Broward County Port Authority for Use and Benefit of Cappelen v. F. M. Rule & Co.

• Decision Date: 30 March 1960
• Docket Number: No. 1604,1604
• Citation: 119 So.2d 82
• Court: Florida District Court of Appeals
• Parties: BROWARD COUNTY PORT AUTHORITY, for the Use and Benefit or Arthur R. CAPPELEN, formerly doing business as Beacon Light Paint and Wallpaper, Corp., a Florida corporation, and Arthur R. Cappelen, individually, Appellants, v. F. M. RULE & COMPANY, a Florida corporation; and American Casualty Company of Reading, Pennsylvania, Appellees.

Page 82

119 So.2d 82

BROWARD COUNTY PORT AUTHORITY, for the Use and Benefit or Arthur R. CAPPELEN, formerly doing business as Beacon Light Paint and Wallpaper, Corp., a Florida corporation, and Arthur R. Cappelen, individually, Appellants, v. F. M. RULE & COMPANY, a Florida corporation; and American Casualty Company of Reading, Pennsylvania, Appellees.

No. 1604.

District Court of Appeal of Florida, Second District.

March 30, 1960.

Sullivan, Musselman, Wyckoff & Cochran, Pompano Beach, for appellants.

McCune, Hiaasen, Crum & Ferris, Fort Lauderdale, for appellee, F. M. Rule & Co.

KANNER, Judge.

The court rendered summary judgment dismissing the complaint as having been prematurely brought, and the appeal is from the order so adjudicating.

The complaint dismissed was framed under two counts. In the first count, the plaintiffs asserted their claim under a subcontract with the defendant, F. M. Rule & Company, for labor, materials, and equipment used by the plaintiffs in painting certain transit warehouse sprinkler systems. Under this count, the plaintiffs averred that the original work specified by the subcontract had been completed and payment made, but that the present claim was for additional work specifically said to have been ordered and performed under the subcontract, as evidenced through extra work order sheets. It was also asserted that the subcontract and the additional work under it were entered into pursuant to a prime contract between F. M. Rule & Company and the Broward County Port Authority. The second count specified the same work in the same amount, together with the necessary materials and equipment. It alleged that the subcontract had been completed and that the work involved in the claim was performed under a new subcontract entered into between the plaintiffs and the defendants. A copy of the original subcontract and copies of the work orders for the extra work were attached to the complaint as exhibits.

F. M. Rule & Company, moving for summary judgment on the ground that the action was prematurely brought, submitted a supporting affidavit which set forth that under the terms of the subcontract, payment to the subcontractor was subject to certain provisions of the prime contract; that the subcontractor was to receive payment within five days after the prime contractor had been paid by the Broward County Port Authority; and that F. M. Rule & Company as the prime contractor had not received payment under its prime contract. It was asserted that, because of the port authority's failure to pay the contract price, a suit in chancery had been instituted by F. M. Rule & Company against the port authority as case number C 59 131 D. The record and proceedings in case C 59 131 D, including the prime contract, were by reference incorporated in and made a part of both the motion for summary judgment and the affidavit. In opposition the plaintiffs filed a motion, together with an affidavit, supporting, primarily, the allegation of the second count of the complaint.

At the hearing on the motion for summary judgment, the plaintiffs, through counsel, announced the intention to...