Board of Public Instruction, Broward County, ex rel. and for Use and Benefit of Monmouth Plumbing Supply Co. v. Rood Const. Co.

Decision Date07 July 1964
Docket NumberNo. 63-521,63-521
Citation166 So.2d 701
PartiesThe BOARD OF PUBLIC INSTRUCTION, BROWARD COUNTY, Florida, at the relation of and for the Use and Benefit of MONMOUTH PLUMBING SUPPLY COMPANY, Inc., a Florida corporation, Appellant, v. ROOD CONSTRUCTION COMPANY, a Florida corporation, Maryland Casualty Company, a Maryland corporation, McDonald Air Conditioning, Inc., a Florida corporation, Seaboard Surety Company, a New York corporation and William C. Cameron, Trustee of Patterson Plumbing, Inc., a Florida corporation, Appellees.
CourtFlorida District Court of Appeals

William A. Ingraham, Jr., Miami, for appellant.

Paul A. Louis, Bertha Claire Lee and Fay L. Becker, Miami, for appellees.

Before BARKDULL, C. J., and HORTON and HENDRY, JJ.

HORTON, Judge.

The Board of Public Instruction of Broward County was the plaintiff and now prosecutes this appeal for the use and benefit of Monmouth Plumbing Supply Company, Inc., which was a materialman under a public works contract. The defendants were the prime contractor, his subcontractors and their sureties pursuant to § 255.05, Fla.Stat., F.S.A. 1 and the litigation below resulted in the entry of a summary final judgment adverse to appellant. The principal question involved is whether the protection of a payment bond pursuant to § 255.05, supra, extends to a person who furnishes or contracts to furnish labor and materials to a sub-subcontractor.

The complaint alleges that on July 10, 1961, the appellee Rood Construction Company contracted with the appellant Board, a public authority, to furnish all labor and materials necessary to construct a new high school building in the City of Fort Lauderdale. Article IX of the contract provided that the contract would be effective upon its execution coupled with the delivery of a surety bond guaranteeing the performance of 'this contract and as security for the payment of all persons performing labor and furnishing materials in connection with this contract.' Bond was duly furnished by the appellee Maryland Casualty Company in the principal sum. On or about July 28, 1961, Rood subcontracted a portion of the work on the above job to the appellee McDonald Air Conditioning, Inc., who in turn furnished a performance bond to Rood with the appellee Seaboard Surety Company as surety. The latter bond provided that all persons supplying labor or materials to the principal for use in the prosecution of the work under the contract would have a right of action upon the bond. Subsequently McDonald engaged the services of Patterson Plumbing, Inc., to do a portion of the work on the job. On divers dates between December, 1961, and April 3, 1962, Patterson purchased various plumbing supplies and materials from appellant Monmouth Plumbing Supply Company, Inc., which materials and supplies were delivered to and incorporated in the project. Shortly thereafter, Patterson was adjudicated bankrupt and the appellee Cameron was duly appointed trustee thereof.

On February 11, 1963, appellants instituted suit against Cameron, as trustee, Rood as prime contractor, and the subcontractors and their sureties pursuant to § 255.05, supra, seeking to recover the sum of $15,799.75, representing purchases and deliveries by Monmouth during the above-mentioned period. After the appellees had answered, the cause came on to be heard before the lower court upon motions for summary judgment accompanied by affidavits filed by both sides. There being no issue of fact, the court entered summary judgment in favor of the appellant against Cameron as trustee for Patterson, and summary judgment against the appellant and in favor of the remaining appellees. This appeal followed.

For the sake of clarity, we pause here to summarize the position of the parties. The prime contract was between the Board of Public Instruction and Rood; McDonald was a subcontractor to Rood; Patterson was McDonald's subcontractor (a sub-subcontractor in relationship to Rood) and Monmouth was a supplier or materialman to Patterson.

As indicated above, we must here decide whether Monmouth, the unpaid materialman or supplier to Patterson, the sub-subcontractor, is entitled to reover from the prime contractor or its surety under § 255.05, supra. This particular question appears to be one of first impression in the State of Florida. Inasmuch as there is a paucity of Florida law on this specific point, we have turned to the Federal Miller Act, 40 U.S.C.A., § 270a, et seq., which is the basis for our Chapter 255. See Winchester v. State, Fla.App.1961, 134 So.2d 826; Union Indemnity Company v. State, 99 Fla. 656, 127 So. 307; and Kidd v. City of Jacksonville, 106 Fla. 312, 143 So. 307.

The United States Supreme Court in the case of MacEvoy v. United States, 322 U.S. 102, 64 S.Ct. 890, 88 L.Ed. 1163, held that a materialman supplying another materialman having a direct contractual relationship with the prime contractor was not entitled to the protection of the bond on the ground that the first materialman was not a 'subcontractor' under the Act, and that the relationship existing between the second materialman and the prime contract was too remote. The holding of the MacEvoy case--that is, that a materialman supplying another materialman, is too remote a relationship to be afforded protection unless the one supplied comes within the definition of a 'subcontractor'--has been followed or recognized in several subsequent cases. The federal case most analogous to the one at bar is that of United State for the Use and Benefit of Newport News Shipbuilding and Dry Dock Co. v. Blount Brothers Construction Company, 1958, D.C.Md., 168 F.Supp. 407. In that case Blount was the prime contractor,...

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  • Delduca v. United States Fidelity & Guaranty Company
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 1, 1966
    ...1930, 99 Fla. 656, 127 So. 307. Solving a problem of first impression in Florida, the Court in Board of Public Instruction, etc. v. Rood Constr. Co., Fla.Dist.Ct.App., 1964, 166 So.2d 701, 702, "turned to the federal Miller Act, 40 U.S.C.A. § 270a, et seq., which is the basis for our Chapte......
  • Harvesters Group, Inc. v. Westinghouse Elec. Corp.
    • United States
    • Florida District Court of Appeals
    • June 7, 1988
    ...denied, 378 So.2d 346 (Fla.1979); Winchester v. Florida Elec. Supply, 134 So.2d 826 (Fla. 2d DCA 1961); Board of Pub. Instruction v. Rood Constr. Co., 166 So.2d 701 (Fla. 3d DCA 1964). Cf. Coastal Caisson Drill Co. v. American Casualty of Reading, Pa., 523 So.2d 791 (Fla. 2d DCA 1988).4 Flo......
  • City of Fort Lauderdale ex rel. Bond Plumbing Supply, Inc. v. Hardrives Co.
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    • Florida District Court of Appeals
    • September 18, 1964
    ...same conclusion in the case of Board of Public Instruction, Broward County, Florida v. Rood Construction Company, opinion filed July 7, 1964, 166 So.2d 701. This reasoning is applicable to the instant case. To allow a sub-subcontractor or a materialman of a sub-subcontractor, as well as oth......
  • Miami-Dade Water and Sewer Authority v. Progress Supply, Inc.
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    • September 30, 1980
    ...Inc. v. Hardrives Co., 167 So.2d 339 (Fla.2d DCA 1964) and Board of Public Instruction, Broward County ex rel. Monmouth Plumbing Supply Co. v. Rood Construction Co., 166 So.2d 701 (Fla.3d DCA 1964), citing federal cases similarly interpreting the Miller Act, 40 U.S.C. § 270a, after which ou......
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