Bryan & Sons Corp. v. Klefstad, 71--217

• Citation: 265 So.2d 382
• Decision Date: 17 July 1972
• Docket Number: No. 71--217,71--217
• Parties: BRYAN AND SONS CORP., a Florida corporation, and Hubert E. Bryan, Appellants, v. Sivert KLEFSTAD et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 382

265 So.2d 382

BRYAN AND SONS CORP., a Florida corporation, and Hubert E. Bryan, Appellants, v. Sivert KLEFSTAD et al., Appellees.

No. 71--217.

District Court of Appeal of Florida, Fourth District.

July 17, 1972.

Rehearings Denied Aug. 25, 1972.

John A. Gentry, III, of Moyle, Gentry & Jones, West Palm Beach, for appellants.

Guy W. Held, of Winters, Brackett, Lord & Held, West Palm Beach, for appellees.

CROSS, Judge.

This is the second appearance of this case before us. The appellants-defendants, Bryan and Sons Corporation and Hubert E. Bryan, are appealing a second amended final judgment in an action arising out of a contract to clear land owned by appellees-plaintiffs, Sivert Klefstad, et al. The judgment awarded damages, costs, and attorneys' fees to defendants on their counterclaim.

Plaintiffs, owners of a parcel of unimproved land, entered into an agreement with the defendants whereby defendants were to clear the land and render it suitable for the planting of citrus trees. Before work on the property had begun, plaintiffs advanced defendants $10,000, in return for which defendants executed in favor of plaintiffs a promissory note in that amount, as well as a chattel mortgage on certain land-clearing machinery owned by defendants.

After the project had been substantially completed, work was stopped by defendants. Plaintiffs then instituted suit to foreclose the chattel mortgage and for damages for breach of the contract. Defendants counterclaimed to foreclose a mechanic's lien for work performed on the land. The cause was tried before the court without a jury. The final judgment itemized the sums determined by the court to be due to each of the parties from the other, and after offsetting these, awarded defendants a net recovery of $2,291.01 on the counterclaim.

Both parties appealed. On appeal, we reversed that part of the final judgment that determined that the defendants had breached the contract and the consequential award of $5,000 as offset damages to plaintiffs, and remanded to the trial court for determination of defendants' damages for extra work performed by defendants in excavating two main canals on the property. In all other respects, the final judgment was affirmed. Bryan and Sons Corp. v. Klefstad, Fla.App.1970, 237 So.2d 236.

On remand, defendants contended before the trial court that their award should be increased not only as to those items specified by the appellate court, but also that additional compensation should be allowed for extra work allegedly performed on 'sub-laterals,' or side canals which intersected the two main canals at various intervals. Defendants also contended that plaintiffs were improperly awarded interest on a promissory note executed by defendants in favor of plaintiffs in connection with the transaction. The amount of the interest previously awarded in the final judgment was $2,025. Finally, it was contended by the defendants that they were entitled to interest on the award from the date of plaintiffs' alleged breach of contract, and additional attorneys' fees.

On February 24, 1971, the trial court entered a second amended final judgment. Defendants' award was increased, pursuant to this court's mandate, by the $5,000 offset damages which had been previously awarded to plaintiff, and further by an amount of $4,050 which the court determined to be the compensation earned by defendants in performing the extra work excavating the two main canals on the property. The defendants' claims for additional compensation for work on the sublaterals, and additional interest and attorneys' fees were denied. The trial court also determined that plaintiffs were not entitled to interest on the promissory note as originally awarded. This appeal from the second amended final judgment then followed.

Four issues are presented for determination: (1) whether the trial court erred in failing to award defendants additional compensation for work in excavating the sub-lateral canals; (2) whether the trial court erred in failing to award defendants interest on the amount recovered; (3) whether the court erred in failing to award defendants additional attorneys' fees; and by plaintiffs' cross-assignment of error (4) whether the trial court erred in its determination that plaintiffs were not entitled to interest on the promissory note.

Initially, in regard to the first issue, this court's decision on the prior appeal specifically determined that the contract between plaintiffs and defendants provided for a firm contract price for all work done, except certain itemized 'extras.' It was stated:

'We conceive the effect of it to be that irrespective of the amount of work the corporate defendant performed on the job site, it was covered under the firm contract price unless the work could clearly be shown to be 'extra work'.' 237 So.2d 238.

The 'extra work' referred to above was specified in the contract to consist of clearing 'heads,' or slough areas, filling heads, 'dozer work in heads, and blasting rock. This court also determined that excavation work performed by defendants in enlarging the two main canals was extra work, for which defendants were entitled to receive additional compensation, inasmuch as the record clearly reflected that the excavation was authorized and approved by plaintiffs' engineers, and that plaintiffs had agreed to be bound by such authorizations.

The record does not reflect any such authorization for enlargement of the sub-lateral canals, or indeed whether such excavation was done at all. To the extent work was done on the sub-laterals, it must be considered as covered under the firm contract price, as determined by this court on the prior appeal. The trial court therefore did not err in denying defendants additional compensation for the alleged extra work on the sub-laterals.

Defendants' second contention is that the trial court erred in not awarding interest on the amount recovered, which interest should run from the date of plaintiffs' alleged breach of the contract. Defendants correctly contend that in actions ex contractu, it is proper to allow interest at the legal rate from the date the debt was due, rather than from the date of the judgment. E.g., Nationwide...