn.App., p. 57.

From the foregoing, this Court is satisfied that, on October 26, 1974, plaintiff’s work was “substantially completed.” The plaintiff admits such in his sworn testimony; and, the fact that the work was inspected on October 31, 1974, is evidence that plaintiff considered his work to be completed, and so requested final inspection.

If plaintiff had sued without making the necessary adjustments and if defendant had plead failure to complete as a total defense, plaintiff would have relied, correctly, upon the doctrine of substantial completion.

Mere trivial imperfections, requiring corrective adjustments do not prevent a construction project from being “substantially complete” for lien purposes, and the correction of such imperfections is not a “furnishing of labor or materials” for which a charge may be made or a lien claimed.

Minor imperfections disclosed by the inspection of a public inspector will not toll the running of time for perfecting a lien. This is especially so when, as in the present ease, the owner had no knowledge of the alleged imperfections and did not demand their correction.

The second assignment of error complains of the failure to join in this action the wife of the defendant who was a joint owner of the property. This assignment of error is overruled for the reason that the Chancellor’s decree deals only with the interest of the named defendant (Mr. Hunter), and the unnamed defendant (Mrs. Hunter) may not be disturbed in her enjoyment of the property by virtue of this action. Robinson v. Trousdale County, Tenn. 1974, 516 S.W.2d 626.

Appellant also insists that plaintiff cannot prevail because the general contractor was not joined in this action. It appears that the general contractor was sued, but process was never served upon him.

East Lake Lbr. Box Co. v. Simpson, supra, and Jordan v. Dietz, 201 Tenn. 77, 296 S.W.2d 866 (1956) seem to support appellant’s insistence, but the rule announced in said authorities was based upon the former text of T.C.A. § 64-1126, which expressly required that process in lien actions be served upon the general contractor. The statute now requires only “making necessary parties defendant.” “Necessary parties” are those parties against whom plaintiff seeks relief. The present text of the statute removes the harsh, arbitrary requirement of the former text that the general contractor be served with process whether or not relief was sought against him.

The decree of the Chancellor is reversed and plaintiff’s suit is dismissed. All costs, including costs of this appeal, are taxed against plaintiff-appellee.

Reversed and dismissed.

SHRIVER, P. J., and DROWOTA, J., concur.


author: NEARN, Judge.

text:
    Clyde W. BREWER, and wife, Martha Brewer, Appellees, v. Millard LAWSON, and wife, Marie Lawson, Appellants.
    Court of Appeals of Tennessee, Western Section Sitting at Knoxville.
    March 31, 1978.
    Certiorari Denied by Supreme Court Aug. 21, 1978.

      John H. Dinwiddie, Cleveland, for appellants.
    James F. Logan, Jr., Cleveland, for appel-lees.
   NEARN, Judge.

The Brewers filed suit in the Chancery Court of Bradley County to quiet title and correct a deed description. The Chancellor found for plaintiffs and defendants appeal.

On January 28, 1950, plaintiffs Clyde W. Brewer and wife Martha Brewer purchased from Oscar Cartwright “33 acres, more or less” in Bradley County bounded on the north by the lands of John Lawson. In April of 1970 defendant Millard Lee Lawson purchased through the Chancery Court of Bradley County that portion of the John Lawson land that lay to the north of Brewer.

In December of 1971 Millard Lawson sold off timber rights on the land acquired in April 1970 to a timber company by timber deed. The timber deed used the description contained in the Chancery Decree to Millard Lawson. The timber company began to cut timber. Millard Lawson, Clyde Brewer, and a representative of the timber company met on the spot after most of the cutting was completed. Both Brewer and Lawson agreed that the timber company was cutting timber on Brewer’s land. It was then discovered the Chancery Decree description to Lawson was erroneous. The timber company continued cutting. Brewer asked for a deed from Lawson for that portion of Brewer’s land contained in the Chancery Decree. Lawson refused. Lawson also refused to give to Brewer a pro rata share of the timber cutting proceeds. This suit is the result of those refusals.

The Lawsons charge the Chancellor with error in correcting the description and awarding the Brewers $1,000 as the value of their timber because (1) a trustee named in a trust deed securing a note executed by the Lawsons and placed upon the tract subsequent to their purchase was not named as a party; (2) the plaintiffs are barred by the doctrine of estoppel; (3) an award of $1,000 to plaintiff for cut timber would have the effect of voiding the Chancery proceeding; (4) the Chancellor incorrectly assessed the testimony and failed to permit the defendant to change his testimony after trial.

A trustee named in a trust deed is a proper party to a suit involving lands subject to the trust indenture. A proper party is not the same as a necessary or indispensable party. Only a party who will be directly affected by a decree and whose interest is not represented by any other party to the litigation is an indispensable or necessary party, that is, one without which no valid decree may be entered settling the rights between the parties that are before the Court. The failure to include the mortgagee or the trustee under a trust deed is not fatal to plaintiffs’ action against the defendant. Campbell v. Miller, 562 S.W.2d 827 (Shriver, Court of Appeals Middle Section, filed August 26, 1977; certiorari denied, October 17, 1977).

The first Assignment of Error is overruled.

A few more facts need be brought out for an understanding of our treatment of the matter of estoppel.

Mrs. Brewer is a sister of Mr. Millard Lawson. Both Mrs. Brewer and Millard Lawson had inherited interest in the lands of John Lawson. Mrs. Brewer and her sister were the plaintiffs in the Chancery Court action to have the John Lawson land sold for partition. Millard Lawson was one of the defendants. We are able to glean from this record that the plaintiffs in the partition suit, Mrs. Brewer being one of them, engaged the services of a surveyor to have the lands of John Lawson surveyed in preparation for the sale. Mrs. Brewer met with the surveyor in the partition suit on the John Lawson land and described and pointed out to him where the lines were generally located. One line was described to the surveyor as going up over the hill and back to a fence. Mrs. Brewer and the surveyor did not at that time walk to the mentioned fence. The trouble is that there were two fences and the proof is absolutely overwhelming, if not actually admitted, that the surveyor, when he walked it alone making his survey, went to the wrong fence. The result was that the description and plat furnished the Chancery Court was in error in that it described 6.7 acres of the Brewers’ land as that of John Lawson. When Millard Lawson bid the property in the sale, the Clerk and Master’s deed contained the erroneous description. From these facts counsel for defendant argues that since Mrs. Brewer was a plaintiff in the partition suit and she, through her attorney, approved the partition description, she and her husband are estopped to deny the correctness of it.

The argument suffers from at least two fatal defects. The first is that Mr. Brewer was not a.party to the partition suit and would not be bound by any estoppel in this case, even if the doctrine were applicable.

The application of the doctrine of estoppel requires on the part of claimant (a) lack of knowledge without fault of the true facts, (b) reliance upon the untrue facts, and (c) action based on the untrue statement or misrepresentation. McClure v. Wade (1950 E.S.) 34 Tenn.App. 154, 235 S.W.2d 835; Duke v. Hopper (1972 Tenn. App., W.S.) 486 S.W.2d 744. From the proof in this case it can fairly be said that Millard Lawson had no knowledge that the description contained in the Chancery Court partition decree was erroneous. However, it can be just as fairly said that he made absolutely no reliance upon the description contained in that deed. Both Millard Lawson and Mrs. Brewer were well aware of the real boundary lines of the Lawson land as it contained the old Lawson homeplace which Millard desired to purchase. He knew the shape on the ground of the land he purchased and knew where its corners were located. In fact, from the record it appears that everyone now practically agrees about the physical location of defendants’ land. The partition deed to defendants contains no statement regarding the amount of acreage conveyed and defendant testified that he did not rely upon the erroneous survey in purchasing his property. Therefore neither reliance nor action based thereon is present and as to the land conveyed there can be no application of the doctrine of estoppel. The second Assignment of Error is overruled.

We cannot help but observe that it appears to us that, to a large extent, the hard feelings now existing between the parties has come about because of misunderstandings. In defendant’s testimony it is evident that whenever the word “error” was used his hackles raised, so to speak, and he immediately made it known that there was no error involved. The reading of his entire testimony indicates that he thought he was being accused of having made an error in the transaction and wanted everyone to know he made no error. He was quick to say he had nothing to do with the surveyor or the stakes and could see no fairness in his being brought into court when he had made no mistake or error.

We believe there is some merit to the third Assignment of Error regarding damages.

The proof is that Millard Lawson sold timber based on the erroneous description furnished him in the partition suit. He did not know at the time of execution of the timber deed that the description was incorrect and thought what he was conveying was what he thought he had purchased in the partition suit. He did not become aware that the timber deed was incorrect until he observed the timber company cutting timber on what he knew was the Brewers’ land and was land which he had not intended to purchase in the partition suit nor land from which he intended to sell timber. When he sold the timber to the timber cutter he was under the impression that he was selling only his own timber for the agreed upon price. As it turns out, he sold other than his own through no fault of his own. To require the defendant to reimburse the plaintiffs for the full value of plaintiffs’ timber will result in the defendant receiving less value for his own timber than that for which he agreed to sell. Defendant intended only to sell what was his for $1,500 and he knew where his timber lay. If he is to pay $1,000 to plaintiff he will only receive $500 for the same timber he intended to bargain for for $1,500. We find that this inequity did not come about because of any act of the defendant. This came about because of the error made by the surveyor hired by Mrs. Brewer and approved by Mrs. Brewer in the partition suit. As tenant by the entirety Mrs. Brewer would be entitled to $500 of the $1,000 judgment ordered by the Chancellor. The other $500 is the property of her husband. The money judgment is divisible even though the property is held by the entirety. Robinson v. Trousdale County (1974 Tenn.) 516 S.W.2d 626. Therefore, we believe equity is best served by reducing the judgment below to $500 and in favor of Mr. Brewer only.

Accordingly, the third Assignment of Error is in part sustained.

In reviewing the proof as required by T.C.A. § 27-303, we do not find that the proof preponderates against the Chancellor’s finding of fact for it is what we have also concluded and above recited. Neither do we find that the Chancellor abused his discretion in refusing to permit defendant to reopen the case and impeach his own testimony. The fourth Assignment of Error is overruled.

The result is that a decree shall be entered in this Court in conformity with this Opinion and remanded to the Trial Court for execution if necessary. Such judgment shall not bind the rights of any mortgagee or trustee for same not named as a Party hereto which rights were created subsequent to the partition sale and prior to the filing of this suit.

The cost of appeal is to be assessed equally between the parties and execution for same shall issue from this Court if necessary.

So ordered.

Honorable LLOYD TATUM, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Judge PAUL R. SUMMERS.

Done at Knoxville in the two hundred and second year of our Independence and in the one hundred and eighty-third year of our Statehood.

MATHERNE, J., and LLOYD TATUM, Special Judge, concur.


author: TATUM, Judge.

text:
    Chester V. MONROE, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 28, 1978.
    Certiorari Denied by Supreme Court Aug. 14, 1978.
    Roger D. Moore and Walter C. Kurtz, Knoxville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., and James R. Dedrick, Asst. Dist. Atty. Gen., Knoxville, for appellee.
   OPINION

TATUM, Judge.

The appellant, Chester V. Monroe, has appealed from the judgment of the Criminal Court of Knox County denying him post-conviction relief without an evidentia-ry hearing. The judgment is reversed.

After the State filed a proceeding against the appellant under the Motor Vehicle Habitual Offenders Act (T.C.A. §§ 59-2101— 59-2117), the appellant filed a petition for post-conviction relief. He charges that a judgment of conviction on his guilty plea for driving while intoxicated is void because his waiver of an attorney and to a jury trial was not knowingly, intelligently and voluntarily given.

In Everhart v. State of Tennessee, Tenn. Cr.App., 563 S.W.2d 795, filed January 10, 1978 at Knoxville, this court held that a collateral attack upon the validity of a conviction is impermissible in a proceeding to revoke driving privileges under the Motor Vehicle Habitual Offenders Act. This court further held that the Post-Conviction Relief Act (T.C.A. § 40-3801 et seq.) is available for the purpose of attacking the validity of a judgment. Also see State v. McCraw, 551 S.W.2d 692 (Tenn.1977); Holt v. State, 489 S.W.2d 845, 847 (Tenn.Cr.App.1972); Daugherty v. State, 4 Tenn.Cr.App. 355, 470 S.W.2d 865 (1971).

It was the contention of the State in the Criminal Court that since the appellant had paid his $50.00 fine and served his 24 hours jail sentence, the question of the validity of the judgment is now moot. It is true that a conviction for driving while intoxicated cannot render a party infamous, enhance punishment under the Habitual Criminal Act, jeopardize his right to vote or otherwise affect his civil rights. The only possible legal consequence of the conviction is to contribute to his loss of driving privileges, but this is sufficient to entitle the appellant to seek destruction of the conviction under the Post-Conviction Relief Act. State v. McCraw, supra.

In Everhart v. State, we held that a proceeding under the Motor Vehicle Habitual Offenders Act is civil in nature and not criminal. Therefore, a defendant is not entitled to the constitutional safeguards in a proceeding under the Motor Vehicle Habitual Offenders Act to which he is entitled in a criminal case. This is also true in a post-conviction relief proceeding filed for the sole purpose of aiding the defense in a proceeding under the Motor Vehicle Habitual Offenders Act.

The motion of the appellant to consolidate this case with CCA Number 485 is denied.

The judgment of the Criminal Court is reversed and the case is remanded to the Criminal Court of Knox County for an evi-dentiary hearing on the petition.

WALKER, J., and SAM LEWIS, Special Judge, concur.


text:
    Woodrow HOWARD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 18, 1978.
    Certiorari Denied by Supreme Court Aug. 7, 1978.

      Edward G. Thompson, Public Defender, A. Kemp Stallings and William C. Moore, Asst. Public Defenders, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, Richard S. McNeese, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

Woodrow Howard appeals from a judgment finding him guilty of fraudulent use of a credit card (T.C.A. § 39-1954), with a penitentiary sentence of three years. He makes no question concerning the sufficiency of the evidence or the conduct of trial. His assignments of error attack the constitutionality of T.C.A. § 39-1954 and the Trial Judge’s instructions to the jury. The assignments are without merit.

The appellant did not testify and introduced no evidence, leaving the State’s proof uncontradicted.. A purse of Mrs. Jerry W. Hitchcock, containing her BankAmericard, was stolen at a bowling alley. She immediately reported the theft to the police and also to the bank that issued the card. The next day, the appellant entered a clothing store and after selecting about $130 worth of merchandise, presented the stolen Bank-Americard. The store clerk telephoned BankAmericard for authorization of the sale and determined that the credit card was stolen. When she informed appellant, he said that his wife’s BankAmericard had been stolen about two weeks previous. The appellant made a telephone call, then took the credit card and left the store, leaving the merchandise he had selected for purchase.

The appellant first urges that the penalty provision of T.C.A. § 39-1954 is unconstitutionally vague. The offense was originally created by § 5 of Chapter 68 of the Public Acts of 1961, which characterized the prohibited acts as misdemeanors. The 1961 Act was amended by Chapter 583 of the Public Acts of 1968, which was captioned “AN ACT to amend Section 39-1951 of Tennessee Code Annotated, relating to the penalty for obtaining goods, property or service by false or fraudulent use of credit cards.” T.C.A. § 39-1951 is currently codified as Section 39-1954, as follows:

39-1954. Credit cards — Obtaining goods, property or service by false or fraudulent use — Penalty.—It shall be unlawful for any person knowingly to obtain or attempt to obtain credit, or to purchase or attempt to purchase any goods, property or service, by the use of any false, altered, forged, fictitious, counterfeit or expired credit card, telephone number, credit number or other credit device, or by the use of any credit card, telephone number, credit number or other credit device of another without the authority of the person to whom such card, number or device was issued, or by the use of any credit card, telephone number, credit number or other credit device in any case where such card, number or device has been revoked and notice of revocation has been given to the person to whom issued. The word “notice” as used herein shall be construed to include either notice given to the purchaser in person or notice given to him in writing. Such notice in writing shall be conclusively presumed to have been given when deposited, as registered or certified matter, in the United States mail, addressed to such person at his address as it appears in the files of the issuer of the credit card. Any person violating the provisions of this section shall be guilty of a felony and shall be punished as in the case of larceny.

As codified, the penalty provision of the statute is not vague; it is plain, clear and unambiguous. The appellant urges that the caption of the 1968 enactment, created vagueness which renders the Act unconstitutional! We cannot consider the captions of the 1961 Act or the amending 1968 Act in a search for vagueness, as we must consider the statute as codified, for the reasons stated in considering the next argument of the appellant.

The appellant urges that Chapter 583 of the Public Acts of 1968, which amended Section 5, Chapter 68 of the Public Acts of 1961, is unconstitutional because the body of the 1968 Act is broader than its caption, thus violating Article II, Section 17 of the Tennessee Constitution.

We note that the 1961 Act denounced the fraudulent use of a credit card in “obtaining or attempting to obtain credit, goods, property.” As stated, the 1968 Act made its violation a felony and provided that it be punishable as in the case of larceny. The caption of the 1968 Act did not use the phrase “attempting to obtain_” and it is for this reason that the appellant insists that the 1968 statute is unconstitutionally broader than its caption. The appellant relies upon Farris v. State, 535 S.W.2d 608 (Tenn.1976), and State v. Hailey, 505 S.W.2d 712 (Tenn.1974).

The State’s theory is that once an Act is codified, it becomes valid law, and applies to the commission of subsequent crimes regardless of the nature of the legislative acts from which the code section was derived. The State insists that once a legislative act is embodied in the official code, all infirmities in the caption of the legislative enactment are cured and questions concerning a defective caption of the Act become irrelevant. In support of its theory, the State cites Keaton v. State, 212 Tenn. 690, 372 S.W.2d 163 (1963); McClellan v. State, 199 Tenn. 60, 282 S.W.2d 631 (1955); Doughty v. Hammond, 207 Tenn. 545, 341 S.W.2d 713 (1960).

The distinction in the cases cited by the State and in those cited by the appellant is that in the former, the legislative enactments involved had been officially codified before any constitutional question arose, while in the latter, the codification occurred after the constitutional question had been raised. In the Farris and Hailey cases, the Public Acts involved had not been healed by codification. On the other hand, in Keaton, McClellan and Doughty, the Acts considered had been codified.

The offense in the instant case was committed in 1977, long after the 1968 amendment, to which objection is made, became a part of Tennessee Code Annotated as § 39-1954, by reason of Chapter 1 of the Public Acts of 1969. We therefore hold that any defect in the caption of the 1968 Act was cured by codification. We also hold that T.C.A. § 39-1954, as codified, is not unconstitutionally vague with respect to its penal provisions.

Finally, the appellant insists that the Trial Judge erred in refusing to charge the jury with the offense of an attempt to commit a felony. The appellant predicates this assignment on the proposition that the appellant did not actually obtain the goods, but only attempted to do so. The appellant was indicted for the attempt to obtain goods in violation of § 39-1954. As previously stated, an attempt to fraudulently obtain goods is a violation of the statute and the punishment is the same for the attempt as for the actual obtaining of the property. The trial judge did not err.

The appellant further contends that the jury should have been given a misdemeanor charge under the provisions of the original 1961 Act on the theory that the 1961 Act is still in effect as to the “attempt” to fraudulently use a credit card, because the word “attempt” was omitted from the caption of the 1968 Act. As stated, the provisions of T.C.A. § 39-1954 are valid as expressed in the code, including the provision that the attempt to fraudulently obtain property in violation of the statute is a felony punishable as in the case of larceny.

Both the State and the appellant favored us with excellent briefs, which have been very helpful.

The judgment of the Criminal Court is affirmed.

DWYER, P. J., and FAQUIN, Special Judge, concur.

      . In both the Farris and Hailey cases, the Supreme Court was dealing with separate 1973 acts which were officially codified by Chapter 414 of the Public Acts of 1974 (passed January 24, 1974). The Farris question arose out of a trial on October 24, 1973 and the Hailey question was first raised by plea in abatement filed September 26, 1973.


author: DUNCAN, Judge.

text:
    Joseph B. MATHIS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 20, 1978.
    Certiorari Denied by Supreme Court Aug. 7, 1978.
    Harold E. Brown, Chattanooga, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Michael J. Passino, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Stephen M. Bevil, Asst. Dist. Atty. Gen., Chattanooga, for appellee.
   OPINION

DUNCAN, Judge.

The appellant, Joseph B. Mathis, contests the ruling of the trial judge in revoking his probationary sentence. We find no error and affirm the judgment.

On July 19, 1973, after entering a plea of guilty to the offense of concealing stolen property over the value of $100.00, the appellant was sentenced to the penitentiary for a term of not less than 3 years nor more than 3 years.

On October 2, 1973, the appellant’s petition for a suspended sentence was granted, and the trial judge’s order provided in part that the appellant’s probation was “conditioned on defendant’s good behavior for a period of 10 years under the supervision of the State Parole Office.”

On January 8, 1974, the trial judge entered an order discharging the appellant from active supervision. This order further provided that: “[T]he balance of the period of probation will remain in effect until the expiration, or as modified by further order of the Court.”

On October 24, 1976, the appellant was arrested and charged in several cases of armed robbery. On November 17,1976, the State filed a petition to revoke the appellant’s probation, a capias was issued for his arrest, and he was subsequently arrested on November 18, 1976.

On January 12, 1978, the appellant was convicted on 9 cases of armed robbery, and on January 27,1978, the trial judge revoked the appellant’s probationary sentence and ordered it to be served consecutive to his armed robbery sentences.

The appellant contends that the trial judge was without authority to revoke his suspended sentence, alleging that the maximum time directed and ordered for such suspension had lapsed before the occurrence of his armed robbery offenses which were the basis for the revocation of his suspended sentence. We do not agree.

The appellant erroneously interprets the term of his probation to have been for 3 years. We interpret the trial judge’s order of October 2,1973, to the contrary. In that order he conditioned the appellant’s probation on his “good behavior for 10 years,” which clearly attests that the trial judge was setting the duration of the appellant’s probation to be for 10 years. The trial judge had the authority to set this duration by virtue of T.C.A. § 40-2901, which provides, as follows:

“. . . The trial judge shall possess the power to set the duration of such suspension at any period of time equal to the minimum sentence, but not more than the maximum sentence provided for the offense committed by the defendant

We note that T.C.A. § 39-4217(C) specifies 10 years as the maximum sentence for concealing stolen property over the value of $100.

The trial judge’s order of January 8,1974, only discharged the appellant from active supervision. It in no way altered the 10 year duration of his probation. In fact, that order specifically stated that “the balance of the period of probation will remain in effect . . . ”

Because the duration of the appellant’s probation was 10 years, then it would necessarily follow that these revocation proceedings which were commenced in November, 1976, were well within the statute of limitations as contemplated by the provisions of T.C.A. § 40-2906, which provide:

“The trial judge shall possess the power, at any time within the maximum time which was directed and ordered by the court for such suspension, ... to revoke and annul such suspension, . .”

The case of Hill v. State, 202 Tenn. 416, 304 S.W.2d 619 (1957), cited by the appellant in his brief, is not applicable to the issue at hand. In Hill, the revocation proceedings were begun within the duration of that defendant’s probation.

In agreeing with the appellant’s position, the State cites in its brief the cases of McGuire v. State, 200 Tenn. 315, 292 S.W.2d 190 (1956) and Allen v. State, 505 S.W.2d 715 (Tenn.1974) for the proposition that a trial court is without authority to revoke a suspended sentence after the applicable statute of limitations has expired. We have no quarrel with that proposition, but it is irrelevant to the issue before us because the statute of limitations had not run in the present case.

The actual holding in McGuire was that serving notice of revocation to the probationer tolled the running of the statute of limitations. In Allen, the actual holding was that the tolling of the statute was to be. tested by the date of the issuance of the revocation warrant and not the date that the warrant was served.

Further, we would point out that in the McGuire case, the Supreme Court, in affirming the trial judge’s order revoking that defendant’s suspended sentence, was dealing with a judgment order that set the defendant’s sentence at 90 days in the workhouse, conditioned “upon his good behavior for one year.” The revocation proceedings were not commenced within the 90 day period of his sentence; rather, they were commenced within the one year period that had been set as the duration of his probation. In the present case, we are dealing with a situation quite similar to the McGuire situation. Here the defendant’s probation was “conditioned on defendant’s good behavior for a period of 10 years.” Also, the revocation proceedings in the present case did not commence within the period of the appellant’s actual sentence (3 years), but were commenced within the period (10 years) set for the duration of his probation.

We overrule the appellant’s assignment of error and affirm the judgment of the trial court.

WALKER and TATUM, JJ., concur.