author: HOGAN, Judge.

text:
    Merlin A. STAAB, Plaintiff-Appellant, v. Theodore THORESON, Bennett Thoreson and Evelyn Thoreson, Defendants-Respondents.
    No. 10499.
    Missouri Court of Appeals, Southern District, En Banc.
    March 28, 1979.

      Robert P. Baker, Sarcoxie, for plaintiff-appellant.
    J. D. Baker, Belisle & Baker, Osceola, for defendants-respondents.
   HOGAN, Judge.

Plaintiff Merlin A. Staab declared upon a contract with defendants to: (a) clear the standing timber from 800 acres of defendants’ land; (b) clear the scattered timber from 20 acres of the land; (c) construct 4 ponds on the land; and (d) run 1 mile of line fence on defendants’ land, “predominantly situated” in St. Clair County. Alleging defendants’ promise to pay the sum of $21,500 and to deliver a tractor worth $23,-000 as consideration for performance, plaintiff admitted partial payment in the amount of $16,600, but averred breach of the contract by prevention of performance and damages in the amount of $39,610. The action was commenced on September 7, 1973.

Defendants filed an answer and counterclaim. Defendant Evelyn Thoreson denied being a party to the contract alleged in the petition; defendants Theodore and Bennett J. Thoreson denied each and every allegation contained in each and every paragraph of plaintiff’s petition. By way of affirmative counterclaim, defendants averred that on December 28, 1972, they contracted with plaintiff to: (a) construct 4 ponds on their land; (b) clear scattered timber from 20 acres of their land; (c) clear the standing timber and brush from 1 mile of line fence; and (d) clear the standing timber and brush from “some 800” acres of land owned by defendants. In consideration of plaintiff’s service, defendants agreed to pay plaintiff the sum of $21,500 and to deliver one “International Harvester Company TD 20B” of an agreed value of $10,500. Thereafter, defendants alleged, plaintiff began clearing the land and continued to do so intermittently until May 30, 1973. On June 15, 1973, so defendants alleged, the parties entered into a “supplemental” agreement “amending and superseding” the original agreement. The second contract called for plaintiff to: (a) clear all timber from defendants’ 867-acre tract; (b) pile all the felled timber into manageable windrows so it could be burned; (c) clear the timber and brush from 1 mile of line fence; and (d) clear the scattered timber on 20 acres of defendants’ land. Defendants averred that the consideration to be paid for plaintiff’s services was $22,980 and delivery of a tractor of the agreed value of $10,500. Defendants further pleaded partial payment in the amount of $16,600, breach of the contract by plaintiff, and averred consequential damages in the amount of $35,804. Plaintiff filed a detailed reply, denying, among other things, the existence of any “supplemental” or “superseding” contract. By November 3, 1973, the cause was at issue.

On May 31,1974, defendants applied for a change of judge pursuant to Rule 51.05, V.A.M.R., and a special judge was assigned to hear the case. The cause was thereafter set for trial by jury on June 11, 1975. The parties appeared. Plaintiff moved the court for a continuance; defendants moved to amend their counterclaim. Both motions were granted and the cause was set over for trial on December 19 and 20, 1975. On December 10, plaintiff filed another application for a continuance, and on December 16, mailed a notice of dismissal without prejudice to the clerk of the trial court. On December 19, defendants appeared with counsel. Neither the plaintiff nor his counsel appeared. The trial judge noted plaintiff’s dismissal without prejudice, and asked defendants if they were ready to proceed. Defendants announced ready and presented proof of their claim, including damages, by four witnesses. At the close of the trial, the court made the following docket entry:

“Motion for continuance overruled. Plaintiff files dismissal without prejudice. Defendants announce ready for trial on ocounterclaim. Trial by Court. Judgment for Defendants and against the plaintiff for $38,126.75 as per formal decree filed herewith.

A formal judgment was prepared and filed as of the date of rendition, which, contrary to plaintiff’s assertion, was entirely proper procedure. Sears v. Norman, 543 S.W.2d 300, 304[7] (Mo.App.1976). On January 15, 1976, 27 days after the judgment was rendered, plaintiff filed a pleading styled “Motion to Set Aside Judgment” and on January 23, he appealed to this court. After the transcript on appeal was filed, it was routinely examined and thereafter, the court’s attention was called to the want of a ruling on plaintiff’s after-trial motion.

The motion, sworn to by counsel, is very long; some of the allegations are appropriate to a motion for new trial, but inasmuch as it was filed well after the 15-day period prescribed by Rule 78.02 and there is no allegation that plaintiff was not timely notified of the entry of judgment as required by Rulé 74.78, plaintiff’s motion was not regarded as a motion for new trial. The motion does allege that 13 days prior to the date of trial, plaintiff’s counsel was advised that defendants would try the case to the court. Counsel agreed, but wrote the special judge that plaintiff would need more time and would ask for a continuance when the case was called on December 19. Plaintiff’s counsel so advised defendants’ attorneys. A written motion for continuance was prepared and sent to the clerk of the circuit court. Four days prior to trial, the defendants’ attorneys advised plaintiff’s counsel they would insist on going to trial. Plaintiff’s attorney thereupon complained to the trial court. The trial court advised plaintiff’s counsel that plaintiff had no alternative except to dismiss the cause without prejudice and refile the action. The trial court said “Ray (defendants’ attorney) says he will dismiss if you do.” Nevertheless, plaintiff’s attorney was advised by telephone — the day before trial — that defendants’ attorneys had meant they would dismiss the counterclaim with prejudice but would not be willing to dismiss without prejudice. Plaintiff’s counsel was advised by the trial judge that he “didn’t know” if defendants would appear and ask for judgment on their counterclaim.

The allegations just recited suggested to this court that plaintiff’s after-trial motion should be regarded as a motion for equitable relief. The equitable grounds for relief from a default judgment have never been very clearly defined, but it is generally recognized that a party who fails to appear may set up mistake, excusable negligence, surprise or accident as grounds for equitable relief, and he may do so by after-trial motion. J. R. Watkins Company v. Hubbard, 343 S.W.2d 189 (Mo.App.1961); Comment, Procedure — Setting Aside Final Judgments in Missouri, 28 Mo.L.Rev. 281, 299-305 (1963), and see generally Restatement, Judgments § 120 and comments, pp. 584 — 585 (1942). It was therefore decided that the appeal was premature and should be dismissed, for whatever the precise nature of the plaintiff’s after-trial motion, proof of the allegations was necessary. Reger v. Reger, 316 Mo. 1310, 1327, 293 S.W. 414, 421[5] (1927); Coleman v. Coleman, 277 S.W.2d 866, 869[2] (Mo.App.1955). Cf. State ex rel. County of Mississippi v. Stallings, 434 S.W.2d 588, 591-592[5, 6] (Mo.1968). Motions and other pleadings do not prove themselves. Proof is required and the burden of proof rests upon the party filing the motion. Williams v. Williams, 497 S.W.2d 415, 417[2] (Mo.App.1973), and see Hamilton v. Linn, 355 Mo. 1178, 1181, 200 S.W.2d 69, 71[7] (1947). So, with a timely motion pending before the trial court, there was no “final and appealable” judgment, for with certain exceptions not applicable to this case, a judgment is not “final and appealable” until the trial court has exhausted its jurisdiction and the issues decided are beyond its control. Pendleton v. Pendleton, 532 S.W.2d 905, 906[2] (Mo.App.1976); State ex rel. Mary Frances Realty Co. v. Homer, 150 Mo.App. 325, 330, 130 S.W. 510, 512[5] (1910), and see State ex rel. Chicago B. & Q. R. Co., 189 Mo. 197, 216, 88 S.W. 28, 34 (1905); Wolff v. Vette, 17 Mo. App. 36, 37 (1885). Further, it was clear that the plaintiff was obliged to pursue his appeal from the “default” judgment or to present evidence in support of his after-trial motion and then appeal, one or the other. He could not, as the expression runs, “blow hot and cold” in this court. The terms “waiver,” “abandonment” and “estoppel” are used rather loosely to describe this sort of inconsistency but there is considerable authority in support of the proposition that a party against whom a judgment has been rendered and who brings another action upon the judgment which is clearly inconsistent with the right of appeal is estopped to appeal. Sharp v. Interstate Motor Freight Systems, 442 S.W.2d 939, 946[8] (Mo.banc 1969); Sansone v. American Mut. Indemnity Assn. of Missouri, 20 S.W.2d 293 (Mo.App.1929); Sullivan v. Cloud, 62 Ohio App. 462, 24 N.E.2d 625, 626[3] (1939); Annot. 115 A.L.R. 121 (1938). Plaintiff could regard the judgment complained of as valid but erroneous, or as a void judgment subject to vacation because it was procured by some species of equitable fraud. He could not claim it was both valid and void. With these considerations in mind, the first appeal was dismissed in a short per curiam opinion. Staab v. Thoreson, 536 S.W.2d 537 (Mo.App.1976).

Thereafter defendants, having obtained new counsel, gave notice to the plaintiff that they would call up the “Motion to Set Aside Judgment” on Friday, September 24, 1976. There is no contention that this notice was not received by counsel. The supplemental transcript filed here reflects that the cause was duly called, that defendants appeared by their counsel, but neither plaintiff nor his counsel appeared. The motion was denied, and the amount of an appeal bond was fixed. Thereafter plaintiff again appealed, again from the judgment of December 19, 1975.

On this appeal, one or two preliminary observations seem appropriate. First, we should make it clear that we regard the judgment of December 19, 1975, as a final, appealable judgment. When the plaintiff voluntarily dismissed his petition, the parties in effect exchanged positions. The defendants became plaintiffs, and the plaintiff became defendant; defendants’ counterclaim became the first pleading. Rule 67.05, V.A.M.R.; Clark Real Estate Co. v. Old Trails Inv. Co., 335 Mo. 1237, 1246, 76 S.W.2d 388, 393 (1934); Zorensky v. Wellston Clothing Co., 223 S.W.2d 851, 854[2] (Mo.App.1949). There is no contention, nor could there be upon this record, that the plaintiff was not “personally served” with a copy of the defendants’ answer and counterclaim; Rule 43.01(b) provides that service of a pleading on a party represented by an attorney of record shall be made upon the attorney unless the court otherwise orders. It is admitted that trial without a jury was agreed to; in bench-tried cases, the court itself is the ultimate trier of fact, whether or not an advisory jury is empaneled. Rule 73.01(l)(a) and (b); Buford v. Moore, 177 S.W. 865, 868-869[2] (Mo.1915); Labor Discount Ct. v. State B. & T. Co., 526 S.W.2d 407, 420-421[4, 5] (Mo.App.1975). A judgment entered against a defendant by a court upon consideration of evidence offered under pleadings filed by the parties is a judgment on the merits, even though neither defendant nor his lawyer appear at the trial. Hamm v. Hamm, supra, n. 1, 437 S.W.2d at 452; State ex rel. Jones v. Reagan, 382 S.W.2d 426, 430[5][6] (Mo.App.1964). It is true that plaintiff’s voluntary dismissal of his petition did not amount to a confession of judgment; defendants’ damages remained a matter of proof, Fawkes v. National Refining Co., 341 Mo. 630, 636-637, 108 S.W.2d 7, 9—10[1, 2][3, 4] (1937), but here the plaintiff had notice that the case would be called on December 19, and by the express language of the second sentence of Rule 74.10, the trial court was authorized to assess defendants’ damages and enter a final judgment. Because the trial court entered judgment against the plaintiff in the amount of $38,126.75, and the judgment is final, we are in no doubt he is entitled to appeal. § 512.020, RSMo (1969), V.A.M.S.

Further, it should be noted that what we have already said disposes of the plaintiff’s last three points, and we decline to elaborate further on them. Otherwise, the issues presented for consideration are:

1. Was defendants’ counterclaim strictly and literally a plea in recoupment, so as to preclude the entry of a judgment against the plaintiff?
2. Was defendants’ counterclaim so defectively pleaded that it stated no claim upon which relief could be granted?
3. Did the trial court apply the proper measure of damages?
4. Was defendants’ amendment to their counterclaim at the close of their evidence so substantial and material as to amount to a “new or additional claim” which should have been served upon the plaintiff?

The plaintiff here quotes the ad damnum part of defendants’ counterclaim, notes the fact that they proved the cost of clearing the land after plaintiff either quit or was discharged, and summarily concludes that defendants’ “theory was recoupment.” Asserting upon the authority of Schroeder v. Prince Charles, Inc., 427 S.W.2d 414, 419 (Mo.1968), that a plea in recoupment will not support an affirmative judgment, plaintiff maintains the judgment cannot stand.

This opinion is no place for an extensive discussion of the doctrine of recoupment. The terms “recoupment,” “recouper” and “defaulk” are words of art which antedate the King James version of the Bible, see, e. g., Coulter's Case, 5 Co. 30(a), 77 Eng.Rep. 98 (K.B.1598), and needless to say have undergone many changes in meaning. The origin of the doctrine as a modern principle is uncertain, 3 T. Sedgwick, Damages, § 1040 (9th ed. 1912); Kennedy v. Dodge, 14 Fed.Cas.No.7,701 pp. 310, 312 (D.C.N.Y. 1867) (recognizing the right of recoupment in admiralty), but the books are indeed replete with statements that a common-law recoupment is purely defensive, and no affirmative judgment can be rendered thereon. See, e. g., Kegan v. Park Bank, 320 Mo. 623, 652, 8 S.W.2d 858, 872[23] (1927), modified on rehearing 320 Mo. 654, 15 S.W.2d 333 (1927); Emery v. St. L., K.-N.R. Co., 77 Mo. 339, 346-347 (1883).

Under modern codes of pleading, it is clear that recoupment is meant to be available either as a purely defensive plea or as a counterclaim. 2A J. Moore, Federal Practice § 8.27[3], pp. 1855-1856. The primary guide to proper characterization of a pleading as a “defense” or “counterclaim” is the pleader’s intent, for Rule 55.08 provides that “. . . [W]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleadings as if there had been a proper designation.” Particularly instructive in this connection is the observation of our preceptor in Brush v. Miller, 208 S.W.2d 816, 821 (Mo.App.1948), that:

“. . . [B]y such a defense [as purely defensive recoupment] the defendant does not deny the contract and the plaintiff’s performance under it, but by proof of defective performance he seeks to avoid his liability to the plaintiff for payment of the agreed price. . . . ”

See further, United States Plywood Corp. v. Hudson Lumber Co., 17 F.R.D. 258 (D.C.N.Y.1955), where such a defense was set up in the answer.

It is clear that defendants intended to state an affirmative counterclaim. The counterclaim is complete in itself, averring a cause of action in the defendants. Defendants pleaded a contract materially different from that pleaded by the plaintiff, breach thereof as well as defective performance, and consequential damages. Plaintiff’s first point is without merit.

Likewise, plaintiff’s argument that defendants’ counterclaim failed to state a claim upon which relief could be granted is devoid of substance. A pleading is good against such an objection if the averments of the pleading, accorded every reasonable and fair intendment, state a claim which can call for the invocation of principles of substantive law which may entitle the pleader to relief, Boyer v. Guidicy Marble, Terrazo & Tile Co., 246 S.W.2d 742, 744[1] (Mo.1952); Kersey v. Harbin, 531 S.W.2d 76, 79[2] (Mo.App.1972), and the pleader is not to be cast merely because his cause of action is imperfectly or defectively stated. Downey v. United Weatherproofing, Inc., 363 Mo. 852, 855, 253 S.W.2d 976, 977-978[l, 2] (1953). Construed in light of these principles, defendants’ counterclaim pleaded an offer, by plaintiff, to perform enumerated services for the sum of $32,000; acceptance of that offer by promise to pay; a subsequent superseding agreement by an offer, on plaintiff’s part, to perform the original and some incidental services; acceptance by defendants’ promise to pay the sum of $32,000 and to deliver a tractor; breach of the contract by the plaintiff and consequential damages sustained by the defendants. Such are the elements of an action for breach of a contract for personal services. Vondras v. Titanium Research & Development Co., 511 S.W.2d 883, 886[7] (Mo.App.1974).

We find no merit in the plaintiff’s complaint that the trial court applied an erroneous measure of damages. The object of the contract — or contracts, depending upon whose viewpoint is accepted, the purpose in securing plaintiff’s services, was to clear the timber — by defendants’ evidence, “basically scrub oak” — and other debris from 867 acres of land, move the fallen timber into windrows which could be burned, leaving the acreage “level to where [defendants] could drive a pickup truck over [all of] it.” Defendants’ evidence was that plaintiff breached his contract by repudiation, and that his part performance had been so defective and incomplete defendants were obliged to hire another contractor to complete the clearing. By wrenching an isolated statement completely from its context, plaintiff would have us construe defendants’ evidence as proof of tortious injury to their land, but there is nothing in the record, except for that isolated remark, to indicate what “theory” was in defendants’ mind or that of the court. What the defendants did offer was proof that they paid another contractor the sum of $34,626.75 to correct and complete the work plaintiff had agreed to do before being overcome by an attack of rue bargain. From the evidence presented, the trial court could reasonably have found that plaintiff breached the contract by repudiation after defective part performance. The defendants’ damages were properly measured by the reasonable cost of reconstruction and completion in accordance with the agreement. Edmonds v. Stratton, 457 S.W.2d 228, 233[10] (Mo.App.1970). The trial court did not apply an incorrect measure of damages.

Plaintiff’s contention that defendants’ amendment at the close of their evidence was so substantial and material plaintiff was entitled to notice must be considered in light of the record. In their counterclaim, defendants alleged various .species of damages in the amount of $35,804; by amendment long before the trial, they increased their demand to $39,380.75. In their original counterclaim defendants alleged that plaintiff used the TD 20B tractor in attempting to clear their land, decreasing its value in the amount of $3,500. Upon trial, defendants’ evidence was that plaintiff had used the tractor for a purpose to which it was not suited, and there was some evidence that the tractor, which belonged to the defendants, had not been properly maintained while plaintiff was using it. Further, defendants abandoned their more speculative allegations of damages and limited their proof to the cost of correction of plaintiff’s work and completion of the contract. At the close of all the evidence, defendants’ counsel stated: “[Y]our honor, we will amend to show a request for $34,-626.75 damages to the land and $3,500 damages to the [tractor].”

Plaintiff cites Rubbelke v. Aebli, 340 S.W.2d 747, 752 (Mo.1960), and Donnell v. Vigus Quarries, Inc., 457 S.W.2d 249, 254 (Mo.App.1970), in support of his contention that he was entitled to notice of the amendment. However, in Rubbelke, plaintiff amended Count I of his petition so as to change his cause of action from an action for specific performance to an action to impress a resulting trust upon the entire parcel, whereas the original pleadings had claimed only an undivided one-half interest in the land. In Donnell, the petition stated no statutory cause of action under § 537.-340, RSMo (1969), V.A.M.S., without the amendment. In both cases cited, the plaintiff effectively introduced a “new or additional claim for relief,” and it would seem that if either court had been so inclined, the judgments could have been set aside for want of additional process under Rule 43.-01(a), which requires personal service of “new or additional claims” upon parties in default. The real inquiry, we think, is whether the defendants effectively changed their cause of action by amendment. Miltenberger v. Center West Enterprises, 251 S.W.2d 385, 388[5] (Mo.App.1962). We do not find that they did. It is true that they proved only part of the different species of damages alleged, but the contract pleaded in the counterclaim was the one relied upon at the trial, and the total amount of damages claimed was not increased by the amendment. The amendment changed neither the facts of which plaintiff had notice, nor the total amount of the judgment he might reasonably have expected would be rendered against him. We conclude it was in the discretion of the trial court to allow the amendment, Rule 55.33(b), and that the trial court’s discretion was not abused.

We find no error materially affecting the merits of the action. Accordingly, the judgment is in all respects affirmed.

All concur, except GREENE, J., not participating because not a member of the court when case was submitted.

      . All references to rules are to Missouri Rules of Court, 9th Edition, 1978, V.A.M.R.

      . This is not to say that much the same relief may not be sought in a motion for new trial. It may, but the granting of such relief is discretionary with the trial court. Hamm v. Hamm, 437 S.W.2d 449, 453-454 (Mo.App.1969).

      . Which, in this case, amounted to levelling out the land and repositioning the fallen timber into manageable windrows.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Junior A. FORRESTER, a/k/a Junior Amos Forester, Defendant-Appellant.
    No. 11148.
    Missouri Court of Appeals, Southern District, En Banc.
    March 28, 1979.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    William H. Wendt, Springfield, for defendant-appellant.
   TITUS, Judge.

The transcribed judgment of conviction herein recounts that on August 24, 1978, in the Circuit Court of Greene County, Missouri, defendant was sentenced and judgment was entered upon his conviction for the crime of pandering, a felony per § 563.010, V.A.M.S. The court has been furnished a certified copy of the Certificate of Death of the Missouri Division of Health, duly executed by Harold L. Jones, M.D., which attests that on February 25, 1979, defendant expired as the result of a cardiac arrest.

Having died before the crime against him was finally determined on appeal, defendant was never finally convicted of the crime charged and his death served to abate the prosecution against him. As a result, this court has no viable cause before it and the appeal is hereby dismissed. State v. Macktin, 560 S.W.2d 69 (Mo.App.1977).

All concur, except GREENE, J., not participating because not a member of the court when case was submitted.


author: TODD, Judge.

text:
    FOSTER & CREIGHTON COMPANY, Plaintiff-Appellant, v. WILSON CONTRACTING COMPANY, INC., Tyler-Hyde Company, Defendants-Appellees, v. UNITED STATES FIDELITY & GUARANTY CO., Third-Party Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 27, 1978.
    Certiorari Denied by Supreme Court March 19, 1979.

      Thomas W. Steele and Joel M. Leeman, Gullett, Steele, Sanford & Robinson, Nashville, for plaintiff-appellant.
    John K. Maddin, Jr. and Patrick A. Ruth, Gracey, Maddin, Cowan <& Bird, Richard D. Speight, Goodpasture, Carpenter & Woods, Nashville, for defendants-appellees.
   OPINION

TODD, Judge.

The plaintiff, Foster & Creighton Company, a subcontractor, sued its general contractors, R. B. Tyler Company, Inc. (now known as Wilson Contracting Company) and Tyler-Hyde Company, a joint venture, for damages representing extra expenses incurred by delay of and interference with plaintiff in completing its subcontract. Defendants filed a third party action against United States Fidelity and Guaranty Company, surety on the contract of another subcontractor, T. F. Scholes, asserting that plaintiff’s damages, if any, were due to the default or delinquency of Scholes and that defendants should have judgment over against United States Fidelity and Guaranty Company for the amount of any judgment recovered by plaintiff against defendants.

The Chancellor awarded plaintiff judgment against defendants in the amount of $26,712.66 and dismissed defendants’ third party action against United States Fidelity and Guaranty Company.

Plaintiff has appealed because of dissatisfaction with the amount of the judgment. Defendants have appealed from the award of judgment to plaintiff and from the dismissal of defendants’ third party action against United States Fidelity and Guaranty Company.

Early in 1957, defendants contracted with the United States Army Corps of Engineers to construct certain improvements at Key Field, Meridian, Mississippi, including resurfacing certain existing runways and grading and paving certain new runways.

On March 11,1957, defendants contracted with T. F. Scholes to perform the necessary earth moving and grading in preparation for the new paving. The contract provided that Scholes should complete the required work by January 2, 1958.

On March 22,1957, defendants contracted with plaintiff to perform all paving, including the resurfacing of existing runways and the paving of new runways by January 2, 1958.

It was possible for plaintiff to perform the resurfacing without waiting for completion of the work of any other subcontractor, but it was impossible for plaintiff to pave any new runway area until it had first been graded by Scholes.

For this reason, the provisions of both sub-contracts requiring complete performance by the same date, January 2, 1958, created a possible situation in which Scholes might complete his grading on time, yet leave no time for plaintiff to complete its paving after grading by Scholes.

During April and May, 1957, representatives of plaintiff and defendants discussed when plaintiff should begin its work which required the “setting up” of a large concrete mixing plant and accessory machinery. Plaintiff desired to delay operations until progress in grading by Scholes was such as to assure completion of grading in time to allow plaintiff to pave without delay. Defendants disagreed and insisted that plaintiff begin operations by July 1. Plaintiff objected to beginning on July 1 because Scholes was having difficulties in grading and his progress did not indicate that he could complete grading to accommodate plaintiff’s paving if begun on July 1.

Defendants’ supervisor, a Mr. White, told plaintiff’s representative that plaintiff must begin repaving existing runways on July 1, and said:

“You can- start on the asphalt (resurfacing) and when you get through with that, we’ll have the rest of the job where you can proceed along. So come on in.”

Early in June, plaintiff began assembling its mixing machinery and, on June 25, 1957, began laying concrete over the existing asphalt runways.

On July 5, 1957, plaintiff notified defendants that it would complete the “asphalt overlay” (resurfacing) within a few days and would not be able to proceed with new paving until some of the grading had been completed. Defendants’ representative assured plaintiff that defendants would “do everything they could to get the grade straightened out so we could pave.”

On July 19, 1957, plaintiff ceased operations because all of the resurfacing had been completed and none of the grading had been completed for new paving. At this time, plaintiff notified defendants that delay in proceeding with paving would result in extra expense of $6,000.00 per week. Defendants again promised to “get the grade straightened out” for paving, and plaintiff retained its equipment and crew on the job-site without doing any further paving from July 19 to August 14, 1957, when personnel and equipment were removed from the job-site.

At the insistence and direction of defendants, plaintiff returned its equipment and crew to the job-site on September 30, 1957, but no grading was complete for paving at that time. Some grading was completed by October 17, 1957, at which time plaintiff resumed paving. Because of requirements of minimum temperature for pouring concrete, plaintiff was unable to pave continuously during the cool fall and winter weather, and special, additional procedures were required to satisfactorily “cure” the concrete.

Concrete was completed by January 1, 1958, and the joints were sealed by February 2, 1958, which completed plaintiff’s contract: Apparently the delay in sealing joints (after January 2, 1958) was- not deemed material.

Plaintiff’s suit was filed on January 28, 1959, alleging $42,531.57 damages by “breach of express and implied contractual obligations of defendants.”

On February 17, 1959, defendants petitioned the U.S. District Court for removal of the cause to that jurisdiction.

On October 3, 1962, the U.S. District Court remanded the cause to the State (Chancery) Court, where the cause was pending until finally determined January 3, 1978, in the manner previously stated.

Defendants have filed five assignments of error, the first three of which are as follows:

“1. The trial court erred in ruling that Tyler-Hyde acted unreasonably in bringing Foster & Creighton onto the job to begin work by July.
2. The trial court erred in holding that by bringing Foster & Creighton onto the job by July 1, Tyler-Hyde incurred a duty to provide so much site preparation at that time as to enable Foster & Creighton to complete its work and move on without interruption or at its own pace.
3. The trial court erred in ruling that the delay experienced by Foster & Creighton was unreasonable.”

The Chancellor held:

“The contract between Foster and Creighton and Tyler-Hyde does not expressly provide that Foster and Creighton will be allowed to proceed without delay once they have started their work. Foster and Creighton relies on authority which recognizes an implied obligation on the part of the general contractor to facilitate the work required by the sub-contract. Wright & Kremers v. State, 263 N.Y. 615, 189 N.E. 724 (1934), V. C. Edwards & Co. v. Port of Tacoma, 83 Wash.2d 7, 514 P.2d 1381 (1973). The court is of the opinion that under the circumstances of this case, where the prime contractor directed the sub-contractor to begin its operations by a certain date, that there is an implied obligation on the part of the prime contractor to allow the other party to proceed without unreasonable delay. Based on that principle, the court is of the opinion that the failure to keep the project moving in July of 1957 was a breach of that implied duty and Tyler-Hyde is responsible for the resulting damages.”

Plaintiff’s reply brief states:

“Stripped of obfuscation and the Defendants’ endless abdications from responsibility, the essence of this case is that an express representation regarding anticipated work progress was made by the general contractor to one of its subcontractors, which representation the general contractor either knew of should have known to be one which could not be fulfilled in view of its knowledge of the prior, totally inadequate work progress of another subcontractor. In reasonable reliance upon these representations, the subcontractor to whom the representations were made put its crew on this job, at its considerable expense, and kept its men there for a period in excess of two months, completing that work which could be done without the performance of preparatory work by the other subcontractor and, even after it had no further work to do, remained on the job for an extended period of time in reliance upon the continued representations of the general contractor that the progress of the preparatory work would be expedited, which representations were never fulfilled . .

The briefs of both appellants go to great lengths in citing authorities and arguing that a general contractor is or is not liable for failure to expedite the work of subcontractors to prevent delay of other contractors. The issue so earnestly argued is not determined by an absolute rule of law applicable to all cases. The correct rule is a rule of contract and reason.

If a general contractor engages a subcontractor to perform a part of the general contract, there is an implied understanding that the subcontractor will be given a reasonable opportunity to perform. The subcontractor is not liable for failure to perform if he has not been afforded a reasonable opportunity to perform, and in a proper case, may recover damages for such denial of opportunity.

If the contract requires the subcontractor to complete performance by a certain date, then the subcontractor cannot be held liable for failure to complete on time unless he has been afforded a reasonable opportunity to perform, and, in a proper case, may recover damages for denial of such opportunity.

Moreover, a general contractor may, in a proper case, be liable to a subcontractor for wrongfully interfering with performance by the subcontractor.

However, none of the above rules are applicable to the present case, because plaintiff was allowed to perform and did complete its work on time. Plaintiff’s complaint is based upon the delay of Scholes and the failure of defendants to require Scholes to work faster or to substitute another subcontractor to do the grading. Since the grading was ultimately finished in time to allow plaintiff to complete its paving on time, no breach of contract is seen in Scholes’ slowness or defendants’ failure to speed his work.

Plaintiff complains that it was “required” to begin work on July 1, which was too soon for efficient coordination with the grading of Scholes. The briefs do not point out the authority whereby defendants “required” plaintiff to begin on July 1. Plaintiff simply says that defendants announced that if plaintiff did not begin by July 1, defendants would “call in another contractor” to do the paving. This was, of course, persuasive but can hardly justify plaintiff in “setting up” its machinery at considerable cost and starting operations when it knew the operations could not be continued efficiently to completion due to the delays in grading.

Defendants say they insisted upon the paving being started by July 1, because the Corps of Engineers so insisted. Neither brief points out to this Court wherein the Corps of Engineers or defendants had a contractual right to demand that paving begin on July 1.

Plaintiff was in a peculiar position, known to defendants, Scholes and the Corps of Engineers. Plaintiff’s work required the “setting up” of a large concrete mixing plant with accessory equipment. Three weeks were required for the erection of this plant. It was therefore reasonably to be expected that plaintiff would be allowed to erect its mixing plant and begin operations at a time when it would be able to perform all of its contact (both resurfacing and new paving), for it would be patently unreasonable to require the erection of such an elaborate plant for part of the work only to dismantle it after part performance and to re-erect it later for completion of the contract.

Plaintiff therefore had the right to refuse to begin the assembly of its mixing plant until the entire project was in such a state of completion that plaintiff could'proceed without delay in prosecuting its paving. For example, plaintiff had the right to delay the erection of its plant until September (when it was erected for the second time) demands and protests of the Corps of Engineers and defendants to the contrary notwithstanding. If plaintiff had so delayed, it could have readily completed the resurfacing by the completion of grading on October 17, and thereafter performed the new paving as was done.

Plaintiff did not see fit to so delay, but saw fit to accede to the demands of defendants for beginning on July 1. Why? If plaintiff started work on July 1 merely because of an unjustified threat by defendants to breach its contract, it is doubtful that plaintiff could recover.

As stated in plaintiff’s brief (previously quoted), plaintiff’s claim is based in reality upon detrimental reliance upon representations or promises of defendants, (i. e. “you can start on the asphalt and when you get through with that, we’ll have the rest of the job where you can proceed along. So come on in.”)

Detrimental reliance is a relatively new theory or ground of recovery. It is a branch or restatement of the law of contracts in regard to required consideration.

Generally, a promise unaccompanied by a consideration is unenforceable. 17 C.J.S. Contracts § 71, pp. 748 et seq. However, when one man by his promise induces another to change his situation, a repudiation of the promise would amount to a fraud. Where one makes a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, and where such promise does in fact induce such action or forbearance, it is binding if injustice can be avoided only by enforcement of the promise. 17 C.J.S. Contracts § 74, p. 764.

The same rule has been called the doctrine of promissory estoppel. In 17 Am. Jur.2d, Contracts, § 89, pp. 431, 432, is found the following text:

“The trend of modern cases is to extend the rule of estoppel to promissory statements, where the evidence clearly shows that the statements were made to induce action and the promisor was culpable in some respects. But in order for the doctrine of promissory estoppel to apply, the promise which is sought to be enforced must have induced action of a definite and substantial character by the promisee. Also, justifiable reliance and irreparable detriment to the promisee are necessary factors to enable him to invoke the doctrine of promissory estoppel. Generally speaking, the mere fact that a promisee relies upon a promise made without other consideration does not impart validity to what before was void. There must be some ground for saying that the acts done in reliance upon the promise were contemplated by the contract, either impliedly or in terms, as the conventional inducement, motive, and equivalent for the promise.”

Defendants represented or promised to plaintiff that the grading would proceed to completion on a schedule that would enable plaintiff to begin paving the new grading as soon as the resurfacing was completed (having been started on July 1). Defendants knew that plaintiff would rely upon the representation or promise; plaintiff did indeed rely thereon; the promise was not kept; and plaintiff suffered damage thereby.

The same facts from a slightly different viewpoint present a classic case of a contract by exchange of promise for performance. One party requests the other party to do something he is not obliged to do. The first party says, “If you will do this, I will do that.” The second party does this; the first party is bound to do that in accordance with his promise. Defendants urged plaintiff to begin sooner than he was obligated to begin, and promised the grading would be ready. Plaintiff began work early in reliance upon the promise, the promise was not fulfilled, and plaintiff was damaged thereby. Defendants’ collateral promise made with good consideration, and it is enforceable.

It is no defense that the true wrongdoer was Scholes, or that defendants did the best they could to speed the work of Scholes. The promise was that the grading would be ready. It was an independent assurance of a condition which defendants were bound to make good or to indemnify plaintiff for loss.

In summary, plaintiff is entitled to damages for the breach of defendants’ promise that:

“You can start on the asphalt and when you get through with that, we’ll have the rest of the job where you can proceed along. So come on in.”

and not otherwise.

This holding is not in complete harmony with that of the Chancellor, but it produces the same results. A correct result will not be reversed even though the appellate court does not agree with the reason assigned for the result by the trial judge. Cherokee Insurance Company v. United States Fire Insurance Company, Tenn.App. 1977, 559 S.W.2d 337.

The defendants' first three assignments of error are respectfully overruled.

Defendants’ fourth assignment of error is as follows:

“4. The trial court erred in finding that Foster & Creighton’s damages were proved with reasonable certainty.”

The Chancellor allowed the following items of damage:

“A. Wages paid to workers during the period in which work was suspended. ($3,444.00)
B. Rental value of equipment. ($9,000.00)
C. Demurrage on railroad cars at job site. ($4,070.52)
D. Loss on forced sale of cement. ($1,506.83)
E. Cost of moving men and equipment back to the job site in September, 1957. ($8,695.31)”

The Rules of this Court require that the appellee make answer to each assignment of error with citations to the record as to matters of fact. It would seem that somewhere within two briefs comprising 122 pages, the plaintiff would have enlightened this Court as to where its evidence of damages might be found in an unusually voluminous record. Alas, the voluminous briefs have been searched in vain for the vital and required information, but without success.

From a review of the depositions and exhibits composing almost 1500 pages, this Court is satisfied that the evidence supports the damages awarded by the Chancellor and does not preponderate against his judgment. As would be expected from testimony and records brought into court so long after the fact, the evidence leaves considerable to be desired, but it is, nevertheless, sufficient.

Defendants’ complaints that payments to employees did not represent actual loss; that the rental value of equipment was not properly proven, that railroad car demur-rage and loss on resale of cement resulted from negligence of plaintiff, and that cost of moving men and equipment back on the job was not a proper item—all have been considered in the light of the record and have been rejected.

The fourth assignment of error is respectfully overruled.

Defendants’ fifth and last assignment of error complains of the Chancellor’s failure to render judgment over against United States Fidelity & Guaranty, surety for Scholes.

The previous comments herein regarding the mutual duties of contractors and the grounds of recovery in the present case are equally applicable to the fifth assignment. United States Fidelity & Guaranty became surety for any liability of Scholes for breach of his contract. At most, his obligation was to finish his grading in time to allow plaintiff to finish paving on time. He did so. There is no evidence that he breached his agreement, hence there is no ground for recovery against United States Fidelity & Guaranty.

Defendants’ fifth and last assignment of error is respectfully overruled.

Plaintiff’s first assignment of error complains of the Chancellor’s failure to allow damages for plaintiff’s additional expenses resulting from operations in cold weather, rather than in warm weather.

Regardless of the reasons assigned by the Chancellor, his conclusion was correct. As previously stated, plaintiff had no right to perform at any particular time so long as a fair opportunity was afforded for completion of the work within the assigned time (by January 2,1958). This opportunity was afforded, hence there can be no damages for changing the time of work from summer to winter. The contract between the parties did not assure performance in summer or winter.

Plaintiff’s first assignment of error is respectfully overruled.

Plaintiff’s second assignment of error complains of the failure of the Chancellor to award interest.

Interest for the 20 years between the accrual of the damages and the present time would more than double the recovery. Absent a showing of dilatory tactics of delay, it is doubtful that defendants should be taxed with interest during such a lengthy period while the lawsuit is pending. Moreover, this is an action for unliquidated damages for breach of contract (promissory estoppel or detrimental reliance) wherein the allowance of interest is not a matter of right but of discretion on the part of the finder of fact who assesses the damages.

This Court agrees with the decision of the Chancellor to disallow interest.

All assignments of error have been overruled. The decree of the Chancellor is affirmed. A judgment will be entered in this Court dismissing defendants’ suit against United States Fidelity & Guaranty Company and awarding plaintiff, Foster & Creighton Company, a judgment against the defendants, Wilson Contracting Company, Inc., Tyler-Hyde Company, a joint venture, and United States Fidelity & Guaranty Company, surety on their appeal bond, for $26,712.16 plus statutory interest from date of the Chancellor’s decree to date of the judgment of this Court plus all costs, including costs of this appeal; however, the amount of liability of United States Fidelity & Guaranty Company shall not exceed $28,850.00, the amount of the appeal bond.

Affirmed and rendered.

SHRIVER, P. J., and LEWIS, J., concur.