Florida Builders, Inc. v. Stephenson Tile, Inc., F-309

• Decision Date: 08 September 1964
• Docket Number: No. F-309,F-309
• Citation: 167 So.2d 58
• Parties: FLORIDA BUILDERS, INC., a Florida corporation, Appellant, v. STEPHENSON TILE, INC., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 58

167 So.2d 58

FLORIDA BUILDERS, INC., a Florida corporation, Appellant, v. STEPHENSON TILE, INC., a Florida corporation, et al., Appellees.

No. F-309.

District Court of Appeal of Florida, First District.

Sept. 8, 1964.

Boyd, Jenerette & Leemis, Jacksonville, for appellant.

Hazard & Fernandez, Jacksonville, for appellees.

WIGGINTON, Judge.

This appeal is brought by plaintiff who seeks reversal of a judgment entered in its favor in an action for damages arising out of a breach of contract. Plaintiff contends that the trial court who sat as a trier of both the law and the facts, a jury having been waived, erred in refusing to consider all of the credible testimony and evidence with respect to the issue of damages, and by having rendered a verdict and judgment in which the damages awarded are grossly inadequate.

Plaintiff is a general contractor who contracted to construct a housing project at Fort Rucker, Alabama. Plaintiff subcontracted the tile work to defendant who agreed to install the tile on the floor and walls in each of 800 bathrooms in accordance with the plans and specifications for an agreed sum of $143,000.00. Plaintiff's complaint alleges that defendant breached its contract in that the tile work installed by it on the walls in each of the 800 bathrooms was defective and would have to be replaced; that because of such breach of contract plaintiff suffered damages for which judgment is prayed. Defendant filed its answer pleading general denial, an affirmative defense and counterclaim. At the conclusion of the trial the court entered judgment awarding plaintiff damages in the sum of $7,593.75, plus attorneys fees and court costs.

The only evidence with respect to damages was introduced by the plaintiff. There is no dispute as to the amount of tile work included in the subcontract found to have been breached by defendant, nor the amount of tile work which was installed on the walls in each of the 800 bathrooms. There is likewise no dispute as to the cost per square foot required to be expended in order to correct the defective work performed by defendant.

The witnesses who testified on behalf of plaintiff based their estimate of damages on the amount which would be required to remove and replace the tile in each of the 800 bathrooms included in the contract. It developed, however, that one of these witnesses had actually inspected and found defective tile work to exist in only 60 bathrooms, while the other witness for plaintiff had actually inspected and found the tile work to be defective in only 75 bathrooms. The record is silent as to whether the inspections made by these witnesses were of the same or different housing units. The opinion of each of these witnesses that the tile would have to be replaced in all 800 bathrooms was based upon hearsay evidence acquired by them from reports and statements of other inspectors, and from complaints made by some of the tenants in the housing units. The trial court's award of damages was based upon defective work in only 75 bathrooms, this figure being the greater number of bathrooms inspected by either of plaintiff's witnesses.

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