Harper Lumber & Mfg. Co. v. Teate

• Decision Date: 07 December 1929
• Parties: HARPER LUMBER & MFG. CO. v. TEATE et al.
• Court: Florida Supreme Court

125 So. 21

98 Fla. 1055

HARPER LUMBER & MFG. CO. v. TEATE et al.

Florida Supreme Court, Division B.

December 7, 1929

Suit by the Harper Lumber & Manufacturing Company against C. O. Teate and others. From an order sustaining a general demurrer plaintiff appeals. Reversed and remanded.

Syllabus by the Court

SYLLABUS

Materialman furnishing materials to contractor, relying on owner's promise to pay, is in 'privity' with owner, entitled to lien, though giving no notice to owner (Comp. Gen. Laws 1927, §§ 5380, 5381). If a materialman, upon the request or by the authority of the owner, furnishes material to a contractor in reliance upon the promise of the owner, express or implied, to pay for it, credit being extended to the owner, so that the owner becomes a primary debtor and not a mere surety, the materialman is in privity with the owner within the purview of the lien statutes, and is entitled to a lien for the full amount of the debt, notwithstanding he gave no notice to the owner, as required by section 5381, Comp Gen. Laws 1927, as to persons not in privity with the owner.

Owner's promise to pay for materials previously furnished contractor did not create 'privity' with materialman so as to dispense with notice (Comp. Gen. Laws 1927, §§ 5380, 5381). Privity with the owner, within the meaning of section 5380 Comp. Gen. Laws 1927, exists only when the contractor, in furnishing the materials or performing the labor, has acted on the owner's obligation, express or implied, to pay therefor as a primary debtor. A subsequent promise by the owner to pay for materials previously furnished to the contractor, and upon the contractor's credit, cannot operate retrospectively to create between the owner and materialman a state of privity within the contemplation of the lien statutes so as to dispense with the necessity of a notice from the lien claimant to the owner, as required by the statute relating to creditors not in privity with the owner.

Materialman's or laborer's lien is statutory, and cannot be created by contract other than as contemplated by statute. A materialman's or laborer's lien is statutory, not contractual. The right to the lien is not created by contract between the parties, but by operation of the statute upon the relationship into which the parties have brought themselves. Such a lien cannot be created by contract between the parties under circumstances other than those contemplated by the statutes.

Notice to owner by lien claimant must substantially comply with statute by stating contractor or other person 'is indebted' to claimant (Comp. Gen. Laws 1927, § 5381). The notice required by section 5381, Comp. Gen. Laws 1927, to be given to an owner by a lien claimant, is not required to follow the precise phraseology of the statute, but there must be at least a substantial compliance therewith, by the use of language of equivalent import, in stating that the contractor or other person to whom the materials were furnished 'is indebted' to the claimant in a stated amount, or the notice is fatally defective.

Notice to owner that contractor or other person is indebted to lien claimant for materials furnished must state debtor's identity (Comp. Gen. Laws 1927, § 5381). In order to comply with section 5381, Comp. Gen. Laws 1927, requiring a lien claimant to deliver to the owner a notice that the contractor or other person to whom materials had been furnished 'is indebted' to the person furnishing the materials in the sum stated in the notice, the identity of the debtor must appear from the notice.

Two separate and unrelated notices served on owner by lien claimant for same account cannot be considered together in determining sufficiency of notice (Comp. Gen. Laws 1927, § 5381). When a lien claimant, not in privity with the owner serves upon the owner two separate and unrelated notices claiming a lien for the same account, each notice being independent of and without reference to the other, so that they cannot be fairly construed as one notice, the two notices cannot be considered together for the purpose of determining the sufficiency of notice to hold a lien, but each must stand on its own merits, and the lien will not exist, unless one of the notices is sufficient in itself.

Notice to owner required of lien claimant not in privity with owner may be waived by owner (Comp. Gen. Laws 1927, § 5381). The notice to the owner required by section 5381, Comp. Gen. Laws 1927, is for the benefit and protection of the owner. It is a requirement that, in so far as his own rights are concerned, the owner may waive, and with reference to which he may estop himself.

Owner, by promising to withhold funds from contractor and pay them to lien claimant, waived defect in form of notice given by lien claimant not in privity with owner (Comp. Gen. Laws 1927, § 5381). When a lien claimant who has furnished materials to a general contractor, and who therefore is not in privity, with the owner, delivers to the owner within the time prescribed by statute a purported but defective notice that he has furnished materials in a stated amount in the construction of a described building on the owner's land, and that there is a balance in a named sum due and unpaid therefor, the purported notice, however, not identifying the debtor or the person to whom the materials were furnished, and requests the owner to withhold from the amount he then owes the contractor and to pay the lien claimant the amount stated in the purported notice, and the owner, which knowledge of such facts, not merely remains silent, but expressly promises to withhold the funds from the contractor and pay the same to the lien claimant, the owner, as to his own rights, thereby waives any defects in the form of the notice, and estops himself to thereafter deny that the notice is sufficient in form to bind him.

Appeal from Circuit Court, Sarasota County; Paul C. albritton, judge.

COUNSEL

Cassels & Trinkle, of Plant City, and Whitaker, Himes & Whitaker, of Tampa, for appellant.

Burket & Fish and F. W. Dart, all of Sarasota, for appellees.

OPINION

STRUM J.

This is a suit in equity to enforce a materialman's lien against real property. The appeal is from an order sustaining a general demurrer, interposed by the owner, to the fifth amended bill of complaint.

The amended bill alleges in substance that the defendant C. O. Teate is the owner of the real property in question; that Teate employed Carman Company as general contractor to construct a building on said land; that Carman Company agreed with Teate to furnish materials to be used in the construction of said building, for which Teate agreed to pay Carman Company; that, after the agreement was entered into between Teate as owner and Carman Company as contractor, the said Carman Company, on or about July 30, 1924, entered into an agreement with complainant, the latter a dealer in building materials, whereby complainant agreed to furnish Carman Company the materials with which to construct said building, Carman Company agreeing to pay complainant the reasonable value thereof; that said materials were furnished by complainant and used in the construction of said building; that there is due to complainant and unpaid the sum of $19,485.57, on account of materials so furnished; that G. L. Miller & Co., one of the defendants, holds a mortgage on said premises, executed by Teate, the owner, while said building was under construction, to secure the principal sum of $150,000, the proceeds of which mortgage, by agreement with Teate, the mortgagor, were being disbursed by Miller & Co. directly to the contractor, Carman Company, as the work progressed.

The amended bill further alleges:

'Your orator further represents that the defendant, C. O. Teate, had notice that your orator was furnishing the said Carman Company with the materials used in the construction of the said building, and that on or about the 26th day of November, A. D. 1924, after the said building was almost completed and while more than $19,485.57 was yet due and payable from the said defendant, C. O. Teate, through the G. L. Miller Bond & Mortgage Company, to the Carman Company, for the construction of the said building, your orator gave written notice to the said C. O. Teate that the said Carman Company was indebted to your orator for the materials used in the sum of $19,485.57, by writing a letter to said C. O. Teate as follows:

"November 26, 1924.

"C. O. Teate, G. L. Miller & Co., Atlanta, Georgia. Gentlemen: Please take notice that the Harper Lumber & Mfg. Company, a corporation of Plant City, Florida, claim a lien over lots 1, 2 and 6 of the Subdivision of Lot 36 and a fraction of lots 38 and 40 of Block 'B' of the Plat of Sarasota County, Florida, for $19,485.57 for materials furnished in the building of the Frances Carlton Apartment House on the above said property, which materials were furnished at the request of the Carman Company, contractors for said building, of Tampa, Florida.

"Attorney for Harper Lumber & Mfg. Company.'

'And by delivery on or about November 26, 1924, to the said C. O. Teate of a copy of the Notice of Lien, which is attached to the original bill of complaint and marked Exhibit B, and requested the defendant, C. O. Teate, to withhold from the amount, he, through the G. L. Miller Bond & Mortgage Company, then owed the said Carman Company, an amount sufficient to cover the indebtedness from the said Carman Company to your orator, and to pay the same; that the said C. O. Teate agreed to and assented to your orator's request and promised to withhold and pay the same to your orator upon the conditions above set forth.'

Exhibit B to the original bill of complaint, referred to in the last-quoted allegations of...