Ocala Foundary & Machine Works v. Lester, 49 Fla. 347

Ocala Foundary & Machine Works v. Lester

49 Fla. 347 | Fla. | 1905

Shackleford, J.,

(after stating the facts.)

An appeal in chancery opens the whole case for the consideration of the appellate court, and a cross-appeal is not essential to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights. Parken v. Salford, 48 Fla. ..., 37 South. Rep. 567, and authorities there cited.

In the instant case both the appellant and the appellees are urging a reversal of the decree, though upon entirely different grounds and for dissimilar reasons.

It is contended on behalf of the appellees that the chancellor erred in denying their motion, in overruling their demurrer, in granting the petition for a rehearing *365and in rendering any decree whatever in favor of the appellant. It is forcibly urged that by retaining the possession of the machinery under its claim of a lien thereon for a longer period than three months after the lien had attached, the appellant had elected to pursue the first remedy given by section 1744 of the Revised Statutes of 1892, as amended by Chapter 4582 of the acts of 1897, and, therefore, was bound by its election and precluded from filing a bill in equity, the second remedy given by said statute. Campbell v. Kauffman Milling Co., 42 Fla. 328, 29 South. Rep. 435, is relied upon to support this contention. We are of the opinion that this contention is untenable and that the cited case does not apply. It is undoubtedly true that, at common law, independent of statute, an artisan had a lien upon chattels for the price of work done on them and was entitled to retain the exclusive possession thereof until such price had been paid. See Wright v. Terry, 23 Fla. 160, 2 South. Rep. 6; M’Intyre v. Carver, 2 W. & S.. (Pa.) 392; Boisot on Mechanic’s Liens, section 759, and authorities there cited. It is also true that at common law a lien on a chattel for work and materials gave no right to sell the chattel to enforce the lien, and that there was no adequate methoIT of foreclosing the lien. Boisot on Mechanics’ Liens, section 784; 20 Am. & Eng. Ency. Law (2nd ed.) 527; Phillips on Mechanics’ Lien (3rd ed.), section 1. The effect, then, of section 1744 of the Revised Statutes of 1892, as amended by Chap. 4582 of the acts of 1897, was, first, declaratory of the common law right of the artisan to hold possession of the chattel, second, to restrict the right to hold such possession to a period of three months after the lien had attached, and, third, to provide certain remedies for the enforcement of such liens. However, for a fuller discussion of this point see Ocala Foundry and Machine Works *366v. Lester et al., an action of replevin between the same parties who are appellant and appellees here, decided at the present term.

The second part of Sec. 1745 of the Rev. Stats. of 1892, gives to the mechanic or artisan who has acquired a lien upon a chattel the right to sell the same at public auction, as therein provided, without any judicial proceedings, but it is optional, with the mechanic or artisan to pursue this course, or to elect one of the other remedies provided by statute. As alleged in the bill, the appellant completed the work and labor upon the machinery on the 15th day of September, 1902, and filed its bill of complaint for the enforcement of its lien on the 2nd day of October, 1902, long before the period of three months specified in said sections 1744 and 1745 had expired, thereby clearly evincing that appellant had elected to pursue its remedy in equity, as given not only by said section 1744 but by section 1510 of the Revised Statutes of 1892 as well. That appellant had the right to make this election and to proceed in equity see Hathorne v. Panama Park Co., 44 Fla. 194, 32 South. Rep. 812; Futch v. Adams, 47 Fla. ..., 36 South. Rep. 575. It follows that no error was committed by the chancellor either in denying the motion or in overruling the demurrer.

Before taking up for discussion the other contentions made by the respective parties, it seems advisable to consider just what issues were presented by the plea which was filed to the entire bill and the answer purporting expressly to be filed in support thereof, and the replications filed to the plea and answer. It will be readily observed that the answer not only contains maTfer in support of the plea, but in addition thereto contains more than is applicable in support thereof, embracing in fact, other and distinct defenses to the whole bill. The rule seems *367to be well settled that when an answer contains more than is strictly applicable to the support of the plea, it will have the effect of overruling the plea. Stearns v. Page, 1 Story 204, Fed. Cas. No. 13,339; Ferguson v. O’Hara, Pet. C. C. 493, Fed. Cas. No. 4,740; Bell v. Woodward, 42 N. H. 181, text 194, and authorities there cited; Dakin v. Union Pac. Ry. Co., 5 Fed. Rep. 665; Grant v. Phoenix Life Ins. Co., 121 U. S. 105, 7 Sup. Ct. Rep. 841; 16 Ency. of Pl. & Pr., 609, 615, and authorities cited in note 3 on 609; Pigue v. Young, 85 Tenn. 263; Cheatham v. Pearce, 89 Tenn. 668, 15 S. W. Rep. 1080; Harrison v. Farrington, 38 N. J. Eq. 358; Fletcher’s Eq. Pl. & Pr., section 247; Story’s Eq. Pl. (10th ed.), sections 688 and 693; 1 Dan. Ch. Pl. & Pr., (6th Amer. ed.) 617; 1 Breach Mod. Eq. Pr., section 299; 1 Foster’s Fed. Pr. (3rd. ed.), section 137; 1 Barbour’s Ch. Pr. * page 116; Huntington v. Laidley, 79 Fed. Rep. 865; Bangs v. Strong, 10 Paige 11; Beames’ Pleas in Eq. 38 et seq. Also see Langdell’s Eq. Pl. (2nd ed.)’ Chap. IV, part 2, for the most satisfactory discussion of pleas in equity that we have been able to find. While, however, this is the settled rule, as we have seen from an examination of the authorities cited, yet it seems to have been applied only where some ruling of the court has been invoked thereon. What applicability has it when no decision of the court is sought and the plea and answer in support thereof, though the answer contains additional and extraneous matter, are treated as interposing valid defenses, not incompatible with each othei;, by both the complainant and the defendants, general replications being filed to each, as was done in the instant case? Here we have a paucity of authority. The most nearly in point case which we have been able to find is Seifred v. People’s Bank. 2 Tenn. Ch. 17, which was affirmed on appeal in 1 Baxter, 200, and even that case *368is not analogous to the instant case, for the reason that no proof was taken therein. This is the only case cited in 16 Ency. of Pl. & Pr. 610, to support the text to the effect that the rule we have just been considering “applies only' to cases wherein the plea is set down for argument and not to a case where the plaintiff takes issue upon the plea and answer and thereby treats thenr as valid defenses and compatible with each other.” We are of the opinion that the reasoning of Chancellor COOPER is sound, and that it is still more cogent as applied to the instant case, wherein testimony was taken by both the appellant and the appellees upon the issues as made by the plea and answer and the replications filed thereto. In any event, as the parties litigant and the chancellor so treated the matter in the court, below, we shall follow their example and so treat it here. The cases of Hart v. Sanderson, 16 Fla. 264, same, 18 Fla. 103, text 110, and of Crump v. Perkins, 18 Fla. 353, have but little applicability to the instant case, as an examination thereof will show. In the case of Hart v. Sanderson, in 16th Fla. a plea to the bill and also an answer in support thereof were filed, a replication was filed but withdrawn, the plea had been set down for argument and overruled, and the case then set down for hearing upon bill and answer. It is distinctly stated in the opinion that “the answer here was strictly and wholly' in support of the plea” therefore, it was properly held that the answer could not be regarded as a defense independent of the plea. On the second appeal in the same case- in 18th Fla. the opinion rendered upon the first appeal was cited, approved and followed. In the case of Crump v. Perkins, supra, thisrruling was again approved and followed and it was held that “a plea and answer in support thereof is one pleading,” but -again it was stated in the opinion rendered therein that the answer filed was in sup*369port of the plea, it nowhere appearing that the answer contained any additional matter, hence, the distinction between all three of these cases and the instant case is obvious.

Having determined that the plea in the case now before us for consideration was not overruled by the answer, for the reasons which we have stated, before proceeding to consider the evidence.and the decrees it becomes necessary to determine upon whom, the burden of proof ¿rested. The general rule is that when a replication has been filed to a plea, it is incumbent upon the defendant to prove the facts which the plea suggests. 1 Dan. Ch. Pl. & Pr. (6th Amer. ed.) 698; Dows v. McMichael, 6 Paige 139; Farley v. Kittson, 120 U. S. 303, 7 Sup. Ct. Rep. 534; Story’s Eq. Pl. (10th ed.) section 697; Fletcher’s Pl. & Pr. section 279; 1 Foster’s Fed. Pr. (3rd ed.) section 142; Stead’s Exrs. v. Course, 4 Cranch 403; United States v. California & O. Land Co., 148 U. S. 31, 13 Sup. Ct. Rep. 458; Beames’ Pleas in Eq. 325. See especially Langdell’s Eq. PI. (2nd ed.) sections 101 and 108, making a distinction in applying this rule between pure or affirmative pleas and negative pleas. However, the plea filed in the instant case could not be held to be a negative plea, and, therefore, we are of the opinion that it was incumbent upon the appellees to prove the matters contained in their plea. As to the matters contained in the answer which were not in support of the plea, but which were responsive to the bill, the burden was upon the appellant to prove the allegations in its bill. As the answer was under oath, the oath thereto not having been waived, it further follows that the sworn answer was evidence in favor of the appellees as to those matters contained therein which were directly and positively responsive to .the material allegations of *370the bill, and that as to those matters such an answer was conclusive, unless its probative force and effect was overcome by the testimony of two witnesses, or the testimony of one witness corroborated by other circumstances which were of greater probative weight than the answer. Pinney v. Piney, 46 Fla. 559, 35 South. Rep. 95, and authorities cited therein. It follows, then, that in part the burden of proof rested upon the appellant, and in part upon the appellees. 1 Foster’s Fed. Pr. (3rd ed.), section 137.

Referring to the plea interposed to the whole bill by the appellees, it will be seen that it admitted an indebtedness from appellees to apellant -of the sum of $285.00 for ali the material furnished and for all the labor and services done and bestowed by appellant in the repairing of the said machinery, that said, sum was the contract price agreed upon between appellant and appellees for the furnishing ■ of said material and the performance of the labor in overhauling, repairing and putting in the best condition the locomotive or dummy engine, including the boiler thereto belonging and a part thereof; that on or about the first day of October, 1902, prior to- the institution of the suit, appellees tendered and offered to pay to appellant said sum of money, and at the time of said tender demanded that appellant should surrender the possession of said machinery, which tender and demand were refused by appellant; that in the' month of February, 1903, appellees made a like demand upon appellant, which was again refused, and that by reason of said matters and of appellant’s retaining possession of the machinery for the period of three months and over the lien of appellant thereon had become extinguished and discharged, and appellant could not lawfully institute or maintain its suit in equity for the enforcement of its lien.

*371We have already seen that, in the light of the authorities cited, the mere retention of the possession of the machinery by appellant did not and could not have the effect of extinguishing or discharging any lien which appellant might have had thereon, or of precluding appellant from filing a bill in equity for its enforcement, hence further discussion of this point is unnecessary. A careful examination of all the evidence, which we do not deem it advisable to set out im detail, convinces us that the appellees failed to prove the matters contained in their plea. We are of the opinion that the evidence establishes the making of two contracts, as alleged in the bill, therefore, the chancellor correctly found against appellees upon their plea.

The remaining portions of the answer are to the effect that appellant had not done and performed the work or any part thereof, as alleged, had no performed or complied with its contract, as alleged, but had failed to put the dummy engine in the best running order, and had failed to complete the work within a reasonable time. The answer further averred that after the 15th day of September, 1902, appellees had requested and 'demanded of appellant that they be allowed to inspect, examine and test the dummy engine and the work and materials alleged to have been done thereon, which request and demand appellant had refused, and that' by reason of' appellant’s retaining possession of the machinery appellees had been compelled to pay the sum' of $150.00 per month for the, hire of an engine in place of the one'held by appellant^ from the 15th day of July,' 1902, üp to the time of the filing of the answer, during which period appellant had *372had the use and benefit of the engine so retained by it, the reasonable use and proper value of which was the sum of $150.00 per month. ,

Before entering into a discussion of the evidence we call attention to two facts, first, that the answer was not filed until the 14th day of July, 1903, some six weeks after the ■filing of the plea, and, second, that no exceptions were filed to the answer, but appellant filed a general replication thereto.

From the long delay in filing the answer, as well as from the statements contained in the plea and the evidence to which we shall refer, we are impressed with the idea that it must have been an after-thought on the part of appellees to claim as part of their defense that appellant had failed to put the engine in the best running order and had also failed to complete the work within a reasonable time. No such claims are made in the plea, bufan indebtedness of $285.00 is admitted therein and that appellees had tendered the same on two different occasions to appellant and demanded the possession of the engine.

Turning to the evidence, we find that Elmer E. Cline, one of the witnesses introduced on behalf of appellant testified positively that the work on the engine and boiler was done in a first class manner and the engine put in running condition agreed upon in the letter written by witness to appellees on the 30th day of May, 1902, the same having been repaired thoroughly and tested. The witness, at the time this work was done, was the general manager of appellant, though he had no connection therewith at the time he gave in his testimony. He further testified that all of the work was completed on the 15th day of September, 1902, when witness called" up appellees *373over the telephone, notifying them of the fact of completion and that appellant expected to- test it; that appellant did test it by steaming it up and running it on the side track, and after so testing it left the boiler filled with water and wood on the tender ready to fire up at any time appellees requested; that several persons were present when the test was made and that no leaks were found in the boiler.

P. R. Lester, one of the appellees, testified that he saw the engine fired up, under steam, about the 15th day of September, 1902, when he went to appellant’s place of business to get it, but that it was not run and appellant declined to let him take it out because he would not sign the notes for the amount demanded. He further testified that he became indignant when informed that he must sign a note for $580.00, and immediately made a tender to appellant of $285.00, the amount he claimed was due appellant, and demanded possession of the engine, which tender and demand were refused, were renewed in February, 1903, and again met with a refusal. He failed to testify, however, that on either occasion or at any time after the completion of the work he notified appellant of its failure to do the work in accordance with the contract or that he was dissatisfied with the manner in which it had been done, though he did testify that he found the engine “not in the best condition,” specifying that the cylinders were cracked and leaking before he left Georgia, having iron bands swung around their heads, and that they remained the same, also that there was a crack in the top of the boiler and a patch, on it, the crack having extended beyond the patch, to which he had called appellant’s attention before the work was done, that these things had not been remedied and that the boiler still *374leaked when steamed. However, he testified that he had seen it under steam but once, which was the day he made the first tender. The witness further testified that two steam brakes were off the engine, leaving only two thereon instead of four, and that the two brakes were off when he went to get the engine, which was about the 15th day of September, 1902.

The only other witness introduced who testified as to defects in the work done by appellant was J. F. Stewart, who testified that he had seen the engine but once, which was the time he came in with Mr. P. R. Lester to get it, that he examined it and thought it- was in bad condition, two cylinders on the engine being cracked and two steam brakes gone, but that he did not know whether the cracks leaked steam or not.

Taking all this testimony in connection with the pleadings, we are of the opinion that appellant sustained the burden cast upon it of proving the allegations in its bill, that the probative force of the sworn answer was overcome and that appellant was entitled to the relief prayed. See Spencer’s Appeal, 80 Pa. St. 317; Jacks v. Nichols, 5 N. Y. 178. Hence it follows that the first decree rendered by the chancellor was erroneous, that no error was committed in granting the petition for a rehearing, and that the last decree rendered by the chancellor was erroneous in not finding that appellant was entitled to a lien for the sum of $580.00, the amount claimed in the bill.

As to the affirmative relief sought by appellees in their answer as to damages that they had suffered by reason of the dilntoriness of. appellant in completing the work, it is too well settled by decisions .of this court that affirmative relief can not be granted upon the prayer in an answer, no cross-bill being filed, to require any discussion. Wooten *375v. Bellinger, 17 Fla. 289; Sanford v. Cloud, 17 Fla. 557; Lindsay v. Mathews, 17 Fla. 575; Mattair v. Card, 18 Fla. 761; McKeown v. Coogler, 18 Fla. 866.

We have considered all the evidence in the record.

Many objections were made by both appellant and appellees to different portions of the evidence, but we can not consider the game for the reason that the record fails to show that any of the objections were presented to the chancellor and expressly ruled upon by him in the court below at or before the final hearing of the cause. Skinner v. Campbell, 44 Fla. 723, 33 South. Rep. 526; Stockton v. National Bank of Jacksonville, 45 Fla. 590, 34 South. Rep. 897; Pinney v. Pinney, supra.

It follows from what has been said that the decree must be reversed, with directions to enter a decree in accordance with this opinion, and it is, so prdered; the appellees to pay the costs of this appeal.

Whitfield, C. J., and Carter, J., concur. Taylor, P. J., and Hocker and Cockrell, JJ., concur in the opinion.