*1 947 on be affirmed appealed the order from herein should authority opinion and it is so ordered. of that

Affirmed.

Whitfield, J., Buford, P. and and J. Strum concur. J., Terrell, Brown, C. J., concur in Ellis J. J., opinion judgment. Company, corporation, Appellant, Hotel Fort Meade corporation, Appellee. Iron v. Knoxville Opinion April 29, 1930. May rehearing denied

Petition for *2 Wilson, Appellant; for Patterson <& Appellee. Willson, for Walker Commissioner: Mathews, appellee, complainant in the court 21, 1927, On December complaint against appellant the below, filed its bill of seeking foreclose as defendants to establish and others lien. materialman’s among things alleges that other complaint of

The bill by defendant hotel County are owned Polk lands in certain materials, time certain by it at the owned and was company furnished re-enforced complainant furnished; that were contractor, Company, Inc., Nix McDonald and steel to iron land;' building on said constructing a hotel to be used Nix MacDon- were delivered to materials part of said 1926, 24, part on Decem- Inc., November on ald 31, 1926, and that on December 1926, part ber transaction; continuous one furnishing same constituted of construction of a build- used said materials were the value of buildings upon said land and were of ing or paid; complain- had $1,773.14, part of which been no that, company writing duly hotel ant notified defendant Company,. Nix furnishing to McDonald said material it was building to be constructed contractors, for use in the Inc., clerk of it; 26, 1927, March it filed with the for that on lien, County, a certain notice of circuit court of Polk alleges an The bill and caused the same to be recorded. company hotel the con- from defendant indebtedness tractor. mentioned in bill and after- following exhibits

The question are material to the in evidence wards follows: are as notice, “Exhibit ‘C.’ Telegraph Company.

“Postal Cable “December “Fort Meade Terrace Hotel Co., Meade, Fla. ‘/Fort

“Have order Nix your from McDonald for steel you hotel. Will guarantee payment of account? Answer collect.

“KNOXVILLE IRON COMPANY.” *3 “WOS/C” ‘D.’

“Exhibit 8, 1926.

“December Co., “Fort Meade Terrace Hotel Meade, “Fort Fla. ‘‘ Gentlemen: today you per

“We wired confirmation enclosed,, regarding deformed steel bar order which re- we have ceived from Nix McDonald Company of Tampa, Flor- ida, your used in hotel at Fort Meade. necessary your

“It is you we have advice guarantee payment will of the account before we make- shipment material, you of the and trust will advise us immediately. very truly,

Yours “Secretary & Treasurer.” “WOS:H”

“Exhibit ‘E.’

“Fort Meade Terrace Hotel Co. Meade, Fla.

“Fort ‘‘Gentlemen: you “We wired on December 8th, advising that we furnishing were Nix McDonald, contractor, building your hotel, steel, the deformed and inasmuch as we. forwarding you this nothing heard from we are

have our will by registered mail so files show letter regarding you duly notified the account. have been any “We, course, anticipate not trouble col- do dp they contractors, in the lecting from the but event pay us, expect your company to reimburse not we will question. us for the material you “We would like to have a letter from acknowl- edging receipt of this c'ommunication. very truly,

“Yours “Secretary & Treasurer.” :H.” “WOS

“Exhibit ‘F.’

“RETURN RECEIPT postmaster registered FROM the “RECEIVED original appears number which insured article or of this card. on the face MEADE TERRACE HOTEL CO.

“FORT

“By Wetherington. Orrie M. delivery “Date of *4 12/31/26.” duly company hotel denied that it was The defendant writing by complainant it would fur- notified in the building certain materials for use the denied nish acquired upon a lien the complainant had the property. a lien in favor of the

The court below decreed to exist upon building and lands described the complainant the payment. of property and ordered the sold in default bill necessary question appeal The one to decision on this is, complainant provisions 5381, under the did of Section \Comp. 3518, Gen. Laws of Section Rev. Gen. Stats. agent cautionary 1920, deliver the or its a written to owner that it would furnish certain materials? notice

951 company re- Secretary hotel testified he of defendant supra; “D” that he did ceived communications “C” and nothing up further the answer, he received to not and as the contractor, supposed he time of settlement with the cancelled. complainant had been contractor’s order with complainant “D” will do not state Exhibits “C” indi- “D” rather materials,, certain but Exhibit furnish building- any not furnish complainant cates that would company guar- contractor, to unless the hotel material the anteed the account. “E” at- exhibit was undisputed

The evidence shows by receipted for in the name- tempted mail and to be served by M. Orrie Fort Terrace Hotel of Meade firm of Patter- Wetherington, stenographer for the law the firm was. Mr. Patterson of said law son Wilson' that the secretary Company; that said of the Fort Meade Hotel general “K” cor- letter found under file letter was Wilson, attorneys, after- respondence file Patterson and that, the contractor and had been made with settlement brought to attention not theretofore been said letter had company or de- secretary defendant hotel of the of the Fort Meade of the any officer or stockholder livered questioned that defendant Company. Hotel It is not Company” Terrace- Hotel and “Fort Meade “Fort Meade ’’ corporation. are one and the same Hotel Co. strictly statutory any A lien is and before mechanic’s may lien, statutory provisions person have such must can strictly complied with and the lien claimant before lien, allege prove must a strict com enforce such he every pliance requirement of the statute. Curtiss- with Fla. Bright Cypress Co., Ranch v. Door 91 Co. Selden R. 679. So. *5 cautionary requires notice, of' The statute that a to be agent. any effect, must delivered the owner or his Curtiss-Bright v. Cypress Ranch Co. Selden Door Co., supra; 5381, Comp. Section Gen. Laws of Fla. Sec- tion 3518, Rev. Gen. Stats. 1920. delivery

The evidence this does case not show of a cautionary notice to the or as agent required owner his by statute.

The decree is reversed. Per Curiam. having The recordthis cause been con- by Court, sidered foregoing and opinion prepared Chapter 14553, under by adopted Acts the Court opinion, as its considered, it is by ordered and decreed Court that the decree of the Court be, below should hereby the same is reversed. J., C.

Terrell, Whitfield, J., J. Buford, Ellis and concur.

Strum and Brown, J., J. dissent. (dissenting) J. :

Strum, my In judgment given the notice was sufficient to bind the owner.

Brown, J., concurs. Drainage District, Corporation a for the use and Iona of the Dixie benefit & Metal Culvert Company, Error, Corporation, v. W. L. doing Slayton, Plaintiff style under the firm name and business of W. L. Company Slayton Surety Company American York, Corporation, in Error. of New D&fendants B.

Division Opinion April 29,