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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE
April 4, 2002 Session KLOSTERMAN DEVELOPMENT CORP. v. OUTLAW AIRCRAFT SALES, INC., ET AL.
A Direct Appeal from the Chancery Court for Montgomery County No. 99-06-0044 The Honorable James E. Walton, Judge

No. M2001-02586-COA-R3-CV - Filed May 16, 2002

This case involves a contract for the sale of an aircraft. By amended complaint, plaintiffpurchaser sued seller and seller's agent for rescission of the contract and defendant-seller, by counter-claim, sought the amount due for repairs made on the aircraft pursuant to the contract. The trial court ordered the contract rescinded but failed to make provisions to put the parties in status quo. The purchaser, seller's agent, and seller appeal. We reverse the judgment of the trial court as it pertains to seller's agent, modify the judgment for rescission to include provisions of restoring the status quo of the parties. The judgment is affirmed as modified.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Reversed In Part; Affirmed as Modified W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS, J. and DAVID R. FARMER , J., joined. Charles C. Morrow, Nashville, For Appellant, Klosterman Development Corporation Paige Waldrop Mills, Jody E. O'Brien, Nashville, For Appellees Outlaw Aircraft Sales, Inc. and David Cole OPINION On November 11, 1997, Steve Klosterman (hereinafter "Mr. Klosterman"), the president of the plaintiff, Klosterman Development Corporation, traveled to Clarksville, Tennessee in response to an advertisement in a national aviation publication known as Trade-A -Plane about a Cessna 421A for sale by the defendant, Outlaw Aircraft Sales, Inc. (hereinafter "Outlaw"), located in Clarksville, Tennessee. That same day, Mr. Klosterman signed a "Purchase Order" agreeing to purchase the Cessna 421A for $72,500.00 and paid $1000.00 as a down-payment or deposit. This purchase price did not include additional work such as required maintenance for the "annual" inspection necessary

for the aircraft to be licensed to fly, new paint, new interior and the repair and improvement of the aircraft's avionics. Mr. Robert Wyatt, president of Outlaw, also signed this "Purchase Order" which lists Mr. David Cole as the salesman for Outlaw and includes the following under the heading "Conditions of Sale": "Additional Items to be Approved." The back of this "Purchase Order" contains "Terms and Conditions" which provides in pertinent part: 3. The Purchaser hereby agrees that by and upon his taking physical possession of the aircraft he acknowledges that he has examined the aircraft and accepts it in the condition received unless otherwise noted on the reverse side hereof, and the Purchaser further acknowledges that the equipment list on the reverse side hereof is installed in the aircraft and that the equipment is accepted in the condition received unless otherwise noted. * * *

6. It is further agreed that this Purchase order, when accepted by Seller, is the only contract controlling this sale and purchase and that it contains all agreements, expressed or implied either verbal or in writing, and Purchaser acknowledges receipt of a copy of the same. Mr. Klosterman then applied for a loan in the amount of $80,000 through a Clarksville bank that Outlaw had previously used to finance aircrafts for its customers. Shortly thereafter, the loan officer, Mr. Bobby Freeman, informed Mr. Klosterman that his loan had been approved. The parties scheduled the closing of the sale of the aircraft for November 22, 1997. On November 22, 1997, the parties executed another "Purchase Order" containing the original sale price of the airplane, $72,500.00, plus "added equipment" in the amount of $50,000.00 totaling $122,500.00. This "Purchase Order" was signed by Mr. Klosterman for plaintiff and Mr. Cole for defendant and contains the following under the heading "Conditions of Sale": Maintenance for Annual Inspection New Paint New Interior Avionics Repair & Improvement Total $15,000.00 $10,500.00 $12,800.00 $11,700.00 -------------$50,000.00

The back of this "Purchase Order" contains the same "Terms and Conditions" as the November 11, 1997, "Purchase Order" provided above.

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Also, on November 22, 1997, the parties executed a document entitled "Duplicate Original Aircraft Purchase Agreement" (hereinafter "Aircraft Purchase Agreement"). This document provides in pertinent part: 1. AIRCRAFT. SELLER AGREES TO SELL AND PURCHASER AGREES TO PURCHASE THAT CERTAIN AIRCRAFT (AIRCRAFT) GENERALLY DESCRIBED HEREIN BELOW AND MORE PARTICULARLY IN EXHIBIT A. MANUFACTURER/YEAR: CESSNA 1969 SER.NO. 421A0032 MODEL: 421A REG. NO.: N241A 2. PURCHASE PRICE. PURCHASER AGREES TO PAY AND SELLER AGREES TO ACCEPT THE TOTAL PURCHASE PRICE OF SEVENTY TWO THOUSAND FIVE HUNDRED ($72,500.00) U.S. DOLLARS PAYABLE AS FOLLOWS: A. PURCHASER HAS MADE AN EARNEST MONEY DEPOSIT IN THE SUM OF ONE THOUSAND ($1,000.00) U.S. DOLLARS. EXCEPT AS PROVIDED IN SECTION 4 BELOW, THIS EARNEST MONEY DEPOSIT SHALL BE NONREFUNDABLE AND SHALL EITHER BE PAID TO SELLER OR APPLIED TO THE PURCHASE PRICE OF THE AIRCRAFT IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT. B. BALANCE OF PURCHASE PRICE IN THE AMOUNT OF SEVENTY ONE THOUSAND FIVE HUNDRED ($71,500.00) U.S. DOLLARS PAYABLE UPON DELIVERY. PURCHASER SHALL PAY ANY AND ALL DOCUMENTARY STAMPS, SALE/USE TAXES, DUTIES OR FEES ASSESSED OR LEVIED BY ANY FEDERAL, STATE, LOCAL, OR FOREIGN TAXING AUTHORITY AS A RESULT OF THE SALE, DELIVERY, REGISTRATION, OR OWNERSHIP OF THE AIRCRAFT. ALL PAYMENTS SHALL BE IN U.S. CURRENCY WITH GOOD AND COLLECTED FUNDS (BY MEANS OF CASH, CASHIERS OR OFFICIAL BANK CHECK OR WIRE TRANSFER).

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4. ACCEPTANCE OF AIRCRAFT. ON OR ABOUT NOVEMBER 11, 1997 SELLER DELIVERED AIRCRAFT TO CLARKSVILLE, TENNESSEE WHERE PURCHASER CONDUCTED A PREPURCHASE INSPECTION TO VERIFY PROPER AIRCRAFT SYSTEM AND ENGINE(S) OPERATION, TO EXAMINE AIRCRAFT, ITS ENGINE(S), LOG BOOKS AND MAINTENANCE RECORDS. PURCHASER SHALL PAY FOR THE COST OF ITS PREPURCHASE INSPECTION. PURCHASER HAS CHOSEN TO PURCHASE THE AIRCRAFT IN ITS UNLICENSED CONDITION AND TO HAVE ALL IMPROVEMENTS, ANNUAL INSPECTION, REPAIRS, NEW PAINT AND NEW INTERIOR UNDER THE SUPERVISION AND CONSULTATION WITH OUTLAW AIRCRAFT SALES. ALL WORK WILL BE DONE AT AN ADDITIONAL EXPENSE TO THE PURCHASER. 5. DELIVERY. DELIVERY SHALL TAKE PLACE ON OR ABOUT NOVEMBER 22, 1997. DELIVERY SHALL BE AT CLARKSVILLE, TENNESSEE. COST OF DELIVERY SHALL BE AT PURCHASER'S EXPENSES (NOT LIMITED TO FUEL, AND AIRLINE FARE). AIRCRAFT WILL BE DELIVERED EQUIPPED AS INSPECTED, WITH LOG BOOKS, MAINTENANCE RECORDS, AND FLIGHT MANUALS OF AIRCRAFT. PURCHASER SHALL PAY TO SELLER THE FULL PURCHASE PRICE UPON DELIVERY. CONFIRMATION OF AIRCRAFT DELIVERY SHALL BE IN WRITING BY USE OF EXHIBIT C ATTACHED HERETO. * * *

10. ENTIRE AGREEMENT. THE TERMS AND CONDITIONS OF THIS AGREEMENT CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES HERETO AND SUPERSEDES ALL PREVIOUS NEGOTIATIONS, REPRESENTATIONS, AND AGREEMENTS BETWEEN THE PARTIES. THIS AGREEMENT MAY NOT BE VARIED, AMENDED, OR SUPPLEMENTED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY BOTH THE PARTIES. 11. DEFAULT. IF PURCHASER SHALL DEFAULT UNDER THIS AGREEMENT, SELLER SHALL HAVE THE OPTION OF -4-

SUING FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, REASONABLE ATTORNEY'S FEES, OR, RESCINDING THIS AGREEMENT WHEREUPON ALL SUMS PAID HEREUNDER SHALL BE RETAINED BY SELLER AS LIQUIDATED DAMAGES. Although defendant paid Outlaw $72,900.001 during the closing on November 22, 1997, he did not then take delivery of the aircraft. Outlaw agreed to supervise the necessary maintenance and improvements to be made on the aircraft which were listed in the November 22, 1997, "Purchase Order." Thereafter, Mr. Klosterman received a facsimile document dated January 23, 1998, and signed by Mr. Cole which provides in pertinent part: PLEASE CALL AND TELL ME TO PRESS FORWARD ON THE ANNUAL SINCE OUR SHOP HAS FREED UP ON THE TWO BIG PROJECTS THAT WERE AHEAD OF YOUR AIRCRAFT. ALSO, SEND A PAYMENT ON THE ANNUAL ACCOUNT OF $5,000.00 MINIMUM PAYABLE TO AIRCRAFT MAINTENANCE, INC. WITHIN THE NEXT TEN DAYS. THIS WILL KEEP THINGS MOVING AS WELL. I HAVE UPS YOU THE SQUAWK2 LIST. BEST REGARDS, [Signature] DAVID COLE As instructed, Mr. Klosterman sent a check to Outlaw dated January 27, 1998, in the amount of $5,000.00 payable to Aircraft Maintenance, Inc. Shortly thereafter, Mr. Klosterman received another squawk list that was shipped on January 31, 1998 and dated November 25, 1997. This squawk list included approximately 128 items as opposed to the squawk list Mr. Klosterman received on November 22, 1997, which contained approximately 35 items.

Mr. Freeman, the loan officer, had prepared the loan check in the amount of $72,900.00 instead of the correct balance of $71,500.00. This was an overpayment of $1400.00 which included Mr. Klosterman's $1000.00 downpayment or deposit and a $400.00 overpayment by the bank. Mr. Klosterman was entitled to a cre dit of $ 140 0.00 to be applied towards the upcoming repairs and paint which, according to the "Aircraft Purchase Agreement", was to be done under Outlaw's supervision.
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A squawk list contains an aircraft's mechanical problems and is prepared by an aircraft mechanic.

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Several months later, Mr. Klosterman received another facsimile document from Mr. Cole dated July 8, 1998, informing Mr. Klosterman that July 20, 1998, is the projected completion date for the annual maintenance and ten (10) items that were still outstanding. According to the record, after the annual maintenance was performed on the aircraft, Outlaw had originally planned on flying the aircraft to a company in Oklahoma for the painting and interior work. However, in July of 1998, Mr. Cole suggested to Mr. Klosterman that they use Custom Planes, Inc. (hereinafter "CPI"), located in Lawrenceville, Illinois, to perform the painting and interior work on the aircraft. Mr. Klosterman then traveled to CPI to discuss having the work done there and on August 1, 1998, Mr. Klosterman agreed to pay CPI $25,000 to paint the aircraft and install leather interior and a coffee maker. Mr. Klosterman paid $12,000.00 to CPI as a down-payment on the work. On November 18, 1998, Mr. Robert O. Wyatt, the president of Outlaw, sent Barry Kemp, defendant's lawyer, a letter which provides in pertinent part: YOU SHOULD BE RECEIVING BY UPS THIS MORNING A COPY OF THE WORK ORDER ON N241A. THERE ARE 19 PAGES TO THIS WORK ORDER. MR. KLOSTERMAN HAS PAID $6,400.00 ON THIS WORK SO FAR. IF YOU NEED ANY EXPLANATION ON THE BREAK DOWN OR PARTS PLEASE LET US KNOW. MR. KLOSTERMAN NEEDS TO NOTIFY HIS INSURANCE COMPANY THAT WE ARE GOING TO MOVE THE AIRCRAFT AND MAKE SURE THE PILOT IS APPROVED FOR A FERRY FLIGHT. * * *

WHEN THE AIRCRAFT PAINT AND INTERIOR ARE FINISHED WE WILL WEIGH THE AIRCRAFT AND COMPUTE THE CURRENT EQUIPMENT LIST AND WEIGHT AND BALANCE. On November 27, 1998, Mr. Cole sent Mr. Klosterman a handwritten facsimile document providing in pertinent part: Robert [Wyatt] says the C-421 is ready to go to Paint Shop. Requested Pilot approval requirements from your Insurance Policy "Open Pilot Warranty Clause" or phone number. Call or fax Robert.

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On December 21, 1998, Mr. Wyatt sent a letter to Mr. Klosterman which provides in pertinent part: PER YOUR REQUEST WE FEEL THAT N241A AS EQUIPPED AND THE TIMES SHOULD BRING BETWEEN $170,000.00 AND $180,000.00 WITH THE PURPOSED (sic) NEW PAINT AND INTERIOR. On June 8, 1999, plaintiff filed a complaint against defendants, Outlaw Aircraft Sales, Inc. and David Cole, seeking damages and possession of the plane. The complaint provides in pertinent part: IX Defendant Outlaw Aircraft Sales, Inc. had agreed to fly the plane to Customs Planes, Inc. for the paint job and other work after they had done the annual, therefore, the Plaintiff assumed that since the Defendant was doing the annual inspection on January 27, 1998 and six (6) months later called Plaintiff and told him to contact Customs Planes, Inc. for the other work (painting and interior) the plane was ready as far as the annual was concerned. Several weeks passed before Plaintiff heard anything further about the status of the extra work to be done on his plane. Then Plaintiff received several pages of a work order from the Defendant, alleging certain work done. However, the work on the plane was not completed, particularly the work to be done by Customs Planes, Inc., nor was the avionics repair or improvements done. * * XI The invoices received show a total of over Sixty Thousand Dollars ($60,000.00), but the plane was not completed as agreed. The Plaintiff has been receiving monthly statements, the work stopped and the plane is sitting at Defendant's place of business. Defendant states that it has completed the annual and are (sic) ready to sign off the annual inspection and will fly the plan to Customs Planes, Inc., as previously agreed, but has not done so. *

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However, Defendant demands payment to them in the amount of Sixty-Six Thousand Two Hundred Nineteen Dollars ($66,219.10) before taking the plane to Customs Planes, Inc. Defendant acknowledges that the annual has been completed, but no improvements on the avionics have been made and the exterior painting and new interior have not been done. XII Since the biggest part of the extra work has not been done but the annual has been completed that render (sic) the plane airworthy, Plaintiff has offered to pay Defendant the balance that he owes Defendant for the annual inspection upon Defendant delivering the plane to Customs Planes, Inc., as agreed. The agreed annual inspection and maintenance was for Fifteen Thousand Dollars ($15,000.00), although, at first Defendant gave Plaintiff an estimate of Three thousand Five Hundred dollars ($3,500.00) to do the annual. Therefore, Plaintiff having paid Defendant Five Thousand Dollars on the annual by check #5347 dated January 27, 1998; having an overpayment of One Thousand Four Hundred Dollars ($1,400.00) due him, for a total of Six Thousand Four Hundred Dollars ($6,400.00) paid toward the agreed upon Fifteen Thousand Dollars ($15,000.00) for the annual; this leaves a balance of Eight Thousand Six Hundred ($8,600.00) the Plaintiff owes Defendant for the annual inspection to comply with the FAA annual requirement. Defendant refuses to comply, thus this action for recovery of his plane. * * XIV Defendant has completed all work necessary for the issuance of an FAA Certificate to certify that the annual inspection has been completed. This was to be done for Fifteen Thousand Dollars ($15,000.00). The Plaintiff is due a credit of Six Thousand Four Hundred Dollars ($6,400.00), thus the Plaintiff owes the Defendant Eight Thousand Six Hundred Dollars ($8,600.00) on the contract. *

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Giving Defendant credit of $8,600.00 against the 51,153.00 damages that Defendant owes Plaintiff, your Plaintiff is entitled to Forty-Two Thousand Two Hundred Fifty-Three Dollars ($42,253.00). XV As the Plaintiff has paid for the aircraft, he is entitled to immediate possession and request that this Court give the possession of his aircraft, requiring the Defendant so sign off on the annual inspection and the only issue to be determined by this Court is damages. On July 15, 1999, Outlaw and Mr. Cole filed an answer and counterclaim. The answer denies the material allegations of the complaint and also includes an affirmative defense which states in pertinent part: 2. The document signed on November 22, 1997 ["Purchase Order"], and attached as Exhibit A to Plaintiff's Complaint is not a contract. All parties to this document were aware that it was merely a document executed at the bank's request to complete the bank's file. It was not intended by either party to be a binding contract for the needed maintenance on the plane at issue. 3. There was no meeting of the minds regarding the document signed on November 22, 1997, and attached as Exhibit A to Plaintiff's Complaint. 4. Alternatively, both parties were mutually mistaken regarding the meaning of the document attached as Exhibit A to Plaintiff's Complaint. 7. Plaintiff's sole and exclusive remedy for any breach is rescission of the Purchase Agreement and return of any sums paid. The defendants' counterclaim avers that plaintiff breached the contract by failing to pay for the cost of the repairs made to the aircraft and seeks $67,022.76 in damages plus pre-judgment interest and attorney's fees. On August 25, 1999, plaintiff filed an answer to the defendant's counterclaim denying the material allegations thereof and praying that the counter-claim be dismissed. In March, 2000, CPI filed for bankruptcy and at this time, the aircraft had not been delivered for paint and interior work by Outlaw.

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On July 11, 2000, plaintiff, with leave of court, filed an amended complaint, which provides in pertinent part: II Section XIV of the Original Complaint is stricken and amended as follows: Besides the Seventy-Two Thousand Five Hundred Dollars ($72,500.00) that Plaintiff paid the Defendant for the plane, Plaintiff has spent an additional Eighteen Thousand Four Hundred Dollars ($18,400.00) towards the Fifty Thousand Dollars ($50,000.00) that was included for the additional work to annual the plane and other improvements. III Section XV of the Original Complaint is hereby stricken and the following is inserted as amended: The Plaintiff request (sic) the Court to declare the purchase agreement in default by the seller as the terms and conditions of the contract have not been complied with by the seller within over a two(2) year period. * * V Wherefore, Plaintiff ask (sic) the Court for a judgment against the Defendant for Ninety Thousand Nine Hundred Dollars ($90,900.00) plus interest on the money that Plaintiff has paid out because of the default of the purchase agreement by the Defendant. Said itemization is a follows (sic): Cessna 421 Cost Overpayment Paid on Annual Paid on painting & interior TOTAL vi -10$72,500.00 1,400.00 5,000.00 12,000.00 ------------$90,900.00 *

Now, for an amendment on the Counter-claim, Plaintiff states as follows: Since Plaintiff has asked for the recision (sic) of the purchase agreement of the plane (C-421) Defendant is receiving the plane back. Whatever additional work the Defendant may have done to said aircraft has enhanced its value and therefore Defendant will not suffer any loss. The recision (sic) by Plaintiff resulted in Defendants' negligence for failing to fulfill said purchase agreement within a reasonable time frame. Wherefore, said counter-claim should be dismissed. On July 19, 2000, defendants filed an answer to the amended complaint incorporating the original counterclaim. The answer also includes a motion to dismiss on behalf of Mr. Cole. The defendants' answer denies the material allegations set forth in the amended complaint and includes an affirmative defense which provides in pertinent part: 5. The document signed on November 22, 1997, and attached as Exhibit A to Plaintiff's original Complaint is not a contract. All parties to this document were aware that it was merely a document executed at the bank's request to complete the bank's file. It was not intended by either party to be a binding contract for the needed maintenance on the plane at issue. 6. There was no meeting of the minds regarding the document signed on November 22, 1997, and attached as Exhibit A to Plaintiff's Complaint. 7. Alternatively, both parties are mutually mistaken regarding the meaning of document attached as Exhibit A to Plaintiff's Complaint. A nonjury trial was held on February 1 and 2, 2001. On July 12, 2001, the trial court filed its "Memorandum Opinion" which provides in pertinent part: The plaintiff seeks rescission of a proposed contract to buy an airplane from the defendants. The defendants allege that they performed work on the aircraft valued at more than $86,000. The plaintiff denies that he, in any way, contracted to make these repairs to the aircraft and further alleges that the defendant committed to do the work for only $50,000. -11-

The plaintiff visited Clarksville, TN., on November 11, 1997, for the purpose of inspecting the airplane. While there, the plaintiff signed a Purchase Order for the airplane setting a sales price of $72,500. In this Purchase Order, there was language concerning repairs, but the amounts were to be determined in the future. On November 19, 1997, the defendants notified the plaintiff that the additional expenses would be $50,000. The plaintiff called the defendants and talked with Mr. Cole. The plaintiff stated that they had not agreed on this figure and that it seemed high to him. The plaintiff alleges that Mr. Cole said that he (Cole) needed some room because repair costs were uncertain. The plaintiff then agreed to buy the aircraft for a total of $122,500, representing the original purchase order and the repairs. From that point forward there was not a lot of communication between the parties. The main item of contention was the cost of the annual inspection and repair as required by the FFA (sic). The plaintiff believes that the $50,000 expense figure he agreed to covered the costs of the annual. The defendants say that the $50,000 did not cover the costs of the annual and that they did not quote any figure to the plaintiff concerning the cost of the annual. The defendants presented testimony that it is not customary in the aircraft industry for there ever to be a quote given on the costs of an annual inspection and repair; the reason being, no one can tell what problem may exist with the engine or what the costs of repair will be until the engine is disassembled. There is no doubt that the defendants made many repairs at great expense to this airplane, however, the evidence establishes by a preponderance that after the parties discussed and agreed upon repair expenses of $50,000, there was little contact between the parties. The plaintiff did not execute or give his permission or approval for the work done on the airplane. The parties had two separate ideas of what they had agreed to do. They had reached an agreement concerning the basis sales price of $72,500 and $50,000 in repairs. However, the plaintiff did not contract for or agree to the repairs made by the defendant. Considering all of the circumstances, there was not a meeting of the minds so as to constitute a contract. The plaintiff has carried the burden of proof and the entire contract is set aside.

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On August 13, 2001, the defendants filed a motion to alter or amend the judgment. On August 27, 2001, the trial court filed an order which provides: This matter came on to be heard before the Honorable James E. Walton, upon the Complaint filed by the plaintiff and the Countercomplaint of the defendants. IT IS ORDERED, ADJUDGED and DECREED by the Court as follows: 1. That the plaintiff has carried the burden of proof and the entire contract is set aside. 2. That the counter-complaint filed by the defendants is dismissed. 3. That the normal costs of this cause are to be divided equally. 4. That each party will bear their own discretionary costs. The trial court's August 27, 2001 order was made final by order entered on September 20, 2001, dismissing any and all pending motions in this case. The plaintiff, Klosterman Development Corporation, appeals and raises the following two (2) issues for review as stated in its brief: 1. The Honorable Trial Judge failed to find the total sum of money that the Appellant has paid under the contract. 2. The judge's final order failed to give Appellant a judgment of all sums paid by the Appellant under the contract that should be refunded to the Appellant, and, for post judgment interest and the beginning of it. The defendants, Outlaw Aircraft Sales, Inc. and David Cole, have also filed a notice of appeal presenting the following four (4) issues for review as stated in their brief: 1. Whether the Chancery Court erred in awarding the Plaintiff/Appellant the extraordinary remedy of rescission.

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2. Whether the Chancery Court erred in failing to grant Defendant Cole's Motion for Partial Summary Judgment and his Motion For A Directed Verdict at the close of Plaintiff's proof. 3. Whether the facts as stated by the Chancery Court are contrary to the preponderance of the evidence presented at trial, including: a) Whether the Chancery Court erred when it found that the document labeled Trial Exhibit No. 7, titled "Purchase Order" and dated November 22, 1997, was an agreement between the parties rather than a document prepared at the request of the Bank that financed the Plaintiff/Appellant's loan so that the Bank could justify loaning Plaintiff additional sums above and beyond the purchase price of the airplane. b) Whether the Chancery Court erred in finding that the repairs and maintenance that Defendants performed on the airplane were not authorized by the Plaintiff. c) Whether the Chancery Court erred in failing to grant Defendant/Appellee Outlaw Aircraft judgment in the amount of $88,272.82 for the repairs and maintenance Defendant Outlaw Aircraft has performed on the airplane plus all attorney fees incurred in collecting the amounts owed. 4. Whether Plaintiff's assertion in Appellant's Brief that he is entitled to reimbursement from Defendants for sums paid by Plaintiff to third parties is erroneous. Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). We first address the defendants' issues 1 and 3(a). The appellees, Outlaw and Mr. Cole, argue that the appellant, Klosterman Development Corporation, is not entitled to the remedy of rescission. We disagree. Although rescission is not favored in Tennessee, the law provides that rescission is available when there is a mutual mistake. In Robinson v. Brooks, 577 S.W.2d 207 (Tenn. Ct. App. 1978), this Court stated:

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Where parties have apparently entered into a contract evidenced by a writing, but owing to a mistake of their minds did not meet as to all the essential elements of the transaction, so that no real contract was made by them, then a court of equity will interpose to rescind and cancel the apparent contract as written, and to restore the parties to their former positions, the rule being the same whether the instrument relates to an executory agreement or to one which has been executed. Furthermore, equity will grant relief on the ground of mistake, not only when the mistake is expressly proved, but also when it is implied from the nature of the transaction. It is not essential that either party should have been guilty of fraud. Id. at 208 (quoting 12 C.J.S. Cancellation of Instruments

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