71 So. 2d 164 | Fla. | 1954
.This.is an appeal from an order sustaining exceptions to the report of- the Special Master with reference to a claim for labor and materials which constituted the final decree. -
It appears that the -Patrician Hotel, located upon certain real estate in Dade County, was repaired and improved by the appellant at the request of S. E. Schwartz and Ruth Schwartz, his wife. Abe Kurman and Nettie Kurman, his wife, were co-owners of the property with Anne Evans Capps. The case was dismissed as to-all of them. During the proceedings a.claim for lien on the property was released when the Schwartzes filed a bond, as. principal, with the All Florida Surety Company, as surety, in lieu of the lien and an order of the Court was entered transferring the lien' to the bond. An amended 'bill -of complaint was then filed whereby the Schwartzes and the All Florida Surety Company were joined as parties-defendants.
The Master found from the evidence that the contract with the appellant, was made by Mr. and Mrs. Schwartz; that the Schwartzes were lessees of the property, had assumed the duty of making the repairs, and were in possession of the property when contract to repair was, made ; that the bond was given by Schwartz and wife as principals; that F.S. Section 84.24, F.S.A., provides .for the giving of such bond by the owner and that when Schwartz and wife gave such bond, with the approval of the Court, they represented themselves to be the owners and could not have given the bond except by claiming to be owners of the property.
It is certainly borne out by this record that Schwartz and wife held themselves out as b'eipg the-owners of the property. It was under such ■‘representation that a bond was given to release the property from the claim of lien, and they are now estopped from denying that they are owners for the purpose in question and for the enforcement of the lien against the bond which was substituted- in lieu of any interest in the property. :It is likewise clear that there was a misapplication ,of the law -to the facts in sustaining, the. exceptions to the Master’s Report.
Reversed.
