Crim v. Drake

• Decision Date: 14 November 1923
• Parties: CRIM et al. v. DRAKE.
• Court: Florida Supreme Court

98 So. 349

86 Fla. 470

CRIM et al. v. DRAKE.

Florida Supreme Court

November 14, 1923

Error to Circuit Court, Broward County; E. C. Davis, Judge.

Suit by S. L. Drake against Henry C. Crim and another. Judgment for plaintiff, and defendants bring error.

Reversed.

Syllabus by the Court

SYLLABUS

Allegations in replication inconsistent with declaration constitute departure. Allegations in a replication, inconsistent with those in a declaration, deprive the defendant of his right to have a definite issue upon which the case can be submitted to the jury, and prevents the issue from being clearly and accurately defined, and constitute a departure in pleading.

Replication placing right of recovery on different theory than declaration a departure. A replication that sets forth matter not declared on in the original pleading, which is a contradiction of the allegations of the declaration, and seeks to place the right of recovery upon a different theory to that of the declaration, is a departure in pleading.

Statute allowing solicitor's fees to materialmen and laborers held unconstitutional. The provisions of section 3525 Revised General Statutes, 1920, which allows solicitors' fees in favor of the materialmen and laborers, are unconstitutional.

COUNSEL

Baxter & Chancey, of Fort Lauderdale, for plaintiffs in error.

C. E Farrington, of Miami, for defendant in error.

OPINION

BROWNE J.

S. L Drake brought suit against Henry C. Crim and Harry C. Crim to recover a balance alleged to be due the plaintiff for services under a verbal contract for acting as superintendent of construction for defendants in the construction of a store building, in which the plaintiff was to furnish material and tools necessary for the erection of the building, oversee the workmen, assist in the purchase of materials, and superintend the construction of the building or so much thereof as the defendants desired.

In consideration of his services, the defendant----

'agreed to pay plaintiff an amount equal to 10 per cent. of the cost of the construction of the building, including the materials and labor thereof, except on specific articles on which 5 per cent. was agreed to be charged.'

The declaration alleges that plaintiff 'did act as superintendent of construction in the construction of said building'; that he 'did furnish the engines and machinery, oversee the workmen, assist in the purchase of materials, and supervise the construction of said building to the substantial completion thereof, as ordered by the defendants, according to the terms of his contract, and had fully discharged his duties thereunder to defendants prior to June 1, 1921, fully and completely as he had obligated himself to do.' (Italics ours.)

The defendant filed five pleas. The fourth set up that the building 'was constructed in an imperfect and defective manner so as to be unfit for the use for which it was designed'; that it 'was so constructed by the plaintiff that it did not and does not withstand rain; after the construction of said building, as a result of rainy weather water leaked through the sides and walls of said building, and caused a large quantity of plaster to fall from the ceilings and inside walls of said building, and damaged and injured the stock of goods and merchandise which the defendants in the operation of their said store had placed in said building; that, in addition to the damage to said stock of goods and to the plaster upon said building, the defendants have been and will be compelled to incur a large expenditure for labor and materials to put the said building in a good and substantial and workmanlike condition, and to make the same fit for the use for which it was intended,' and offered to recoup so much of their damage and loss as would equal the claim of the plaintiff.

To this plea the plaintiff filed a replication, in which he admits that he agreed to construct the building as alleged in the first part of the fourth plea----

'except that same was to be constructed under the supervision of the defendants; plaintiff admits that said building leaked to some extent, but that said leakage, if any, was caused by the discontinuation of the construction of said building before the same was fully completed, by the orders of the defendants. Plaintiff further says that if any damage resulted from the leakage of said building that the same was the direct cause of the action of the defendants in concluding the work on said building before the same was fully completed.' (Italics ours.)

A motion to strike the replication to the fourth plea was overruled, and this is assigned as error.

The declaration, alleged as the basis of the plaintiff's claim, that he 'did act as superintendent of construction in the construction of said building'; that he did 'oversee the workmen'; that he did 'supervise the construction of said building to the substantial completion thereof'; 'and had fully discharged his duties thereunder to defendants prior to June 1, 1921.

When met by the defendant's fourth plea that the services, which were in a large part the basis of plaintiff's claim, were not performed in a 'substantial, skillful, and workmanlike manner,' and that the building was 'unfit for the use for which it was designed, and that the defendant had suffered considerable damage as the result of the plaintiff's unskillful and improper construction,' the plaintiff changes front, and files a replication containing allegations inconsistent with the allegations of his declaration.

In his declaration he says that 'he acted as superintendent of construction to the substantial completion of the building;' but in his replication he says that it 'was to be constructed under the supervision of the defendants.' In his declaration he says that his superintendence continued 'to the substantial completion of the building,' but in his replication he says that 'the leakage was caused by the discontinuation of the construction of the building before the same was fully completed by the orders of the defendant.'...