Gay v. Southern Builders, Inc.

• Decision Date: 21 July 1953
• Citation: 66 So.2d 499
• Parties: GAY v. SOUTHERN BUILDERS, Inc.
• Court: Florida Supreme Court

Page 499

66 So.2d 499

GAY v. SOUTHERN BUILDERS, Inc.

Supreme Court of Florida, Special Division A.

July 21, 1953.

Richard W. Ervin, Atty. Gen., Fred M. Burns, Asst. Atty. Gen., and Lewis H. Tribble, Tallahassee, for appellant.

J. Lewis Hall and W. K. Whitfield, Tallahassee, for appellee.

MATHEWS, Justice.

This is an appeal from a final judgment entered by the Judge of the Circuit Court of Leon County, Florida.

It appears that Southern Builders, Inc., the appellee, entered into a contract with the Board of Commissioners of State Institutions of the State of Florida, whereby the appellee agreed to construct an Infirmary at the State Hospital in Chattahoochee, Florida, and a new wing on the State Capitol Building. Certain differences arose between the parties whereby the Board contended the building was not constructed in accordance with the plans and specifications, and the appellee contended that it was entitled to payment under the contract, and also damages for breach of the contract.

The contractor eventually filed a claim with and against the Board setting forth his claims for various items called for in the contract, which had not been paid and various items of damage because the contract had not been complied with by the Board. Thereafter, three persons were named and were called 'arbitrators.' They held hearings and investigations as to the contentions of the parties and made their report to the Board together with supporting data. Thereafter, at a meeting of the Board on July 20, 1948, the Minutes of the Board show that there was a general discussion of the matter and after such discussion, motion was made by the State Treasurer, and seconded by the Secretary of State, which was 'unanimously adopted', that the report of the Arbitration be approved for final payment. It appears that this action on the part of the Board was not only unanimous, but also was made voluntarily. It does not appear anywhere in the record that they adopted the report because the members thought they were bound by it.

It is unnecessary for us to discuss or decide in this opinion the binding force and effect of an arbitration agreement and we do not decide that question. The Board adopted the report of the three men appointed.

The Comptroller paid all of the amounts set forth as approved by the Board, except $25,608.82. The Comptroller decided that this amount was for tort arising out of breach of contract and he refused to pay same.

In his original claim after the contract was breached, the contractor claimed such damages not in tort but for breach of contract. We have repeatedly held that where damages result from a breach of contract, the party may make his claim based upon such breach of contract even though a tort may have been committed. In the case of Holbrook v. City of Sarasota, Fla., 58 So.2d 862, 864, this Court said:

'Even though it may have been proper, if plaintiff so desired, to have brought a tort action, they elected not to do so and brought a suit based upon the breach of a contract. The mere fact that breach of a contract may be a wrong, does not compel a party to bring his action in tort. This action is brought on contract even though it may have been brought in tort. The courts are open for the parties to...