Dewing v. Davis, 1007

• Decision Date: 05 February 1960
• Docket Number: No. 1007,1007
• Citation: 117 So.2d 747
• Parties: Arthur S. DEWING and Frances R. Dewing, his wife, Appellants, v. C. A. DAVIS, trading and doing business as Davis Grove Service, Appellee.
• Court: Florida District Court of Appeals

Page 747

117 So.2d 747

Arthur S. DEWING and Frances R. Dewing, his wife, Appellants, v. C. A. DAVIS, trading and doing business as Davis Grove Service, Appellee.

No. 1007.

District Court of Appeal of Florida, Second District.

Feb. 5, 1960.

Hull, Landis, Graham & French, Deland, for appellants.

Rodgers & Kirkland, Orlando, for appellee.

KANNER, Judge.

The suit about which this appeal is concerned was brought to establish and enforce a lien for labor and services against lands owned by the appellant, Arthur S. Dewing. The chancellor, finding that the appellants were indebted to the appellee in the sum of $6,886.25, charged the property with an equitable lien. In this appeal, the Dewings cite as error the chancellor's adjudicating of an equitable lien, his holdings that Mrs. Dewing is also an owner of the property and that the Dewings are indebted to the appellee.

The Dewings moved for summary decree, proffering as basis the pleadings and the deposition of Davis, the appellee. This motion was denied. Petition for certiorari filed by them in the Supreme Court seeking review of this interlocutory order was also denied. Dewing v. Davis, Fla.1957, 97 So.2d 307. The issue set forth through the briefs in that proceeding related to a statutory lien, with and without privity, and to the applicability of an equitable lien.

The record discloses that a contract on a standard form entitled 'Receipt for Deposit-Offer to Purchase and Contract for Sale' was entered into on November 7, 1955, for sale of Gardena Farms, the property here involved, containing approximately 485 acres of citrus grove, by Arthur S. Dewing to R. P. Swetman and J. B. Chamberlain. The contract provided that the existing crop of fruit should be the property of the purchasers, that proceeds from the sale of any fruit should be placed in escrow and credited to the purchasers upon closing, and that the purchasers would attain possession at the time of closing. The contract was never consummated.

Swetman, in November, 1955, went into possession of Gardena Farms, not under the written contract, but under a series of oral agreements with Arthur S. Dewing. It was understood that Swetman was to be in possession and in charge of the property, that he was to care for it, sell the fruit, and perform other duties appropriate to grove ownership. Swetman engaged the appellee, Davis, a professional grove caretaker, to perform the work of the grove. He also consulted with the operator of a grove advisory service concerning the planning of work and care of the grove.

Pursuant to arrangements made with Swetman, Davis assumed care of the grove in the latter part of November. The first work done by Davis was early in December, 1955, and the last on April 5, 1956. He began this service without communication with Dewing; he submitted his statements to Swetman and was never paid; he knew the proceeds from fruit sold would be put in escrow; and Swetman told him that he, Swetman, was in complete charge of the property. The work performed was essential and beneficial to the grove, consisting of many different items, such as grubbing palmettoes, hauling brush, fertilizing, discing, spraying, pruning, unbanking and hoeing young trees, all of which constituted normal grove care except for the grubbing of palmettoes and removal of underbrush. Additionally, Davis arranged for the sale of the entire crop of fruit, estimated in value at from fifty to sixty to seventy thousand dollars. There was testimony that the work was well done and that the prices charged by Davis were reasonable.

As to knowledge by Dewing concerning what transpired in connection with the grove, Swetman testified that he consulted with Dewing with reference to the work to be done on the grove and discussed this subject with him on December 8, 1955, at Winter Park, Florida, and later in Boston, Massachusetts, where he went over with Dewing the recommendations proffered by the advisory service consultant as to the grove. He further testified that Dewing said that Swetman was the man to supply the attention needed by the grove, and that on December 8, Dewing was satisfied with the manner in which the grove was being handled and with the plans for its continued care.

Dewing was aware that Davis was doing the grove work. For a time prior to assumption of possession by Swetman, Dewing had in his employ a certain worker whom he insisted should remain on the grove until the sale transaction was closed so that he could obtain reports from the worker as to what took place in connection with the grove. This employee's salary was paid during a part of the time by Dewing and a part of the time by Swetman, and he appears to have worked simultaneously for both parties. Dewing, upon meeting Davis at the grove at one time, inquired as to his authority to do the work and was told by Davis that Swetman had employed him to do it. To this, Dewing replied, 'Well, Mr. Swetman is the man. You do whatever he tells you to do.' At another time Davis saw Dewing on the property while work was in progress but had no conversation with him.

The contract failed of consummation and Dewing regained possession. Of the fruit which Davis had sold, about 13,000 boxes of valencia oranges were picked after Dewing regained possession; and at the time this suit was filed, the funds realized from sale of the fruit and placed in escrow had been paid to Dewing by court decree resulting from other litigation involving Dewing, Swetman, and the buyer of the fruit.

Claim of lien by Davis against Gardena Farms was filed in May, 1956. This claim itemized services and labor performed to the extent of $6,886.25. Copy of the claim of lien was served on Dewing by mail on May 16, 1956, and he admitted receipt of it in his answer to the complaint. No claim was made by Davis for his services in effecting the sale of the fruit crop.

The Dewings did not testify. The chancellor in his decree found that Arthur S. Dewing and his wife, Frances R. Dewing, are owners of the land; that they entered into a contract for sale of the property to Swetman: that Swetman went into possession and began cultivation of the grove; that Arthur S. Dewing permitted and authorized the possession and management by Swetman; that pursuant to such authorization and...