Curtiss-bright Ranch Co. v. Selden Cypress Door Co.

• Decision Date: 26 February 1926
• Parties: CURTISS-BRIGHT RANCH CO. v. SELDEN CYPRESS DOOR CO. et al.
• Court: Florida Supreme Court

107 So. 679

91 Fla. 354

CURTISS-BRIGHT RANCH CO. v. SELDEN CYPRESS DOOR CO. et al.

Florida Supreme Court, Division B.

February 26, 1926

Suit by the Curtiss-Bright Ranch Company against the Selden Cypress Door Company and others, to quiet a title and for other relief, in which the named defendant and defendant John B Orr filed cross-bill. From an adverse decree, the complainant appeals.

Reversed with directions.

Syllabus by the Court

SYLLABUS

Where contractor abandons building contract and building is completed by landowner, liens may be obtained for amounts not greater than amount due contractor under contract. Where the contractor abandons the building contract and the building is completed by the owner of the land, liens may be obtained for amounts not greater than the amount due to the contractor under the terms of the contract.

Assignee of building contractor, or surety on his bond, may be successor in interest to contractor, but interest of owner of building is adverse to that of contractor. An assignee of a building contractor, or a surety on a contractor's bond may be a successor in interest to the contractor, but the interest of the owner of the building is adverse to that of the contractor.

On contractor's abandonment of contract when no mechanic's lien had been acquired, nothing was due contractor, and nothing afterwards became due him because owner completed it at loss, no liens attach to owner's property in favor of those who furnished material and labor to contractor before his abandonment of contract. Where the contractor abandons a building contract when no liens of materialmen or laborers had been acquired against the property, and when there was nothing due and unpaid to the contractor on the part performance of the contract, and nothing afterwards became due to the contractors or their successors in interest on the contract, because, the owner completing the building at a loss on the contract price, no liens attach to the owner's property for those who furnished material and labor to the contractor before he abandoned the contract.

Bond to secure performance of building contract, given expressly to indemnify owners and all persons who may become entitled to claims or liens under contract according to law, should not be held to give rights of action to those furnishing labor and material to contractor having no claim against property owners, unless terms thereof clearly require such interpretation. Where a bond is given to secure the performance of a building contract, the owners of the property being the obligees, and the bond is expressly given to indemnify the owners and 'all persons who may become entitled to claims or liens under the contract according to the provisions of the law in such cases made and provided,' the provisions of such bond should not be held to give rights of action thereon in favor of those who furnish labor and material to the contractor, but have no claims under the law against the property owners, obligees in the bond, unless the terms of the bond clearly require it to be so interpreted.

Unless cautionary notice was delivered by lien claimant before contractor abandoned work and before second payment was made to him, only sum which claimant could demand of owner of premises would be that left in his hands after completing building for account of contractor and his surety; claim of person furnishing labor and material to contractor, who abandoned contract against owner of premises, held subject to lien acquired by delivery to owner of notice of claim prior to such person's notice. Unless a cautionary notice was delivered to the owner by the claimant before the contractor abandoned the construction of the building and before the second payment was made to him, then the only sum which this claimant could demand of the owner would be whatever sum was left in the hands of the owner after completing the building for the account of the contractor or his surety; and this claim would be subject to any lien which was acquired by the delivery to the owner to notice of the claim prior to the delivery to the owner of notice of claim by claimant.

Mechanic's lien claimant must allege and prove strict compliance with each requirement of statute; no act necessary to acquiring of mechanic's lien can be presumed to have been performed in absence of proof thereof; cautionary notice of mechanic's lien claimant must be delivered to owner or his agent (Rev. Gen. St. 1920, §§ 3517, 3518). The lien is strictly statutory, and before any person may have such lien the statutory provision must be strictly complied with, and before he can enforce such lien the claimant must allege and prove a strict compliance with every requirement of the statute. No act necessary to the acquiring of the lien can be presumed to have been performed, in the absence of proof that it was performed. The statutes require that a cautionary notice, to be of any effect, must be delivered to the owner or his agent.

Appeal from Circuit Court, Dade County; H. F. Atkinson, judge.

COUNSEL

Burdine & Barco, of Miami, for appellant.

L. Earl Curry, of Miami, for appellees.

OPINION

BUFORD J.

The Curtiss-Bright Ranch Company owned a certain lot in Hialeah in Dade county, Fla., and entered into a contract with one H. A. Hopkins, by the terms of which Hopkins was to furnish the material and erect on the certain lot a building for the sum of $12,400.

Hopkins executed a bond, payable to the Curtiss-Bright Company, with the United States Fidelity & Guaranty Company as surety, for the faithful performance of the contract.

Hopkins enters upon the work of constructing the building and partially finished it. While he was proceeding with the work of constructing the building, he, on March 21, 1922, received a payment on account of contract in the sum of $4,133. Afterwards on the 9th day of May, 1922, while still engaged in the constructing of the building, he received a like payment in a like amount. And thereafter and before any further sum was paid to the said Hopkins, and before he had finished the performance of his contract, he abandoned the construction of his contract, breached the contract, and went to parts unknown.

When Hopkins abandoned his contract and left that part of the country, the surety company was called upon by the owners to make good on its guaranty in behalf of Hopkins. The surety company authorized the owners to finish the construction of the building under the terms of the contract for its account.

The building was finished by Curtiss-Bright Ranch Company for the account of the surety company at a cost of $796.51 less than the contract price.

After Hopkins had received the second payment above referred to, and after his surety on his bond had authorized the completion of the building for the account of the surety company, appellees filed in the office of the clerk of the circuit court and caused to be recorded certain claims of liens for work done and material furnished.

The aggregate of the liens claim was far in excess of the amount of $796.51, which was the sum left after completing the building under the terms of the contract. In April, 1923, Curtiss-Bright Ranch Company filed a bill of complaint in the circuit court of Dade county, Fla., setting up the facts, in which bill of complaint the lien claimants and the United States Fidelity & Guaranty Company were made defendants, and in which it was alleged that the defendants had no lien under the circumstances for any aggregate amount greater than the amount remaining due on the contract price after the building had been finished, to wit, the sum of $796.51.

The appellant further alleged that the liens placed on record constituted a cloud on the title of the owners and complainants, and that the same would tend to and did depreciate the market value of the property. The prayer was as follows, to wit:

'Therefore, to the end that the said clouds may be removed from the records against your orator, and to the end that the said moneys may be properly applied or divided among the several defendants, and to the end that proper priority may be determined, your orator doth interplead, and your orator doth herewith tender unto the registry of this honorable court the said sum of $796.51 in lawful money of the United States of America, and prays that the court will accept said moneys and will finally prorate or divide the same among the defendant creditors in such a manner as the laws of this state require.

'For and inasmuch as your orator is without remedy except in a court of equity, your orator prays as follows:

'(a) That your orator may be granted the right to interplead in this suit to the end that the said sum of $796.51 may be prorated and divided in such manner as this honorable court may determine upon among the several defendant creditors herein.

'(b) That the defendants and each of them may be required to file an answer herein, but not under oath, as answer under oath is waived, therein and thereby setting forth and showing unto the court their several respective claims in and to said sum hereinbefore referred to, to the end that the court may fix and determine the several priorities.

'(c) That the several liens filed for record, as aforesaid, by the defendants named therein, may be decreed to be invalid and to be clouds on your orator's title, and may be canceled and expunged from the records, to the end that your orator may enter upon and enjoy his property without molestation or hindrance created thereby, and that each and every one of the said defendants may be restrained and enjoined from hereafter asserting or claiming any liens against your orator's lands, as described herein, and that the rights of all partie...