Armstrong v. Blackadar

• Decision Date: 04 March 1960
• Docket Number: No. 1114,1114
• Citation: 118 So.2d 854
• Parties: Claude F. ARMSTRONG, Appellant, v. Harry D. BLACKADAR and Olive I. Blackadar, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 854

118 So.2d 854

Claude F. ARMSTRONG, Appellant, v. Harry D. BLACKADAR and Olive I. Blackadar, his wife, Appellees.

No. 1114.

District Court of Appeal of Florida, Second District.

March 4, 1960.

Rehearing Denied April 4, 1960.

Hall, Farnsworth & Rousseau, Tampa, for appellant.

Allen, Dell, Frank & Trinkle, Tampa, for appellees.

FUSSELL, CARROLL W., Associate Judge.

The appellant in this case was plaintiff below in a suit to foreclose a lien for repairs of fire damage to a garage, house and breezeway owned at the time of suit by the appellees. The appellees were the sole defendants in this suit and at the time the contract for repairs was made and during the entire period when the work was being done, appellees were the vendees in an unrecorded contract of purchase with the vendors, Gaetano Riggi and wife, owners. The contract for repairs was made between the appellant and one John Riggi, who was the son of the owners, Gaetano Riggi and wife. John Riggi was living on the premises at the time the contract of repair was made and represented himself to be the owner and promised to pay for the repair work out of fire insurance. Gaetano Riggi came on the property after the repairs were started and remained on it with his son until after the repairs were completed. Gaetano Riggi could not speak good English and made no statements to the plaintiff other than 'nice job'.

The lower court after hearing the testimony in person dismissed the complaint with prejudice. Basis for this dismissal by the lower court appears from the following statement appearing in the final decree:

'Absent the circumstances of plaintiff having been misled by the owner or of the owner being aware of the false representation of the seller, the court finds that the general rule of law applies to the effect that a lien cannot be established on the basis of the owner's ratification of the acts of the son who, in obtaining the improverments, acted solely for himself as owner and not as agent since it is necessary in order for ratification to exist that the person purport to act as agent of the owner. 57 C.J.S. [Mechanics' Liens § 59], p. 550; 124 A.L.R. 893.

'The fact that the father was persent or aware of improvements being made does not subject his interest to a lien or put him in privity with the plaintiff. Arbuthnot v. Moody Co. Fla. , 155 So. 840.'

A careful review of the record shows very little conflict in the facts. Appellees entered into a contract dated March 22, 1958, to purchase the property from the owner, Gaetano Riggi. This contract contained a clause as follows:

'All fire and smoke damage must be repaired to the full satisfaction of all parties concerned.'

Contrary to the recitals contained in the final decree, we fail to find any evidence whatsoever that the appellant knew either of the existence of this contract of sale or that John Riggi was not the owner of the property until some time after all the work had been completed. This contract of repair was made on April 8, work started on April 9 and was completed on April 20. There is evidence that Gaetano Riggi moved onto the property about April 13 and remained until after the work was completed. Appellees admit that he visited the property on April 16 and saw appellant actually making the repairs at that time. He says John Riggi was present also, but denies that Gaetano Riggi was present at that time. The evidence further shows that the property was deeded to the appellees on May 1; that they went into possession on June 5; that notice of lien was filed on June 6 and was served on appellees on June 10; that suit to foreclose was instituted on September 16; all of these dates being in the year 1958.

The only evidence as to any agency existing between John Riggi and Gaetano Riggi, his father, was given by the real estate agent who engineered the sale from Gaetano Riggi to appellees and who also recommended appellant as a capable man to do the repair work and advised him that the job was open. Mr. Roush, the real estate agent, testified as follows:

'Q. Mr. Roush, did you ever have any knowledge of Mr. J. Riggi being commonly known as agent for his father in transactions around there.

'A. Just about everything that was done around there was done * * *. Johnny was representing his father. * * *

'Q. Did John ever tell you he was acting as agent for his father?

'A. He mentioned several times that anything he ever done his father would go along with it. In fact, in the purchase of the property at the time he was instigator of the folks buying the place, and all the way down the line he was go-between man for the old folks.' (Emphasis supplied.)

It is strongly contended by appellees that the final decree dismissing the complaint with prejudice was proper and should be affirmed. Appellees maintain that since Gaetano Riggi, the owner, did not order the improvements, and since the improvements were ordered by John Riggi, who represented himself as the owner and not the agent of Gaetano Riggi, that under the provisions of Florida Statutes 84.11, F.S.A. no statutory lien could be claimed:

Florida Statutes 84.11. 'When the person contracting for improving real property has no interest as owner in the land, no lien shall attach to the land, * * *.'

It is our view that the learned chancellor committed error, for even though appellant could have no statutory lien because of the provisions of Florida Statutes 84.11, F.S.A. with which findings as applied to the facts in the instant case we do not agree, yet, under the facts of this case the appellant is clearly entitled to an equitable lien. The undisputed facts show that the owner and the appellees each knew that this property had been damaged by fire and that the owner was obligated by his contract of sale with the appellees to repair the fire damage to the satisfaction of both the owner and appellees. The owner put his son in possession of the property and, in fact, lived on the property with his son while the latter half of the repairs was being made, and commented to the appellant that it was a 'nice job'. The appellees knew the work was being done and in fact witnessed part of the work in progress just prior to its completion. Neither the owner nor appellees have ever objected to any part of the work to appellant.

The doctrine of equitable lien has been firmly established in Florida. The court said in the case of Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R. 1409:

Mr. Justice Terrell, after reviewing a number of cases said:

'From the foregoing it is seen that equitable liens arise from two sources, viz.: (1) A written contract which shows an intention to charge some particular property with a debt or obligation; (2) is declared by a court of equity out of general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case.'

'(2) In Society of Shakers v. Watson, 6 Cir., 68 F. 730, 15 C.C.A. 632, it was said that the doctrine of equitable liens is one of great importance and of wide application in administering the rights and remedies peculiar to equity jurisprudence. There is perhaps no doctrine which more strikingly shows the difference between the legal and the equitable conceptions of the juridical results which flow from the dealings of men with each other, from their express or implied undertakings.'

'(5) In Kilbourne v. Wiley, 124 Mich. 370, 83 N.W. 99, 100, it is said that an equitable lien exists independently of any express agreement and equity enforces it on the principle that a person having gotten an estate of another ought not in conscience to keep it as between them. Included in this class of liens is the vendor's lien. Burdon Central Sugar-Refining Co. v. Ferris Sugar Mfg. Co. (C.C.) 78 F. 417, 421; Field v. Lang, 87 Me. 441, 32 A. 1004.'

In Gables Racing Ass'n v. Persky, 148 Fla. 627, 6 So.2d 257, 262, the court said:

'(4, 5) It is difficult if not unwise to attempt a definition of an equitable lien. Difficult because of the variety of circumstances out of which it may arise. Unwise because we must not draw a limit on the scope of equity jurisdiction. This court, however, has recognized equitable liens: Pratt v. Weeks, D.C., 1 F.Supp. 953; International Realty Associates v. McAdoo, 87 Fla. 1, 99 So. 117; Craven v. Hartley, 102 Fla. 282, 135 So. 899; Folsom v. Farmers' Bank of Vero Beach, 102 Fla. 899, 136 So. 524; Jones v. Carpenter, 90 Fla. 407, 106 So. 127, 129, 43 A.L.R. 1409.

* * *

* * * "Equitable liens are necessarily based on the doctrine of estoppel and usually arise in cases of expenditures by one joint owner on real or other property or in cases where a party innocently and in good faith makes improvements on the property of another.

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"Where a prejudicial situation results from a wrongful act of a third person, the decision must be against the party whose conduct made possible the wrongful act, either by fraud or negligence."

The right to and the granting of an equitable lien is not dependent upon whether or not the plaintiff also has a right to a statutory lien and the courts may grant to the plaintiff an equitable lien, even though the plaintiff might have been entitled to a statutory lien if he had complied with the mandatory provisions of the statute with regard thereto.

In Jones v. Carpenter, supra, the court said:

'(1) Appellant is not within any of the classes enumerated in sections 3496 and 3499 of the R.G.S. of Florida providing for statutory liens in certain cases, and in fact the parties who furnished the materials and performed the labor in question have been compensated out of the funds of the bread company, so any claim of appellant on the basis of a statutory lien, if there be such claim, is without merit; but the doctrine of equitable liens would never have come into existence if it were true that one who claims such a lien must first show a lien at...