American Motor Inns of Fla., Inc. v. Bell Elec. Co., 71--637
| Decision Date | 07 April 1972 |
| Docket Number | No. 71--637,71--637 |
| Citation | 260 So.2d 276 |
| Parties | AMERICAN MOTOR INNS OF FLORIDA, INC., Appellant, v. BELL ELECTRIC CO., a Florida corporation, Central Bank and Trust Company, a banking corporation organized under the laws of the State of Florida, as Trustee, Appellee. |
| Court | Florida District Court of Appeals |
Robert L. Parks and Robert Orseck, of Podhurst, Orseck & Parks, Miami, for appellant.
Floyd V. Hull, Jr., Fort Lauderdale, for appellee, Bell Electric Co.
WHITE, JOS. S., Associate Judge.
Plaintiff sought foreclosure in the circuit court of a mechanic's lien on certain real estate. The lien was claimed for work done and materials furnished in the repair of air conditioning equipment. The contract with the owner, defendant in the trial court, was an oral one, whereby the lienor was engaged to 'put the west unit in operating condition.' Payment was to be for 'time and material on a cost plus basis.' The lienor claimed a balance due of $10,537.08, plus interest, costs and attorneys' fees.
After trial, during which numerous witnesses testified and many exhibits were examined, the trial judge entered final judgment for the lienor, allowing a lien for $8,500.00, plus $1,000.00 interest, $2,500.00 attorneys' fees, and $195.50 costs, totaling $12,195.50.
The owner has appealed and contends, first, that a lien should not have been allowed because there was not a 'substantial performance' of the contract by the lienor.
As is frequently the case in such controversies, the record is voluminous and the testimony conflicting regarding the character of the work, the prices charged, and the performance of the contract in general, all contributing to the difficulty in solving the problems incident to a complex case.
As we understand the record, the lienor and the owner fell into disagreement at a time when the lienor requested further payment for work done. The lienor's claim then had reached the sum of $15,500.00, on account of which $4,000.00 had been paid in two installments. The equipment in question continued to give trouble and did not operate to the owner's satisfaction. The owner disputed the claim, refused to make further payment and referred the lienor to the owner's attorney. The owner then engaged another mechanic to correct the trouble for which the latter was paid the approximate sum of $2,400.00. The parties agreed before the trial court that the lienor's claim be reduced by the sum of $1,217.12 on account of removal of a defective crankshaft and the installation of a new one.
It is well settled that a lien may be allowed only when there has been a substantial performance of the contract on the lienor's part. However, there is authority for the proposition that 'substantial performance' is met by a lienor if the omission is not so serious that it cannot be remedied by payment from the contract price. See Mathis v. Thunderbird, etc., 236 Or. 425, 389 P.2d 343 (1964).
This seems a fair and logical rule to apply...
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