*1 reviewing the record After say cause, we are unable Sr., Lambert, LAMBERT, E. and W.E. W. Jr., Complainants-Appellants, Superintendent
act of the Board and arbitrary capricious. It is v. Superintendent presumed that the acts AND HOME FEDERAL SAVINGS LOAN capri arbitrary or a Board are ASSOCIATION, and & Bens See are and fair. cious but reasonable Inc., dorf, Defendants-Appellees. Practically all Bailey, supra. Mayes v. Supreme Court of Tennessee. that al witnesses testified to the effect competent though complainant March Teacher, assignment her her Attendance of her anti presence because in the office behavior, manifested her silence
social feelings” for the of her “hurt display
as a Attendance she remained as
entire time election, cre of the
Teacher her loss after atmosphere inter
ated a strained operation
fered with the efficient authorizes
office. 49-1411 T.C.A. Section system “when the school
a transfer within
necessary operation to the efficient case, in system”. our instant
school within that authori
opinion, squarely falls proof fails to show
zation as the of, complained regardless of who was
act feelings, complainant’s injured
at fault for is our arbitrary capricious. that transfers
opinion us to hold that for system hearing
charges and would emasculate the Board and
the discretion allowed matter of transfers.
Superintendent low was to a fact that such transfer position from an admin
er-paying teacher only have position
istrative of discretion.
on the abuse question
Mayes Bailey. not interfere hold that should Courts
We Superin- discretionary acts of the acts are unless such
tendent and the Board capricious arbitrary
shown to effectively teacher
subterfuge to remove a condi- system. Neither of these
from the appear in instant case.
tions As- result that both
It must therefore sustained;
signments the De- of Error are the cause dis-
cree below reversed and
missed, ap- costs below and with costs
peal adjudged against appellee. *2 Ritchie, Knoxville,
Wilson S. Albert C. Harvey, Memphis, complainants-appel- for lants. Lawler, Dunlap, Humphreys R. & John Martin,
Dunlap, Marston, W. Emmett Tate, Marston, Memphis, Morrow & for defendants-appellees.
HUMPHREYS, Justice. here, it is a As this case stands spe- appellants seeking on an amended performance cific a contract to furnish financing construction buildings in the amount of damages and for for breach of the chancery tract. To court which suit the appellees’ demurrers, sustained ground the contract under was void Statute of Frauds. appeal,
There a motion to dismiss the because the not filed as due filing Rule 14 of The this Court. to be made on 23rd day. but was not made until the 27th excuse offered affidavit is that the sec- retary been left ar- whom the had at a rived Knoxville Post too Office late post preju- any particular it. Absence of an ex- appellees dice to is also asserted as cuse. enough to avoid
This that the violation rule. It is self-evident the first of this rule cannot be excused on shortcoming. mentioned, ground secretarial comply duty It counsel to Court, It the rules secretaries. rules away would be better to do with the on this than their violation to excuse ground. rule cannot be
The violation of the ground excused on the that no appellees Although referred is shown. in connection with other more substantial excuses, excusing violation requirements To meet the purpose rule, upon consideration memo- produced excuse. valid rule would, when randa appellee, the benefit in connection this mort- this Court. benefit of important gage to Marx furnish written of the most *3 one is directed at dis- prompt memoranda the of transaction which objectives Court: the satisfy the of The Chan- Statute Frauds. This Court judicial business. patch of did not cellor found that the' memoranda disposing of record jealous its compli- satisfy gave the the Frauds and willing to see and before any opportunity produce this Lamberts an rules, toward directed with its ance they might cir- the other memoranda have in enforcement left their end the the on which would transaction particular cumstance produced, none was the statute. When shown. the
Chancellor sustained demurrers Marx & Home Federal and Bensdorf. ruling on However, finally before dismiss, mention we should motion to the the act- doing, In so think we Chancellor con briefs have and by that the record correctly. relied on ed The memoranda the Chan agree with and that we sidered the Lamberts consists of thirteen docu- cellor, on violates contract sued which, § separately, and “any con T.C.A., providing that 23-201(4) collectively, what- made no commitments .... of lands the sale tract by Federal or & Bens- soever Home Marx year” will longer than one for a term money and dorf lend the Lamberts agreement support an unless action any security. Nor is take a trust deed as par signed in and “shall be by commitment made Lamberts to therewith, ty charged to be Home Federal and Marx & Bensdorf by lawfully autho person thereunto him accept give such a loan and to a trust deed rized.” to secure on real any the same described property. Summarized, by breach this is a Marx & Bensdorf is involved of an Marx & Bensdorf Home Federal and by memoranda other than the note and Lamberts to lend the alleged contract deed of trust for the construction loan of by $672,000.00. However, this deed of trust by interest in transfer an by upon null its terms became and void security loan. property real for the as payment release, done which was and loan by claimed the Lamberts was 1, 1968; October no terms contains of 412 was to be used for the construction thir- which considered alone or with and was to be advanced units teen instruments satisfies statute. ad- alleged each phases. four It was hav- by a note not, vance was to be evidenced The deed of trust does and could twenty-five years se- ing maturity not, terms, any greater under its secure by cured of trust on the land deed $672,000.00 amount for which it than the apartments which the were to be built. security. to furnish No oth- intended permanent That a commitment for er the instru- amounts are mentioned in ninety-six apartment struction of units language ment and therein indi- there .is no Federal, by construc- issued Home and a cating any apply to that it intention $672,000.00 tion loan in the amount of any men- other loan than the one Feder- made Home tioned. agent.
al's evi- This construction loan was trust, mortgage, A a deed one-year deed denced trust note and es- conveyance an legal aspect is a its to Marx & Bensdorf. Cherry, tate an in land and such 363-364. Lee v. 85 Tenn. interest as meaning Am.St.Rep. of 4 S.W. Otis Payne, (1888), A of trust of v. 86 Tenn. Frauds. are to parol. promise land cannot be made the same effect as the above. to make another the of a lien or owner light Considered in the statement upon charge equivalent land sell him of memoranda to satis- therein, an interest and within fy statute, the conclusion is unavoida- statute. 49 ble that the memoranda does the statute. Restatement, Contracts, 195, declares Our conclusion is that the Chancellor any regards interest which the law *4 disposed correctly of the case that this real estate is within the statute. dispose appeal Court must sus- 574, 579; taining And 76 A.L.R. 49 the motion to dismiss for noncom- Am.Jur. Frauds, 526, pliance Statute of 199 at held with the rule of this with re- is Court spect that assignments error, an oral mortgage contract to to to the give security argument. on real estate is unenforcea- It is so ordered. ble. DYER, CRESON, J., C. and Mc- It is also the rule that a CANLESS, JJ., Special and JENKINS,
cannot be modified or extended an oral Justice, concur. agreement to secure further indebtedness. Frauds, p. 118(2), C.J.S. REHEAR PETITION TO ON filed an ear appellants have theOn authority basis By the Lam- Rehear. Petition to nest and courteous berts’ contention that the trust initially that petition it is Marx & Bensdorf to secure the assign mistakenly treated the the Court $672,000.00loan can be looked as memo- argument as brief and ments of randum satisfying the Statute of 1971, Frauds 27, September filed rej be ected. Clerk, instead were received they were the date The rule which the thirteen instru- were cor mailed. Even if this contention exhibited as memoranda rect, error, brief and satisfying be Frauds must still not have course thusly: tested well stated gener- “The out, timely may point how filed. We memorandum, al in order ever, authority in cited to no that we are statute, must contain support position, and know appellants’ contract, essential expressed terms “appellant Rule none. 14 states with un- certainty they may clerk file with the derstood from the memorandum itself ” means . file the clerk To which it refers delivery actual to the clerk. Cf. State ex connected, which it resort- without Dykes, rel. Partin v. Tenn. 83 S. ing parol evidence. memorandum Moore, 106 W.2d Jones disclosing merely contract had been (1900). Tenn. made, showing without contract is, petition The other raised in the require- sufficient to matters opin- original in the fully ment of the Statute of Frauds that there ion, petition to rehear consequently a memorandum in writing of contract.” 49 is denied. §§