81 Fla. 613 | Fla. | 1921
A writ of error was taken to a judgment of the Circuit Court in favor of the defendant in a cause wherein I. F. Jones, hereinafter referred to as the plaintiff, sued Pinellas County, hereinafter referred to as the county.
The case was tried upon an agreed statement of facts which in substance was as follows: In October, 1914, the county, acting by its Board of County Commissioners, entered into a written contract with the plaintiff for the construction of a county jail upon the county’s property in the town of Clearwater. The contract provided among other things that the plaintiff would supply all labor and material; that the architect’s approval of the work and his acceptance should be taken as a complete performance of the contract by the plaintiff; that the county would pay for the building the sum of $19,865.00, payable on the 15th of each month to the extent of 80% of the value of labor performed and materials furnished upon the certificate of the architect. The payments were to be made in “County Jail Building Warrants” in sums of not less than twenty, nor more than one thousand dollars, in “such form as to meet the wishes” of the plaintiff. It was agreed that the plaintiff in compliance with the contract on his part began the construction of the building upon the lot designated, that he laid and builded the foundations of the building and erected the walls to a height of eight feet and was then notified by the
The declaration of the plaintiff consisted of five paragraphs, each constituting one count, except the fifth, under which was embraced five common counts as follows : goods bargained and sold; money lent; money paid by the plaintiff for use of the defendant; money received by the defendant for use of the plaintiff, and account stated. That paragraph concluded with an allegation that the several sums of money were to be paid on request, but the defendant had • refused to pay them although requested. That the claims were filed within six months
Several months later an order was entered sustaining a demurrer to the second count of the declaration and overruling it as to all other counts. Following that order the county after several months interposed an amended second plea to the fourth count and then the pla,intiff joined issue upon the pleas to the third and fourth counts of the declaration. A trial by jury was waived and on the same day the plaintiff moved for a default because
At the time this motion was made the pleadings stood as follows: The declaration consisting of the first count' declaring on the contract; the third count for labor performed and materials furnished, and which alleged that the sum demanded was due by the county for the labor and materials which the county had accepted and had ordered to be paid; the fourth count for work done and materials furnished, and the fifth, sixth, seventh, eighth, and ninth counts embraced in the fifth paragraph. The plaintiff then withdrew the first count. So the plaintiff’s case rested upon a declaration containing merely the common counts for work done and materials furnished, goods bargained and sold, money lent by the plaintiff to defendant, money paid by plaintiff for defendant’s use; money received by the defendant for the plaintiff’s use, and account' stated. The third count was nothing more in its last analysis but a common count for work done and materials furnished combined with an account stated.
So far as the questions involved in the case are concerned, they could have been presented by one count, declaring either upon the contract or for work done, and materials furnished or an account stated and a plea averring the illegality of the contract and the lack of authority on the part of the County Commissioners to incur the obligation as a county obligation. This issue was at last reached and the case submitted to the judge without a jury upon the agreed statement of facts referred to above. The trial court found for the defendant and entered judgment for the county.
While the failure to plead or demur to a count in a declaration entitled the plaintiff as a matter of procedure to a default, yet if the failure to obtain the default did not result in a miscarriage of justice the judgment should not be set aside nor a new trial granted because of the error in pleading or procedure. See Chap. 6223, Laws of Florida, 1911. We think, however, that the amended plea was intended to apply to all the counts left in the declaration, which, as stated, consisted of the common counts. The plea begins with the statement that it is an “amended plea to the fourth count” and then avers “that the moneys mentioned for work done and materials furnished (fourth plea), for goods bargained and sold, for moneys lent, for moneys paid, for moneys received and for moneys mentioned in the fourth count of the plaintiff’s declaration are for the alleged construction and work and labor and material upon the said jail,” etc. If the fifth paragraph is a mere continuation of the fourth, which it is in reality but for the mere insertion of a number, there was no failure to plead because the amended plea was applicable. The mere mechanical division of the .language into paragraphs did not convert
As only the common counts remained in the declaration, and special contract was received in evidence merely as to the damages sustained under those count's, and as the contract provided for payment in warrants the common counts were not sustained.
But there is a deeper trouble and more fatal one. The evidence shows that the work was done and materials were furnished under a contract which was entered into by the County Commissioners with the plaintiff without any authority of law and in violation of the provisions of the statute upon the subject. The plaintiff was notified by the very terms of the written instrument that there were no funds available for the purpose, and warrants would have to be issued payable at some day in the future in payment for the labor and material. He was charged with knowledge that a building tax would have to be levied under the provisions of Section 808 of the General Statutes of Florida, 1906, and yet knew from the records of the Commissioners that the necessary resolutions had not been adopted, and that the order for the building was fatally defective. See Bell v. Coachman, 69 Fla. 295, 68 South. Rep. 173.
The contract in this case was not invalid for a mere irregularity, but for a direct evasion of an express mandatory provision. See 1 Elliott on Contracts, Sec. 606; 7 R. C. L. 947; 15 C. J. 540, 541.
„ We think that in view of the facts in the case the county was not liable upon the implied contract to pay for work done and materials furnished by the plaintiff even though the propriety of the common counts in an action against the county may be conceded. We find no error in the judgment, so it is affirmed.
Browne, C. J., and Taylor, Whitfield and West, J. J., concur.