declining to find a final judgment on a claim involving an independent breach of contract action where the independent action had not yet been finally resolved despite the fact that no exception was filed to the claim
How later courts described this case
- declining to find a final judgment on a claim involving an independent breach of contract action where the independent action had not yet been finally resolved despite the fact that no exception was filed to the claim
- holding statute inapplicable to suit for damages arising from breach of a covenant not to compete
- refusing to conclude that an unliquidated claim for breach of contract became a final judgment when no exception was filed
- claim for unliquidated damages arising from alleged violation of covenant not to compete
Written by the judges who cited it.
The opinion
On Petition to Rehear
The Appellant, Petitioner below, has filed a forceful petition to rehear in this cause wherein it is insisted that this decision does violence to other opinions heretofore rendered by this Court.
This cause was carefully considered by the Court and the questions involved have given the Court considerable concern. It is true that at first glance the decision reached by the Court in the case at bar might seem to be in conflict with some of the prior decisions of the Court. However, insofar as we have been able to find, there is not a case directly in point wherein a claim arising out of a .breach of contract to do or not to do a particular act, Avhere there is no penalty or liquidation of the damages *321 provided by the contract, has been considered by the Court.
Judgments by default have never been favored by the courts. We believe it would be dangerous to establish a precedent whereby a claim for damages, not yet ascertained, can be filed with the Administrator of the estate who neglects to except to same within the time required by law, to allow a claim of this type to ripen into a judgment against which there is no relief.
We are still of the opinion that the case of Patrick v. Ford, reported in 37 Tenn. 531 , 532-533, is in point wherein the Court said that “Damages may arise upon a breach of contract to do or not to do a particular act, whether the agreement be written or verbal, where there is no penalty or liquidation of damages provided by the contract. And, in such case, the damages are no more certain than in the case of a tortious act, resulting in an injury to the person or property of another”.
.Petitioner seems to overlook the fact that he still has his day in court. If Petitioner has a just claim, surely he may expect the Circuit Court of his county to render justice.
Petitioner insists that the Court, by this opinion, is making new law. If this is true, we believe it to be good law.
This Court has said on numerous occasions that: “A petition for rehearing should never be used merely for the purposes of rearguing the case on points already *322 considered and determined, unless some new and decisive authority has been discovered, which was overlooked by the court”. Nashville v. State Board, of Equalization, 210 Tenn. 587 , 360 S.W.2d 458 -472.
We are satisfied with the conclusion reached in our opinion and, therefore, the petition to rehear is denied.