31 Fla. 369 | Fla. | 1893
Lead Opinion
M. E. and W. B. Thompson, composing the firm of Thompson and Co., instituted proceedings by affidavit on the 7th day of March, A. D. 1888, in the Circuit Court for Polk county against “Jacob Summerlin, Gf. A. Hanson and D. Hughes, as the Board of Trustees of Summerlin Institute, of Bartow, Florida, to enforce a lien on the institute building for a balance of $5,267-.47, alleged to be due for the erection of the same.
The affidavit states tliatj'/i'hompson & Co. are mechanics, contractors, builders and material men, and that there is due said firm for work done and material furnished during the latter part of the year 1887, and the months of January, February and March, 1888, by Jacob Summerlin, Gf. A. Hanson and D. Hughes, as
A bond was filed by Thompson & Co., and a writ of attachment and summons were issued returnable in
Issue was joined on these pleas, and during a term of the Circuit Court held in June, 1888, the case was tried and resulted in a verdict and judgment in favor of plaintiffs for $3,150, Avith interest from the first of March then past, $350 attorneys’ fees, and costs of suit. .From this judgment the trustees have appealed.
The decision of the court in overruling the demurrer to the affidavit is assigned here for error. The affidavit alleges that the sum sued for is the balance due-on a contract for work done and material furnished the latter part of the year 1887, and the months of' January, February and March, 1888, in the erection of the building mentioned, and was completed and ended, the third day of March, 1888. The time when the contract was entered into is not stated, but the allega
The objection that the affidavit does not allege that the terms of the contract have been complied with on the part of the plaintiffs, can not avail in view of the •showing that it is in compliance wfith what the statute requires in such proceedings. In addition, the allegation that the balance is due on the contract for
The eighth section of the act under consideration provides that a contractor or sub-contractor of the buildings mentioned therein, when required in writing to do so, shall furnish the person having the work done a correct list of all persons who, as sub-contractors or material men, are furnishing materials therefor, and a refusal to furnish such list may be pleaded in bar of the lien claimed for the work done, unless it can be shown that all claims for materials so furnished have been paid for. This does not impose upon a plaintiff the necessity for stating in his affidavit that a demand has been made for the list and the same furnished, or that no demand has been made, as the case may be. These are not facts entitling a party to a lien, and whatever defenses a defendant may have under this section by reason of a refusal to furnish the list, may be set up by plea.
hione of the grounds alleged in the demurrer to the affidavit are good, in our judgment, and the court did not err in overruling it.
After the verdict wás rendered against appellants, they made a motion to arrest the judgment and for a new trial, because, 1st, the verdict is contrary to law and the evidence, and is excessive; 2nd, because the verdict is contrary to the charge of the court; 3rd, because the proof showed that the written contract on
Many assignments of error are made here that will not be considered for the reason that the questions sought to be presented by them were not raised in the court below. At least five assignments of error are predicated upon the giving or refusing to give certain charges by the court, and there is, as appears from the record, but one exception taken to the rulings of the court in this respect, and that is to the refusal to give the following charge asked by the defendants, mz: ‘ ‘The act under which suit is brought was approved June 3d, 1887, and if the contract wms entered into anterior to that date, then the plaintiffs can not recover in this case in this form of action.” This assignment of error will be considered in connection with the third ground of the motion for a new trial. The evidence shows that appellees entered into a written contract on the 13th day of March, A. D. 1887, with the appellants, as trustees of Summerlin Institute, of Bartow, Florida, and thereby agreed to furnish all labor and material, and erect a two-story brick building on a lot of land situated in said town, according to certain plans and specifications, and on the terms mentioned in the contract. The price for the completion of the building was $17,227, and designated portions of this.
The testimony also shows that the amounts due on the contract for work and material furnished prior to the going into effect of the act of June 3d, 1887, was paid for, and that the amounts claimed by plaintiffs, and for which judgment was rendered, was for work done and material furnished in erecting said building .subsequent to the time when said act went into effect.
Counsel for appellants contends that the remedy here is not under the act of 1887, but must be under the act in force when the contract was entered into. ’This case, it will be observed, is not like the one of McCarthy vs. Havis & Perry, 23 Fla., 508, 2 South. Rep., 819, where it was held that the act of 1885 was prospective only, and did not give a right to proceed under it to enforce a lien for work done and labor performed in the erection of a building prior to its passage. In view of the terms of the act of 1887, making its operation probably entirely prospective, if the money sued for iii the present case was due for work done and material furnished before it went into effect, the position of counsel for appellants would be correct. But the effect of the evidence in the record is as above stated, that the work done in the erection of the house by plaintiffs, for which they sue, was subsequent to the time when the act, of 1887 took effect. This act declares that the liens provided by it shall be created at the time any labor is done or
We have carefully examined the evidence, to which no exception was reserved during the trial, and can not say that it does not sustain the verdict as to the balance due plaintiffs for the erection of the building. The contract called for brick window heads, but the trustees, on represensations to them by the plaintiffs that the brick work could not be done according to the-plans, verbally consented to have galvanized iron heads substituted. There is testimony tending to show that these representations were not true. The galvanized heads were not put in, and there is some conflict in the evidence as to whether or not they were to be put in at the cost of appellees, but it is apparent that the jury made allowance in favor of the appellants for the failure in this respect. The testimony of plaintiffs tended to show that in other respects they had substantially complied with the terms of the contract as. to the erection of the building, and there was no such
One of the assignments of error here is that ‘£ the testimony sustained the plea of defendants, wherein they set forth that the terms of the contract stipulated for a fixed method by which all differences as to the work, labor, materials and payments should be adjusted by reference to one Charles L. Yorke, and until that method had been fairly tried, the plaintiffs below had no right of action in any form, and it was error for the court to confine the jury to the single issue as limited by Section 19 of Chapter 3747, acts of 1887.”
The first and second pleas do not set up in abatement of plaintiffs’ action the method of adjustment of differences by a decision of the architect, but simply deny that plaintiffs have complied with the contract, or "that anything is due them thereon, or otherwise.
The third plea sets up, among other things, that by the terms of the contract under which the building was erected it was agreed that GK A. Hanson on behalf of 'the defendants should constitute the building commit
On the 6th day of March, 1888, as it appears, appellees gave written notice to Gr. A.. Hanson that they were ready to turn over to the trustees-the building constructed, and asked settlement of their claim under the terms of the contract. To this. request a reply was made on the 7th day of that month
he architoct never made any decision on the points of disagreement between the parties, nor is there anything to show that he was ever called upon by either party to render any decision. At the time the suit wras instituted the testimony shows that arbitration was talked of by the parties, but what was then said had reference, it seems, to a decision by arbitrators then to be settled, and not to an adjustment by the architect named in the contract. Jacob Summerlin testified that he left the matter to Col. Hanson and the architect, but he also states that the architect
The entire merits of the case as to the completion of the building according to the contract, and also as to the payments made to the appellees, were gone into before the jury, and no exceptions were taken by the appellants to any of the testimony on the ground that the architect alone, and not the jury, was authorized to decide the issues raised between the parties. It does appear that defendants requested the court to charge the jury “that plaintiffs can only recover by showing a compliance with the terms of the contract, and this applies to all payments and the method of adjusting the differences as to the work and material furnished.” rJ his charge, however, was refused, but no exception was taken to the ruling of the court on the motion for a new trial or otherwise.
The clause in the contract providing that upon a disagreement of the parties, the architect shall decide the issue, is valid and binding upon'both parties. The rule of law applicable to such stipulations in contracts has been passed upon by this court in the cases of Howard vs. Pensacola & A. R. Co., 24 Fla., 560, 5 South. Rep., 356 ; Hanover Fire Insurance Co. vs. Lewis, 28 Fla., 209, 10 South. Rep., 297; Wilcox vs. Stephenson, 30 Fla., 377, 11 South. Rep., 659. The difficulty we encounter is not in ascertaining the rule of law applicable to clauses in contracts like the one before us, upon proper issues raised thereon, but in the present case the trouble is to determine whether
Another assignment of error is, that “the court-erred in sustaining this form of action, because so. much of the act as confers special powers or special, jurisdiction upon the courts, or changes the general, rules of practice in favor of a class is uncontitutional.” In Emerson vs. Gainey, 26 Fla., 133, 7 South. Rep., 526, it was held that “the proceedings prescribed by the statute (act of 1887) for the enforcement of the lien law are purely legal, and confer no equity powers upon the court, and a proceeding;
A further assignment of error is, that the court erred in sustaining plaintiffs’ action, “because the pleadings and proofs show that the building erected was a public school building in which the defendants had no ownership which could be subjected to a mechanic’s lien, the same being exempt from levy and sale under ■execution as public property, (and) not subject to mechanic’s lien.” It appears from the testimony that the building erected was to be used for school purposes, but it does not appear that it was erected by virtue of any public authority under either State or municipal regulation. Where a building is erected for public school purposes by virtue of legislative authority, and the statute provides a way for its pay
A still further objection is raised here that the judgment is erroneous because it is a personal judgment against defendants, and not against them as trustees, while they are sued as trustees. Yiewing the judgment entered in the proceedings before us as an entirety, and considering that the award of execution is against the property only upon which the lien is. sought to be enforced, we do not-think it can be said to be a personal judgment against the trustees. As the judgment awards execution only against the property, its effect is to exclude-the idea of any personal judgment.
There is nothing in the record to sustain the contention that the verdict of the jury was speculative, or the-result of a compromise.
Counsel for. appellant made other assignments of error, which have not been overlooked, but as the questions which are sought to be raised by them were not mooted in the trial court, and as they are of such
The order of the court is, that the judgment appealed from be, and the same is, hereby affirmed.
Rehearing
PETITION POE EEHEAEING.
The conclusions arrived at in the main opinion are fully sustained by the record, and that opinion disposes of all questions that were properly made by counsel for appellants.
The petition for rehearing is an infraction of the rule governing rehearings, in that it is a reargument of some of the same questions formerly submitted, and also contains citations of authorities, and even some not cited before. First National Bank vs. Ashmead, 23 Fla., 390, 2 South. Rep., 665. x
A rehearing is denied.