City of Leesburg v. Hall

• Decision Date: 11 July 1928
• Citation: 117 So. 840,96 Fla. 186
• Parties: CITY OF LEESBURG v. HALL et al.
• Court: Florida Supreme Court

117 So. 840

96 Fla. 186

CITY OF LEESBURG v. HALL et al.

Florida Supreme Court, Division B.

July 11, 1928

Error to Circuit Court, Lake County; J. C. B. Koonce, Judge.

Action by J. S. Hall and another, doing business under the firm name of Hall & Harris, against the City of Leesburg. Judgment for plaintiffs, and defendant brings error.

Reversed.

(Syllabus by the Court.)

COUNSEL

Gaines & Futch, of Leesburg, for plaintiff in error.

Kennedy & Johnson, of Tavares, for defendants in error.

OPINION

BUFORD, J.

In this case well will refer to the defendants in error as the plaintiffs and the plaintiff in error as the defendant, as thus they appeared in the court below.

The plaintiffs entered into a contract with defendant to construct some 46,500 cubic yards of sand and muck fill around the margins of several lakes or ponds in the city of Leesburg; the fills to be made of material dredged or excavated from near the central portions of several ponds. The contract provided that payments for making such fills were to be made monthly upon estimates of completed work. The plaintiffs moved machinery on the scene and began the fulfillment of the contract by making the fill around one of the ponds. They were paid for completing 968 yards of fill less 10 per cent. of the contract price, which was retained by defendant in accordance with the terms of the contract to be paid upon completion of the work. It appears that they dredged other materials, but completed no additional fill. The contract provided that the material for constructing the fills should be dredged or excavated from ponds or locations designated by defendant's engineers. About the 13th of August, 1925, the defendant's engineer designated a location from which material for a certain fill was to be dredged or excavated. The plaintiffs declined to dredge the material for that certain fill from that location so designated, and suspended work. There was a provision in the contract that, in the event plaintiffs at any time abandoned the work or failed to prosecute the same or violated any provision of the contract, the defendant should have the right to declare the contract void. On August 24, 1925 defendant took the position that plaintiffs had abandoned the contract, and therefore defendant declared the contract to be null and void. Thereafter the plaintiffs moved their machinery and sued the defendant, alleging breach of the contract made.

The declaration is in seven counts. The first count is a common count for labor and material furnished. The other six counts allege in different phraseology the making of the contract and the breach thereof by the defendant by declaring the contract null and void.

The second, and sixth counts allege that the contemplated work was the dredging and excavation of sand and muck from 'the central portions of the ponds,' while the fifth and seventh counts allege that the contemplated work was the dredging and excavating of sand and muck from 'near the central portions.' The third count alleges that the defendant's engineer required plaintiffs to dredge at points other than 'near the central portion,' of the several ponds. The fourth count alleges the number of cubic yards of fill to be constructed and the price to be paid therefor. The fifth count is much like the fourth.

To the declaration, the defendant pleaded the general issue of 'never was indebted as alleged,' which was only applicable to the first count of the declaration, and for plea to the second, third, fourth, fifth, sixth, and seventh counts of the declaration the defendant pleaded:

'The plaintiffs first breached the contract in this, that on August 13, 1925, and at divers times before then, the defendant's engineer repeatedly designated to the plaintiffs from which portions of the said ponds in the declaration mentioned the materials should be excavated or dredged; that the plaintiffs failed and refused to excavate or dredge material from the portions or areas of said ponds so designated by defendant's engineer; that all the material dredged or excavated by the plaintiffs, except 968 yards thereof, was dredged or excavated from portions or areas of said ponds not designated therefor by said engineer, and after designation by him of the portions or areas of said ponds from which material was to be taken, and in direct and willful violation of his designation and instructions; that, still refusing to comply with the designation of areas by the said engineer and in violation of their contract, promises, and agreements, the plaintiffs abandoned said work and refused to perform the work or dredge or excavate the material by them to be done as in and by said contract is provided, and still fail and refuse so to do.'

No replication or joinder of issue was filed. Therefore the case was tried without any issue being made up concerning the allegations contained in the plea to the second, third, fourth, fifth, and sixth counts of the declaration. This was error. See Benbow v. Marquis, 17 Fla. 441; also McKinnon v. McCollum, 6 Fla. 376; also Asia v. Hiser, 22 Fla. 378; and Muller v. Ocala Foundry & Machine Works, 49 Fla. 189, 38 So. 64.

At the trial of the cause, the court gave certain charges marked 'first,' 'second,' and 'third,' which were in the following language:

'First. The court changes you, gentlemen of the jury, that, in construing the contract in this case, you should consider the instrument as a whole and not detached portions thereof in arriving at the true intention of the parties, and that where the language of the contract is ambiguous and susceptible to two constructions, the interpretation should...