Friday, May 29, 2009

Court finds that pernanent, non-exclusive easement did not carry with it rights for use of right-of-way

ROBERT HOSKINS and wife, DELINDA HOSKINS v. STANLEY JOE WILLIAMS and wife, ELIZABETH WILLIAMS
(Tenn. Ct. App. February 23, 2009).

In this dispute over the use of a driveway, the Trial Court rejected plaintiffs' claim to an easement and held that plaintiffs were only entitled to the express easement granted in their deed. Plaintiffs appealed and we affirm the Judgment of the Trial Court.

Opinion may be found at the TBA website:

"While the proof is not clear regarding the exact placement of the granted easement, it is not disputed that it only goes so far up the existing driveway to the front of plaintiffs’ property, and does not include the “turn” into the side of plaintiffs’ home, which defendants sought to fence. While plaintiffs clearly have an easement that gives them access to their property from Kanott Lane, it does not follow the exact path of the existing driveway." Id.

"The easement gives plaintiffs access to their property from a public road, and give them the right to use a portion of the existing driveway, but it simply does not follow the entire path of the existing driveway, which is factually distinct from the Gammo case. Accordingly, we cannot imply a greater easement than what was expressly granted under the evidence in this case." Id.

"The case law explains that the term “non-exclusive” is generally used to refer to the type of rights that are maintained by the servient estate, and does not confer rights upon other property owners to use the easement to access their own property, otherwise, it would be designated as a public easement, and/or would not be designated as “access” to the subject property only." Id.

Seller claimed he did not know exact acreage, buyer waived his right to survey land; buyer had no misrepresentation claim when survey differed

LARRY BIELFELDT. v. DON TEMPLETON and RUBY TEMPLETON
(Tenn. Ct, App. February 19, 2009).

This case arises from a dispute over a contract for the sale of land. In the contract, Appellee Sellers made no warranty concerning the exact acreage of the tract. Appellant Buyer was given the right to have the tract inspected and surveyed prior to closing; however, he did not exercise that right. At the closing, Appellant also executed a waiver to any claims arising from a determination that the assumed acreage was incorrect. A survey performed after the closing indicated that the tract was approximately three acres less than the parties thought. Appellant Buyer brought suit against Appellee Sellers on grounds of fraudulent misrepresentation. Finding no error, we affirm.

Opinion may be found at the TBA website:

"From the inception of their dealings with Mr. Bielfeldt (or his agent), the Templetons never asserted that they knew the exact acreage of the tract.  Because they were not certain of the exact acreage, the Templetons specifically made no warranty, and gave Mr. Bielfeldt the right to inspect and/or survey the tract before the closing.  In short, it is apparent from the record that the Templetons were uncertain as to the exact acreage, and that they disclosed this fact from the beginning. Consequently, despite the fact that the tract was ultimately determined to be less than 15.31 acres, at the time of the contract, there is no evidence that the Templetons had knowledge of that fact. Moreover, because of the specific clause of the parties’ agreement allowing Mr. Bielfeldt to perform his own due diligence in ascertaining the exact acreage, there is no indication that the Templetons were trying to hide the anything. espite the fact that Mr. Bielfeldt was free to have the tract surveyed, and despite the Templetons’ agreement to modify the  price accordingly, Mr. Bielfeldt did not avail himself of this right until after the closing.  A person who knows the danger, appreciates the danger, and voluntarily exposes himself or herself to the danger is deemed to have assumed the risk of the injury he or she incurs.  Under Tenn. R. Civ. P. 8.03, express assumption of the risk is a complete defense to liability. In not exercising his right to have the tract surveyed prior to the closing, Mr. Bielfeldt assumed the risk that the property contained less acreage." Id.


"Moreover, as set out above, Mr. Bielfeldt voluntarily signed a waiver of his right to bring a claim against the Templetons based upon actual acreage.  Therein, Mr. Bielfeldt expressly agreed that, in the event a later survey revealed that the tract contained less acreage, he would have no claim against the Templetons for any credit or reduction of the sales price.   Waiver is defined as the voluntary relinquishment or abandonment of a known right or privilege.   A party who, by express or implied waiver, has refrained from exercising or enforcing his or her rights in a matter may be equitably estopped from asserting a claim.  Consequently, we conclude that Mr. Bielfeldt has waived the very relief he now seeks." Id.


Court finds that promotional materials may have created a general plan which created implied restrictive covenants

R. DOUGLAS HUGHES ET AL. v. NEW LIFE DEVELOPMENT CORPORATION
(Tenn. Ct. App. February 18, 2009).


Homeowners in a wooded subdivision established as part of a mountain preserve development brought suit to prevent purchaser of surrounding 1,400 acres from developing the property. The trial court granted judgment on the pleadings on all of the plaintiffs' claims. We have concluded that the trial court erred in granting judgment on the pleadings with respect to some of the plaintiffs' claims. We therefore affirm in part and reverse in part.


Opinion may be found at the TBA website:

"Under well-settled Tennessee law, “[a] grantor has a right to impose such legal restrictions as he desires upon the property he aliens.” Ridley v. Haiman, 47 S.W.2d 750, 753 (Tenn. 1932). Such restrictions, commonly known as restrictive covenants, are not favored because they interfere with the free enjoyment of property and are to be strictly construed. Restrictive covenants are, however, binding on remote grantees if they appear in the chain of title or if the grantee had actual notice of them when the grantee acquired title. Restrictive covenants, like other contracts, are enforceable according to the expressed intent of the parties." Id.
"Tennessee courts have recognized and enforced implied restrictive covenants under certain circumstances. Our Supreme Court has held that implied restrictive covenants may arise in three circumstances: “(1) implication by necessity, (2) implication by conveying property with restrictions under a general plan or scheme of development, (3) implication by reference to a plat.” Id.
"The second theory for implied restrictive covenants, implication based upon a general plan of development, requires more analysis. Where there is a common development plan, courts have enforced implied restrictive covenants “under the rationale that a remote grantee’s knowledge of such restrictions may be imputed from the existence of a common plan as evidenced in deeds or on the plat itself.” The underlying principle is that “when grantees purchase land within a development in reliance on the general scheme or plan as expressed by the developer, equity requires that the grantees be able to mutually enforce the restrictions.” Id. Establishment of a general plan of development may be “by implication from a filed map, or by parol representations made in sales brochures, maps, advertising, and oral statements on which the purchaser relied in making his purchase,” by the grantor’s promises to insert reciprocal covenants in all deeds, or by the grantor’s pursuit of a course of conduct reflecting a neighborhood scheme." Id.
"In contrast to the disclaimer, the italicized language suggests that the Developer is bound by the Master Plan as to “the general location and approximate acreage of the Common Properties.” This language creates some ambiguity in the Declaration. On one hand, the Developer is entitled to revise the Master Plan at his discretion and the Declaration expressly disclaims any implied restrictive covenants. On the other hand, the above provision suggests that the Developer cannot revise the Master Plan to change the general concept concerning the Common Properties."Id.

Landowners prohibited from obstructing road because it was deemed to be a county road; did not have title to convey

LAWRENCE COUNTY v. GEORGE SHAFFER, ET UX, ET AL. (Tenn. Ct. App. February 13, 2009).

After Lawrence County landowners installed a gate across an unpaved rural road, the County filed a declaratory judgment action to determine the rights of all the parties whose properties adjoined that road, as well as the right of the County to remove the obstruction. The landowners who installed the gate argued that the road had never been legally declared a county road and that the gate was necessary to prevent their neighbors from trespassing on their property. After a hearing, the trial court found (1) that the road was a county road and (2) that its entire length was contained in an easement which no one was allowed to obstruct. The court accordingly ordered the landowners to remove the gate. We affirm.


The opinion may be found at the TBA website:

It is axiomatic that you cannot convey an estate greater than the one you received. A deed which purports to convey a greater estate than the grantor has will be void only as to the excess and will be construed as a conveyance of that which it was in his power to convey.”  It follows that the Lesters could not convey an ownership interest in the roadway to the Shaffers even if they had wanted to.  But, their deed to the Shaffers demonstrates an opposite intention, for it states that it includes “all property that lies to the right of the above described roadway and easement formerly conveyed to George Shaffer and wife Pat Shaffer...”  Thus, the Shaffers only obtained property on one side of the roadway, and therefore had no right to install a fence on the other side."Id.

Classification of nuisance, whether permanent or temporary, determines when the statute of limitations begins

SUE LEGGETT v. PAUL ALLEN DORRIS, ET AL. (Tenn. Ct. App. February 9, 2009).

This is an appeal from a nuisance case. The plaintiff landowner filed a complaint alleging a continuous nuisance caused by grading completed on adjacent property. The plaintiff alleged that the grading had altered the natural drainage pattern, causing damage to her house. The complaint sought damages and injunctive relief. The defendants sought summary judgment, raising the statute of limitations as a defense. The trial court agreed and granted defendants' motion. genuine issue of material fact remains in dispute, we reverse.

Opinion may be found at the TBA website:

"A proper classification of the nuisance, either temporary or permanent, must be made in order to analyze a statute of limitations defense.  A nuisance claim, because it is an action for an injury to personal or real property, is governed by a three year statute of limitations.  Tenn. Code Ann. § 28-3- 105.  When the nuisance is temporary, however, “the very continuation of the nuisance is a new offense entitling complainants’ to recover damages accruing within the statutory period next preceding, although more than the statutory period has elapsed since the creation of the nuisance.”   When the nuisance is permanent, “the statute of limitations commences to run from the time of the creation of the nuisance.”  Id.


"The characterization of a nuisance is a question of fact.  In this case, the fact is material because it “must be decided in order to resolve the substantive claim or defense at which the motion [for summary judgment] is directed.”  Therefore, the Appellees would need to conclusively establish that the alleged nuisance is permanent.  In their affidavit and statement of undisputed facts, however, the Appellees did not present any evidence on this issue.  Instead, the Appellees only presented evidence to establish a time line of construction.  This time line establishes 

the statute of limitations defense only if the nuisance is permanent." Id.

MICHAEL SHROPSHIRE v. BETTY ROACH (Tenn. Ct. App. February 2, 2009).

A home seller appeals a jury verdict finding that she intentionally misrepresented water conditions in the basement in connection with the sale of her home. According to the seller, the jury verdict was against the weight of the evidence and the trial court erroneously allowed opinion testimony from the contractor who repaired the water damage. We affirm, finding that material evidence supports that the jury verdict and that the trial court did not err in allowing the testimony.

Opinion may be found at the TBA website:

Commencement of foreclosure proceedings does not constitute an increase in hazard; no notice to insurance company required

U.S. BANK, N.A., as servicer for the TENNESSEE HOUSING DEVELOPMENT AGENCY v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY (Tenn. January 29, 2009).

The issue presented in this case is whether the commencement of foreclosure proceedings constitutes an increase in hazard for notice purposes under a standard mortgage clause in an insurance policy. The parties to this dispute are the bank that loaned funds to a homeowner for the purchase of a house and the insurance company that issued a personal fire and extended coverage insurance policy on the premises. After the homeowner became delinquent on her payments, the bank began foreclosure proceedings by notifying the homeowner of its intent to foreclose on the house. No notification of the foreclosure was given to the insurance company which insured the house against fire loss. Before the foreclosure process was complete, the homeowner filed for bankruptcy, which stayed the foreclosure proceedings. Thereafter, the house was destroyed by fire. The insurance company refused to pay the insurance proceeds to the bank on the theory that the commencement of foreclosure proceedings constituted an increase in hazard of which the bank was required to notify the insurance company under the policy. The bank filed suit against the insurance company for breach of contract, bad faith refusal to pay an insurance claim, and violation of the Tennessee Consumer Protection Act. The trial court granted partial summary judgment to the bank, concluding that the bank's failure to give the insurer notice of the foreclosure proceedings did not invalidate the insurance coverage. The Court of Appeals reversed, finding that the bank's initiation of foreclosure proceedings amounted to an increase in hazard under the policy and the bank's failure to provide notice precluded coverage. After careful review, we conclude that commencement of foreclosure proceedings does not constitute an increase in hazard under the terms of the insurance policy or the applicable statutory provisions, and therefore, no notice was required to be given to the insurance company. Accordingly, we reverse the judgment of the Court of Appeals.

Opinion may be found at the TBA website:

"Our review of cases from other jurisdictions reveals that courts have reached a similar conclusion on the issue of whether the commencement of foreclosure proceedings constitutes an increase in hazard for purposes of a standard mortgage clause.  In an Indiana case, for example, the insurance policy contained a provision requiring the lienholder to notify the insurance company of “any . . . increase of hazard which shall come to his knowledge.”   After the insured property was destroyed by fire, the insurance company argued that the commencement of foreclosure proceedings by the lienholder prior to the fire “so greatly increased the risk of loss by fire to the property insured, as necessarily to avoid the contract of insurance.”  Id.  The Supreme Court of Indiana rejected this argument, holding that the “courts can not assume that the mere commencement of the foreclosure proceedings, of itself, increased the hazard of the risk . . . to such an extent as would, in the absence of notice or consent, avoid the contract of insurance.”   The Indiana Supreme Court explained that if the insurance company had “desired to be notified of the commencement of foreclosure proceedings, or had supposed that the mere commencement of such proceedings would increase the hazard of the risk, it would have stipulated for such notice in direct terms.”Id.


"In similar cases involving standard mortgage clauses requiring notice of an “increase of hazard,” courts have found that the plain meaning of those words do not include an event such as a foreclosure proceeding, but rather, refer to physical conditions on the insured property posing a more hazardous risk to the property.  Commentator Commentators on insurance law have likewise observed that the “foreclosure of a mortgage on the insured premises is not such an increase of hazard as requires notice to the insurer.”  Id.


Court supports land surveyor who found that a creek divided to properties instead of a fence erected for "convenience" rather than boundary purposes

RICHARD LAFEVER ET AL. v. LLOYD B. LAFEVER ET AL. (Tenn. Ct. App. January 26, 2009).

In this boundary dispute, the trial court found in favor of the plaintiffs. Although we have concluded that the trial court erred in applying a presumption based upon the payment of taxes, the evidence does not preponderate against the trial court's determination of the proper boundary line. We therefore affirm.

Opinion may be found at the TBA website:

“In determining disputed boundaries resort is to be made first to the natural objects or landmarks, because of their permanent character.  Next, the artificial monuments or marks.  Then, the boundary lines of adjacent land owners.  And then, the courses and distances.” Id.


"Mr. Bartlett determined that the creek, a natural landmark, was the proper boundary line between the two properties.  Mr. Helton determined that an old fence line, an artificial monument, divided the two properties.  It is also significant that Plaintiffs put on evidence of a previous oral agreement between predecessor landowners that the creek would be the boundary line between their properties.  Such agreements are enforceable with proper proof.  Jack v. Dillehay, 194 S.W.3d 441, 447 (Tenn. Ct. App. 2005).  If parties enter into such an oral agreement, “they and their successors are estopped from challenging the line, even if it is later discovered that the parties were mistaken as to the location of the line at the time of the agreement.”   Id.


"Given the evidence concerning the condition of the fence and the conflicting theories as to whether or not it was a boundary fence, we cannot find that the evidence preponderates against the trial court’s conclusion that this was a fence of convenience and not a boundary fence." Id.




Seller's contradictory evidence about contract terms leads to win for Buyer; Seller refused to close on real property after contract was signed

WILLIAM A. BAKER, II v. HOMER J. JOHNSON, SR. (Tenn. Ct. App. January 26, 2009).

Shortly after the parties entered into a contract for the sale of a piece of real estate, the seller refused to transfer possession and informed the buyer that he did not intend to close on the property. The buyer filed suit for breach of contract and demanded specific performance. The seller denied that the contract of sale was valid or enforceable and presented a number of different and inconsistent allegations to support his contention. The trial court granted summary judgment to the buyer. We affirm.


Opinion may be found at the TBA website:

"Such contradictory assertions not only destroy the credibility of the person making them, but they force the trial court to disregard them as a matter of law.  Our courts have long held that mutually contradictory statements by the same witness are “no evidence” of the fact sought to be proved. Another expression of the same idea is that “[c]ontradictory statements of a witness in connection with the same fact have the effect of cancelling each other out. However, the cancellation rule applies only if the allegedly contradictory statements are unexplained or if neither statement can be corroborated by other competent evidence." Id.


"Finally, we note that even if Mr. Johnson had succeeded in establishing the authenticity of the documents he submitted, Mr. Baker would still be entitled to prevail.  It is a well-established tenet of contract law that once a party has formed a contract by accepting an offer, he cannot subsequently vary the terms of that contract by presenting a counter-offer to the other party.  Both versions of the Purchase and Sale Agreement contain Mr. Johnson’s signed acknowledgment that the buyer’s offer was accepted at 2:00 p.m. on July 26, 2005.  The signature on the purported counter-offer bears the same date, but recites a time of 4:30 p.m.  Thus, even if such a counter-offer had been presented to Mr. Baker, it would have had no legal effect." Id.


Prescriptive easement usage must be adverse;conclusory statement that usage was adverse is not sufficient proof

GEORGE W. THOROGOOD, JR., ET AL. v. D'ALTON PROPERTIES, LLC, ET AL. (Tenn. Ct. App. January 23, 2009).

The plaintiffs, George W. Thorogood, Jr., and his wife, Charlotte E. Thorogood, and the defendant Theresa Evans, respectively, reside on adjacent subdivision-size lots in Cleveland, Tennessee. The lot on which Ms. Evans resides is owned by the defendant D'Alton Properties, LLC. The two lots front on Ocoee Street and back onto Chambliss Avenue. The northern boundary line of the Thorogoods' property is the southern line of D'Alton's property. This litigation concerns a paved driveway that had been located on D'Alton's property prior to being removed in 2006. The driveway was located entirely on the LLC's property. It ran along the southern line of that property, i.e., the northern boundary of the Thorogoods' property, from Ocoee Street to Chambliss Avenue, a relatively short distance. The Thorogoods filed suit against D'Alton and others seeking to be declared the holders of a prescriptive easement in the driveway. The record shows, without dispute, that the Thorogoods, as well as other members of the general public, used the driveway as a matter of convenience. In March 2006, after making extensive renovations to the residence on its property, D'Alton removed the asphalt driveway and landscaped the "driveway" area. When issue was joined in this litigation, the Thorogoods filed a motion for summary judgment, which the trial court granted. The trial court concluded that there were no genuine issues of material fact as to the Thorogoods' right to a prescriptive easement based upon the court's finding that the driveway had been used by residents of the Thorogoods' property "for a period of greater then [sic] twenty (20) years, being at least from 1950 until 1976." The court ordered a mandatory injunction requiring D'Alton to remove the landscaping and re-pave the driveway; it also permanently enjoined D'Alton from interfering with the Thorogoods' use of the easement. The trial court stayed enforcement of the mandatory injunction pending the filing by D'Alton of a bond in the amount of $7,500. The bond was filed. D'Alton appeals. We reverse the trial court's three relevant judgments, pursuant to the provisions of Court of Appeals Rule 10 and remand for further proceedings.


Opinion may be found at the TBA website:

"In order to establish prescriptive easement under the common law of this state, the usage must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period.  The requisite period of time of continuous use and enjoyment for a prescriptive easement is twenty years." Id.


'The Thorogoods rely upon the testimony of Mr. Thorogood to establish use of the driveway from “approximately 1950” to 1976 and thereafter until the driveway was removed by D’Alton in 2006.  Use by non-residents of the alleged servient estate is clearly shown.  What is not shown is that the use was adverse under claim of right.  Mr. Thorogood’s only testimony with respect to the Cumulus requirement of a use “adverse, under claim of right” is his conclusory statement that the use was “adverse to the owners of said property.”  Such a conclusory statement, being inadmissible, cannot be considered by us on the subject of whether the Thorogoods are entitled to summary judgment.   See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).  There is no admissible evidence in the record before us showing that the use from 1950 and thereafter was “adverse, under claim of right.”'

City barred from enforcing property tax lien on property sold after bankruptcy proceeding

STATE EX REL. CITY OF CHATTANOOGA, TENNESSEE v. 2003 DELINQUENT TAXPAYERS, ET AL.

The issue in this case is whether the trial court had jurisdiction to hear a suit filed by the City of Chattanooga ("the City") to enforce a real property tax lien on property acquired by Custom Baking Company through a sale conducted by a bankruptcy court trustee. The previous owner of the real property, which was alleged to have been delinquent in payment of its city property taxes, filed a bankruptcy petition in the United States Bankruptcy Court for the District of Delaware prior to this action. The City was listed as a creditor in the bankruptcy action and was notified of the proposed sale of the debtor's assets by the bankruptcy trustee and filed no objection. After the sale of the property, the Bankruptcy Court approved the sale free and clear of all liens, claims, and encumbrances, and retained jurisdiction "to determine any claims, disputes or causes of action arising out of or relating to the proposed sale." The City brought this action in state Chancery Court several months after the entry of the Bankruptcy Court's order. Upon review, we affirm the trial court's judgment that it lacked jurisdiction to hear and decide this case and that the City is barred by the collateral attack doctrine from bringing this action to circumvent the Bankruptcy Court's prior valid final order.

Opinion may be found at the TBA website:

"The Bankruptcy Court’s order contains the following clear and unambiguous provisions that are dispositive of this case:  (1) “all persons and entities holding liens, claims, encumbrances and interests . . . in the Assets prior to Closing, including, but not limited to, all . . . governmental, tax and regulatory authorities . . . hereby are forever barred, estopped and permanently enjoined from asserting such liens, claims, encumbrances and interests against the Buyer, its successors or assigns, or against the Assets,” and (2) “[t]his Court shall retain jurisdiction to determine any claims, disputes or causes of action arising out of or relating to the Proposed Sale.”  The City does not assert that the Bankruptcy Court did not properly assume jurisdiction pursuant to 28 U.S.C. §§ 157 and 1334; it recognized the Bankruptcy Court’s jurisdiction by making an appearance and filing a proof of claim as a creditor.  Further, the City had notice of every pertinent step in Bankruptcy Court prior to the sale of the debtor’s assets and, therefore, had ample opportunity to object and have its position and arguments heard and considered before the Bankruptcy Court." Id.

"The present case does not involve an exception to the automatic stay in a bankruptcy proceeding, such as the “police or regulatory power” exception addressed in Chao.  Nor did the Chao court, which ultimately held the bankruptcy court had exclusive jurisdiction under its facts, address the situation of a subsequent collateral attack in state court upon a final order validly issued by a bankruptcy court that specifically retains jurisdiction over causes of action arising out of or relating to the authorized sale of a debtor’s assets.  Thus, the Chao opinion is of no avail to the City under the present circumstances." Id.

Misrepresentation by concealment unavailable when party had an opportunity to independently verify the information

RURAL DEVELOPMENTS, LLC v. JOHN H. TUCKER, CLARA TUCKER, GENE CARMAN REAL ESTATE AND AUCTIONS FAMILY PARTNERSHIP, LP d/b/a GENE CARMAN REAL ESTATE AND AUCTION, GENE CARMAN AND BARRY WITCHER
(Tenn. Ct. App. January 15, 2009). 

This case involves allegations of intentional misrepresentation and associated causes of action all related to the sale of a spring for commercial development. Appellant contends that the output of the spring was misrepresented. The trial court granted summary judgment as to a number of causes of action, and the appellant then non-suited his remaining claims and appealed. For the reasons stated herein we affirm the trial court.

Opinion may be found at the TBA website:

"In order to prove a claim based on fraudulent or intentional misrepresentation, a plaintiff must show that: 

1) the defendant made a representation of an existing or past fact;  2) the representation was false when made;  3) the representation was in regard to a material fact; 4) the false representation was made either knowingly or without belief in its truth or recklessly; 5) plaintiff reasonably relied on the misrepresented material fact; 6) plaintiff suffered damage as a result of the misrepresentation.  

The above is sometimes augmented by principles of misrepresentation by concealment which is stated as: 

1. The defendant concealed or suppressed a material fact;

2. The defendant was under a duty to disclose the fact to the plaintiff; 

3. The defendant intentionally concealed or suppressed the fact with the intent to deceive the plaintiff; 

4.  The plaintiff was not aware of the fact and would have acted differently if the plaintiff knew of the concealed or suppressed fact; and 

5. As a result of the concealment or suppression of the fact, the plaintiff sustained damage. " Id.


"In order to determine whether plaintiff’s reliance upon Davis’ statements was reasonable, several factors must be considered, including “the plaintiff’s business expertise and sophistication,” the “availability of the relevant information” and “the opportunity to discover the fraud.” Id.


"Here Mr. Cook actually went to the spring but only observed.  He was again invited to inspect the spring but did not.  Mr. Cook was knowledgeable in the commercial development of springs. The spring was at the very core of this sale, yet Mr. Cook failed to closely inspect it or measure its output. Where the means of information are at hand and equally accessible to both parties so that, with ordinary prudence or diligence, they might rely on their own judgment, generally they must be presumed to have done so, or, if they have not informed themselves, they must abide the consequences of their own inattention and carelessness." Id.


"The doctrine of frustration of purpose only applies in cases of the most extreme hardship where there has been an unanticipated circumstance that, under the equities at play, justify placing the risk of avoidance of the contract on the party not claiming frustration of purposes. The question in cases involving frustration is whether the equities of the case, considered in light of sound public policy, require placing the risk of a disruption or complete destruction of the contract equilibrium on defendant or plaintiff under the circumstances of a given case (citations omitted) and the answer depends on whether an unanticipated circumstance, the risk of which should not be fairly thrown on the promisor, has made performance vitally different from what was reasonably to be expected. . ." Id.