Fuller Industries, Inc. v. R. Terry Blazier & Son, Inc.

Decision Date08 June 1966
Docket NumberNo. 6196,6196
Citation188 So.2d 2
PartiesFULLER INDUSTRIES, INC., and the Board of Public Instruction of Lee County, Florida, a public authority for the Use and Benefit of Fuller Industries, Inc., a foreign corporation authorized to do business in the State of Florida, Appellants, v. R. TERRY BLAZIER & SON, INC., a foreign corporation authorized to do business in the State of Florida, and United Bonding Insurance Company, a corporation authorized to do business in the State of Florida, Appellees.
CourtFlorida District Court of Appeals

Smoot, Blair & Whigham, Ft. Myers, for appellants.

Allen, Knudsen, Swartz, Richardson & DeBoest, Ft. Myers, for appellee United Bonding Ins. Co.

MAXWELL, OLIVER C., Associate Judge.

This is an appeal from an order dismissing with prejudice a complaint against a surety on a bond issued under F.S Section 255.05, F.S.A., brought by a materialman of a sub-contractor. The general contractor was not made a party to the suit. The complaint did not allege that the 90 day notice, provided for in the statute, was given to the Contractor; although, it was alleged that notice was given to the Owner and the Surety. The bond itself provided:

'(a) Unless claimant, other than one having a direct contract with the principal, shall have given written notice to any two of the following: The Principal, the Owner, or the Surety above named, within ninety (90) days after such claimant did or performed the last of the materials for which said claim is made. * * *'

The Complaint alleged that written notice of default was furnished the Surety and 'Owner' under the bond within ninety (90) days after claimant furnished the last material for the construction in question.

The appellant contends essentially:

(1) That the Contractor was not a necessary party defendant because the liability was joint and several;

(2) That the statutory notice to the contractor was not necessary since the bond itself provided that notice to any two of the Principal, the Owner or the Surety would suffice and that thereby the statutory requirement of notice to the contractor was waived; and

(3) If the statutory requirement of notice to the Contractor was jurisdictional or a necessary condition precedent to suit against the surety, the claimant is entitled to recover on common law liability on the bond.

We will consider these points in reverse order.

With respect to the claim of common law contract obligation, the complaint shows it is being brought by virtue of the terms of F.S. Section 255.05, F.S.A. Under these circumstances the provisions of the statute become a part of the bond or the bond should be construed in the light of the statute. Collins v. National Fire Ins. Co. of Hartford, Fla.App.1958, 105 So.2d 190; City of Stewart for Use and Benefit of Florida East Coast R. Co. v. American Surety Co. of N.Y., 38 F.2d 193 (5th Cir. 1930); Glades County, Fla. v. Detroit Fidelity & Surety Co., 57 F.2d 449 (5th Cir. 1932). The right to sue the Surety for payment of labor and materials exists by virtue of the statute giving that right. The right of a materialman of a sub-contractor to sue was created by the statute. Under the circumstances there could...

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7 cases
  • American Home Assur. v. PLAZA MATERIALS
    • United States
    • Florida Supreme Court
    • July 7, 2005
    ...[section 255.05] become a part of the bond or the bond should be construed in light of the statute." Fuller Indus., Inc. v. R. Terry Blazier & Son, Inc., 188 So.2d 2, 3 (Fla. 2d DCA 1966). More generally, the public is on constructive notice of statutory requirements. See, e.g., Ellis v. St......
  • Harvesters Group, Inc. v. Westinghouse Elec. Corp.
    • United States
    • Florida District Court of Appeals
    • June 7, 1988
    ...of section 255.05(2). 2 W.G. Mills; School Bd. v. Fasano, Inc., 417 So.2d 1063 (Fla. 4th DCA 1982); Fuller Indus., Inc. v. R. Terry Blazier & Son, Inc., 188 So.2d 2 (Fla. 2d DCA), cert. denied, 194 So.2d 617 (Fla.1966); see Gergora v. R.L. Lapp Forming, Inc., 619 F.2d 387 (5th Cir.1980). Cf......
  • Gergora v. R. L. Lapp Forming, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • June 18, 1980
    ...is a strict condition precedent to the maintenance of an action on the bond by any supplier. Fuller Industries, Inc. v. R. Terry Blazier and Son, Inc., 188 So.2d 2 (Fla.Dist.Ct.App.1966). The plaintiffs delivered written notice within ninety days of the last day on which labor was performed......
  • Board of Public Instruction of Collier County v. Travelers Indem. Co.
    • United States
    • Florida District Court of Appeals
    • July 29, 1966
    ...solely by statute and did not exist at common law. Woodalls, Inc. v. Varn, Fla.App., 106 So.2d 634; Fuller Industries, Inc., etc. v. R. Terry Blazier & Son, Inc., Fla.App., 188 So.2d 2. We are faced with the fact the Defendant plead only the one year statute of limitations. It is elementary......
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