Sadler v. Middle Tennessee Electric Membership Corp. , 36 Tenn. App. 495 ( 1952 )

HICKERSON, J.

Sadler Electric Company, a partnership, brought this suit against Middle Tennessee Electric Membership Corporation to recover the balance due on a contract. Plaintiff alleged for canse of action:

“That plaintiffs entered into a written contract ■ with the defendant on April 2,1948 for the construe-' tion of a certain rural electric distribution project for said defendant, which contract is here to the Court shown; that said project has been completed and accepted by the corporation and that said defendant owes plaintiffs a balance of Five Thousand Nine Hundred Eighty-seven and 77/100 ($5987.77) Dollars, on said contract; that demand has been made' for the payment of same; that there are no credits or offsets due against said account:

“Wherefore plaintiffs sue the defendant for Five Thousand Nine Hundred Eighty-seven and 77/100 ($5987.77) Dollars, and demand a jury to try this cause. ’ ’

Defendant pleaded the general issue.

The jury found the issues in favor of defendant; and, upon that verdict, judgment was entered dismissing plaintiff’s suit.

Sadler appealed in error to this court. Only two questions are' presented by the assignments:

1. Is the verdict in favor of defendant supported by material evidence?

2. Is defendant estopped, as a matter of law, to defend the suit on the ground that plaintiff did not complete its contract1

(1) This court is bound by the verdict of the jury, approved by the trial judge, on material issues of fact, when the verdict of the jury is supported by material evidence. Osborn v. City of Nashville, 182 Tenn. 197, 185 S. W. (2d) 510; Finchum v. Oman, 18 Tenn. App. 40, 72 S. W. (2d) 564.

The issues presented by the pleadings are these:

1. Did plaintiff enter into a written contract on April 2, 1948, for the construction of a rural electric distribution project for defendant1?

There is no controversy about this issue. The parties did enter into the contract.

2. Has the project been completed and accepted by defendant, and does defendant owe plaintiff .a balance of $5,987.77 on the contract?

There is abundant material evidence in the record to support a conclusion by the jury that Sadler, did not complete its contract and that the work was never accepted by defendant as a completed job under the contract.

The trial judge correctly stated these controlling questions to the jury. The bill of exceptions contains this sentence:

“The Court charged the jury in proper form, which charge was not reduced to writing and, by consent of the parties, as evidenced by signatures of counsel hereto affixed, is omitted from this bill of exceptions.”

Wherefore, it is an established fact in this court that Sadler did not complete its contract with defendant, and that defendant never accepted the work done by Sadler under the contract as complete; because the jury so found under a proper charge of the court.

(2) Sadler, however, makes the question that defendant is estopped to rely upon the defense that Sadler never completed its work under the contract.

There is material evidence to support a finding by the jury that defendant at no time made the statement or took the position that Sadler had fully performed its contract and was entitled to he paid the full contract price for its work.

Furthermore, there was material evidence to support a finding by the jury that Sadler did not change its position nor lose any right by acting upon any statement of defendant that the contract had been completed and accepted. There is no merit in the question of estoppel urged by Sadler. Molloy v. City of Chattanooga, 191 Tenn. 173, 232 S. W. (2d) 24, 404; Church of Christ v. McDonald, 180 Tenn. 86, 171 S. W. (2d) 817, 146 A. L. R. 1173.

The assignments of error are overruled and the judgment of the Circuit Court is affirmed with all costs.

Felts and Howell, JJ., concur.