# Zack Cheek Builders, Inc. v. McLeod

> Tennessee Supreme Court · March 17, 1980 · 597 S.W.2d 888

URL: https://www.frixlaw.com/law-library/cases/9768225

## Case

- **Full name:** ZACK CHEEK BUILDERS, INC. and Zack Cheek, Individually, Defendants-Petitioners, v. Alan D. McLEOD and Margaret Elaine McLeod, Plaintiffs-Respondents
- **Court:** Tennessee Supreme Court
- **Decided:** March 17, 1980
- **Citations:** 597 S.W.2d 888; 1980 Tenn. LEXIS 448
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Martha Craig Daughtrey
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768225

## How later opinions describe it (automated extraction)

- holding that the trial court did not abuse its discretion in permitting an amendment to the pleadings that "was largely unnecessary, except as a housekeeping measure"
- noting that the issue was not tried by consent, in part, because the ground was not argued to the court
- discussing Tenn. R. Civ. P. 15.02

## Opinion text

OPINION ON PETITION TO REHEAR
The plaintiff-respondents have filed a petition to rehear in this case, contending that the court’s opinion overlooks two matters: (1) trial judge’s error in failing to give a proper jury instruction on the law of contributory negligence, and (2) the plaintiffs’ insistence that this court should adopt and apply an implied warranty of fitness for a particular purpose to the realty in question here.
These matters were not overlooked by the court, but were considered inapplicable to this case. As to the first issue, the record fails to indicate that the jury charge was incorrect, nor do we find that the matter was properly brought before this court. As to the second issue, the plaintiffs concede that Tennessee is not among those jurisdictions which recognize and apply an implied warranty to the sale of realty. But even if we were to reverse our previous position on this question, an implied warranty of habitability would not be applicable to this case, because the disputed issue involved a problem with the land itself, and not with the dwelling situated on it. Since there is no allegation in the record that the house was defective in any way, or unfit for habitation, there would be no liability on the part of the builder-vendor under an implied warranty theory.
As the defendants point out in their brief, Tennessee law recognizes that a vendor “is not required to exercise care to disclose dangerous conditions or to have an ordinarily retentive memory as to their existence, unless the condition is one which . an inspection by the vendee would not discover or, although the condition would be so discovered, the vendor realizes the risk involved therein and has reason to believe [the] vendee will not realize it.” Belote v. Memphis Development Co., 208 Tenn. 434 , 346 S.W.2d 441, 443 (1961). It was just this sort of question of fact that was considered by the jury in this case and resolved in the defendants’ favor. As we pointed out in our opinion, there is sufficient evidence in the record to support the jury’s decision.
The petition to rehear is denied.
BROCK, C. J., and COOPER, HENRY and HARBISON, JJ., concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768225. Public record. Not legal advice.