Ferris-lee Lumber Co. v. Fulghum
| Decision Date | 16 July 1929 |
| Parties | FERRIS-LEE LUMBER CO. v. FULGHUM et al. |
| Court | Florida Supreme Court |
Bill by the Ferris-Lee Lumber Company against B. E. Fulghum and another, copartners doing business as the Fulghum Construction Company, and J. T. Wright and wife. From the decree, complainant appeals.
Affirmed.
Syllabus by the Court
Exceptions to bill for impertinence are taken like exceptions to answer for insufficiency and before answering. Exceptions to a bill for impertinence are to be taken in the same manner as exceptions to an answer for insufficiency and must be made before putting in an answer.
Florida recognizes estates by entireties as existing at common law except as modified by statutes or Constitution. Estates by entireties are recognized in the state of Florida as they existed at common law, except as modified by statute or constitutional provisions.
Neither husband nor wife owning estate by entirety, acting separately, could create materialman's lien upon lot. Neither husband nor wife as owner of estate by entirety acting separately, could create materialman's lien upon lot for building of house thereon.
Wife as owner of estate by entirety was not bound by materialman's cautionary notice that it was furnishing material to contractor constructing house on lot for owners there being no privity of contract (Const. art. 11, § 2; Comp. Gen. Laws 1927, § 5381). Wife as one of owners of estate by entirety was not bound either personally or through her interest in lot by cautionary notice of materialman furnishing building material to contractor constructing house on lot for owners, in compliance with Rev. Gen. St. 1920, § 3518 (Comp. Gen. Laws 1927, § 5381), since there was no privity of contract between wife and materialmen; knowledge or assent mentioned in Const. art. 11, § 2, providing that married woman's real property may be charged in equity for price of labor and material furnished with her knowledge or assent not applying.
Appeal from Circuit Court, Escambia County; Thomas F. West, judge.
Philip D. Beall and John M. Coe, both of Pensacola, for appellant.
L. L. Fabisinski and Forsyth Caro, both of Pensacola, for appellees.
J. T Wright and Lilly Wright, his wife, were the owners by entirety of a lot in Pensacola. B. E. and K. L. Fulghum were copartners doing business as Fulghum Construction Company. The Wrights employed the Fulghums to build a house on the lot owned by the former. The Ferris-Lee Lumber Company, a corporation, was a dealer in lumber and building materials.
On August 5, 1925, the Ferris-Lee Lumber Company served upon J. T. Wright a cautionary notice in writing that it was furnishing and was about to furnish lumber and materials to the Fulghums to be used in the construction, repair, and use of buildings, fences, and structures on the lot, giving a description of it. The notice was in compliance with the terms of section 3518, Rev. Gen. Stats. 1920 (section 5381, Comp. Gen. Laws 1927). See Mullikin v. Harrison, 53 Fla. 255, 44 So. 426; Reed v. Southern Lumber & Supply Co., 73 Fla. 886, 75 So. 29.
The Ferris-Lee Lumber Company, hereafter referred to as complainant, furnished materials to the Fulghums in the construction of the house to the value of $2,586.66, of which $1,699.20 was paid, leaving a balance due of $889.46; the complainant having applied the payments upon the items first appearing in the account. Complainant brought its bill against the Wrights and the Fulghums to enforce the lien claimed against the property and to declare a personal liability for the amounts due against all the defendants. The bill alleged that the Wrights had become indebted to Fulghum Construction Company since the service of the cautionary notice in an amount sufficient to pay the complainant's claim; that the complainant had furnished the materials set forth in the exhibit, which was made a part of the bill, and had also filed and caused to be recorded a lien upon the property. The bill required the Wrights to answer certain interrogatories: First, what sum of money had become due to the Fulghums since August 5, 1926; second, what sums of money had been paid to them since that date; and, third, what sums of money were due to the Fulghums? Subpoena was issued and service of it made upon the defendants, and in February, 1927, the Wrights filed 'exceptions for impertinence' to the bill of complaint.
Exceptions to a bill for impertinence are to be taken in the same manner as exceptions to an answer for insufficiency and must be made before putting in an answer. Puterbaugh's Chancery Pleading and Practice (5th Ed.) 81.
The first exception attacked the allegation as to the service by complainant upon the Wrights of the cautionary notice. All of paragraph 3 of the bill, which alleged that, since the delivery of the cautionary notice to the Wrights, they had become indebted to the Fulghum Construction Company in a sum greatly in excess of the value of the lumber furnished by the complainant, was attacked by the second exception. The third attacked that part of paragraph 5 of the bill which alleged that the complainant had placed the account in the hands of solicitors and was entitled to an allowance for solicitors's fees, and the fourth attacked the three interrogatories above mentioned.
The chancellor sustained the exceptions, and ordered the objectionable matter stricken from the bill of complaint. Afterward the defendants Wright demurred to the bill of complaint for want of equity, for lack of the existence of any materialman's lien upon the property, and that no lien could be obtained in the manner alleged for materials furnished in the construction of a building upon land held by a husband and wife by entireties. The demurrer was sustained, and the complainant appealed.
The question presented is whether a parcel of land held by the...
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