Gulf Life Ins. Co. v. Hillsborough County

• Decision Date: 30 September 1935
• Citation: 129 Fla. 98,176 So. 72
• Parties: GULF LIFE INS. CO. v. HILLSBOROUGH COUNTY.
• Court: Florida Supreme Court

176 So. 72

129 Fla. 98

GULF LIFE INS. CO. v. HILLSBOROUGH COUNTY.

Florida Supreme Court, Division B.

September 30, 1935

On Rehearing July 31, 1937.

Further Rehearing Denied September 15, 1937.

Suit by the Gulf Life Insurance Company against Hillsborough County Florida. From a decree dismissing the bill, the plaintiff appeals.

Reversed.

See also, Webb v. Hillsborough County (Fla.) 175 So 874.

BROWN J., dissenting. Appeal from Circuit Court, Hillsborough County; L. L. Parks, judge.

COUNSEL

Knight, Thompson & Turner, of Tampa, Bedell & Bedell, of Jacksonville, A. G. Turner, or Tampa, and George C. Bedell, of Jacksonville, for appellant.

John B. Sutton, H. C. Tillman, and W. F. Himes, all of Tampa, for appellee.

Kay, Adams, Ragland & Kurz, Wm. E. Kay, and Thomas B. Adams, all of Jacksonville, amici curiae.

OPINION

TERRELL Justice.

This is a suit in equity to recover a balance due on certain certificates of indebtedness issued pursuant to chapter 9316, Acts 1923, Laws of Florida. The bill of complaint in substance alleges that in February, 1925, Hillsborough county entered into six contracts with J. W. Copeland to pave, grade, and curb designated roads; that said contracts were let to the lowest competitive bidder and the roads were completed and accepted by the county; that on October 27, 1925, the county issued to the contractor certificates of indebtedness dated September 28, 1925, in payment of the completion of said contracts; that said certificates of indebtedness were consecutively numbered, bore four installment coupons, and recited that they were issued pursuant to chapter 9316, Laws of Florida, which declares them to be a lien superior in dignity to all others except the lien for certain taxes on the lands described therein.

The bill further alleges that thereafter for a valuable consideration the contractor, J. W. Copeland, transferred and delivered to the plaintiff, appellant here, who is now the owner and holder thereof, the identical certificates described in the bill of complaint; that subsequent to said transfer on August 2, 1933, the Supreme Court of Florida, in Hillsborough County et al. v. Temple Terrace Assets Co., 111 Fla. 368, 149 So. 473, adjudged the said chapter 9316 to be invalid and not constitutionally enacted; that the Supreme Court of Florida did on November 30, 1923, in Moore v. Hillsborough County, 86 Fla. 514, 98 So. 505, refuse to hold said act invalid; that appellant was not advised of the invalidity of said act until the decision in Hillsborough County et al. v. Temple Terrace Assets Co., when there was then due on the principal and interest of said certificates the sum of $5,784.84.

It is further alleged in the bill that the plaintiff is the owner and holder of said certificates and has succeeded to all the right and equity of the contractor in them arising for doing the work and furnishing the materials for which they were issued, and that the work done and materials furnished by the contractor in pursuance of said six contracts were of the reasonable value of the aggregate sum of the principal and interest indicated in said certificates. It is also alleged that appellant did on May 4, 1934, prior to the institution of this suit, make demand on Hillsborough county to accept the surrender of said certificates or parts thereof and to pay appellant the balance due thereon with lawful interest.

The bill prays that defendant be required to accept the surrender of said certificates and to pay to the plaintiff the sum of $5,784.84, being the amount due thereon, with interest from the date of said certificates, September 28, 1935, and for such other relief as equity may require. A motion to dismiss the bill was granted, and this appeal is from that decree.

The main question with which we are confronted is whether or not Hillsborough county is liable for the payment of said certificates under the circumstances related and, if it is, whether the plaintiff should have proceeded by a suit in equity or by an action at law to recover.

The chancellor dismissed the bill of complaint, but with leave to the plaintiff to amend or recast its pleadings with such amendments as it deems proper to make and to conform to the practice on the law side of the court. Such a decree in effect relegated the plaintiff to his remedy at law.

Appellant contends that it should be permitted to recover in equity because the assignment of the certificates of indebtedness in the manner described operated as an equitable assignment of the right of the contractor to recover the reasonable value of the work done and materials furnished in pursuance of the contract in satisfaction of which said certificates were issued. Appellee, on the other hand, denies liability on any theory whatever, but contends that if liability does exist it must be determined by an action at law.

In support of its alleged right to recover in equity, appellant relies on Parkersburg v. Brown, 106 U.S. 487, 1 S.Ct. 442, 27 L.Ed. 238; Chelsea Savings Bank v. City of Ironwood, 130 F. 410, 66 C.C.A. 230; Goldman v. Murray, 164 Cal. 419, 129 P. 462; Hosmer v. True, 19 Barb. (N.Y.) 106; R. M. Grant & Co. v. City of Lake Worth, Florida (C.C.A.) 40 F. (2d) 579.

We have examined these cases and do not think they rule the case at bar. The dominant question in them was one primarily of equitable cognizance, the amount of the claim being an incident to equitable relief. Such claims may be enforced in equity in this state, but the claim in question does not fall in this class. It is a fact further that these cases arise in jurisdictions that know no distinction between common-law and equity and were decided without reference to such distinction. In Florida they would have been brought on the equity side of the docket because of their equitable character.

The transfer of the certificates to appellant is shown to have no equitable significance whatever. When chapter 9316, Acts 1923, was decreed to be invalid, the certificates and contract made in pursuance of it were also vitiated. The certificates being void on their face, they could incur no hazard to the holder, neither had he any right under his contract. There was consequently no basis for canceling either. In such a situation appellant had no recourse except a right of recovery on an implied contract for the value of the labor and material furnished of such part of it as is now being enjoyed by the county. Under our practice such a claim is one peculiarly of common-law cognizance, being nothing more than a money demand for labor and materials furnished. Central Florida Lumber Co. v. Taylor-Moore Syndicate (C.C.A.) 51 F. (2d) 1. See, also, Highway Engineering & Const. Co. v. Hillsborough County (C.C.A.) 67 F. (2d) 439.

The rule of liability of the county under the facts as related in this case was defined in Harwell v. Hillsborough County, 111 Fla. 361, 149 So. 547, 548, where we held:

'A majority of the court hold that under the authorities thereinafter cited where a county enters into a contract for work of a public character which it is fully authorized to pay for, and the contract has been executed and performed according to its terms, and the county has acknowledged its indebtedness under the contract by issuing its certificates of indebtedness to pay for the work done and material furnished, and is actually enjoying the fruits of the contractor's expenditures for labor and materials, which expenditures were made in good faith on the strength of the county's contract, that included an

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