34 Fla. 77 | Fla. | 1894
A bill in chancery was filed by appellant against appellees, and it alleges, in substance, that in September, 1886, Nutt entered into a contract with E. W. Coding-ton, agent for his wife, Anna Y. Codington, through A. E. Pooser, contractor, to furnish material and do the work necessary in plastering a certain dwelling-house situated on Moral avenue, in the town of Bar-tow. It is alleged that the house and lot on which it rs located belonged to Mrs. Codington; that the contract for said plastering was fully complied with and completed in the month of January, 1887, and that there was then due the complainant Nutt, for the material furnished and work done in plastering said house, the sum of one hundred and ninety-eight dollars and ninety-four cents, a copy of the account being filed with the bill, and consisting in a statement that Anna Y. and E. W. Codington were indebted to James EL Nutt for lime and laths furnished and work done in plastering house throughout, $198.94. It is also alleged that complainant had filed a lien against the building in the office of the Clerk of the Circuit Court for Polk county, a copy of which is also filed with the bill. The prayer
The answer alleges that E. W. Codington entered into a contract with A. E. Pooser for the erection of a •dwelling-house on Floral avenue, but it is denied that said contract was made by E. W. Codington, as the agent of his wife, or that he acted in any way as her agent. It is admitted that the real estate sought to be charged with a lien was the property of Mrs. Coding-ton, but alleged that in making said contract, E. W. Codington acted for and on behalf of himself ■only, and that it was not the understanding of ■either of the respondents, or said Pooser, that Mrs. ■Codington should in any way subject herself or separate estate to any liability concerning said contract. It is admitted that Nutt furnished materi•als and performed work in the construction of said building, but alleged that, if he made any contract for furnishing said materials and performing said work, it was made with A. E. Pooser, the contractor for the erection of said building, and that Mrs. Codington had no knowledge whatever of said contract, and that Nutt had never given to her or her husband any notice that said material had been furnished or work performed in the erection of said building, or that the contractor -was indebted to him (Nutt), and that he looked to the respondents, or either of them, for what was due ■-thereon. It. is also alleged that the contractor, Pooser, had been overpaid by E. W. Codington for the entire contract price for building said house before the filing of the lien mentioned in the bill, and before either of the respondents had any knowlege of any claim by the •complainant against Pooser; also that but a small portion of the amount sought to be recovered by com
The testimony shows that E. W. Codington made a contract in 1886 with A. E. Pooser to erect a house in Bartow, Florida, on a lot belonging to his wife, Anna Y. Codington, and that Pooser entered into a contract with appellant Nutt to furnish the material and do the plastering in said house. Nutt completed his part of the contract by the last of December, 1886, and the bill was filed on the 15th day of December, 1887, for the purpose of subjecting the house and lot to the payment of what Nutt claimed as then due him on the-plastering contract. It appears that about the time Nutt completed the plastering, an ágreemet was entered into between E. W. Codington and A. E. Pooser, the contractor, by which the building was to be finished under the direction and management of Coding-ton. It seems that he, at this time, had advanced a large portion of the contract price for building the house, and was apprehensive that there would not be-enough to complete it, and the agreement was for him in person to pay the hands for the remaining work to be done on the house. There is a conflict in the evidence whether, by this agreement, Codington was to pay the laborers only for work performed after the agreement, or for that done as well before as after, and not paid for by Pooser. Nutt’s labor was performed before the agreement was made, and the testimony tends to show that Pooser, the contractor, was paid more than the contract price for building the
If it be conceded here that the complainant had a lien on the house and lot of Mrs. Codington by virtue of the act of 1885 (Chapter 3611), for work done thereon which he could enforce in a court of equity, our conclusion is that the decree dismissing the bill must be
Not feeling authorized to disturb the conclusion reached on the evidence, our decision is, that the decree appealed from must be affirmed on the evidence, and it is so ordered.