Harwell v. Hillsborough County

• Decision Date: 12 July 1933
• Citation: 149 So. 547,111 Fla. 361
• Parties: HARWELL v. HILLSBOROUGH COUNTY.
• Court: Florida Supreme Court

149 So. 547

111 Fla. 361

HARWELL v. HILLSBOROUGH COUNTY.

Florida Supreme Court

July 12, 1933

En Banc.

Error to Circuit Court, Hillsborough County; F. M. Robles, Judge.

Suit by W. L. Harwell against Hillsborough County. Judgment for defendant, and plaintiff brings error.

Reversed as to the third count of plaintiff's declaration, and remanded, with leave to amend and directions for further proceedings.

COUNSEL Hampton, Bull & Crom, of Tampa, for plaintiff in error.

Sutton Tillman & Reeves, of Tampa, for defendant in error.

F. P Fleming, of Jacksonville, amicus curiae.

OPINION

PER CURIAM.

The Legislature of 1925 enacted chapter 10145, Acts of 1925, Laws of Florida, authorizing county commissioners in counties of not less than 125,000 population, on petition of two-thirds of the abutting property owners outside of a municipality, to pave, grade, or curb any highway in said county and assess the entire cost of such paving, grading, or curbing to the abutting property, in proportion to front footage; such cost to be evidenced by certificates of indebtedness issued by the county commissioners against each parcel or tract of land separately.

Hillsborough county, the defendant in error herein, entered into a contract with plaintiff in error, W. L. Harwell, by which the latter was to pave a certain road in the county. The contract was made under the provisions of chapter 10145, Laws of 1925. Under the contract, and in accordance with the requirements of the statute, plaintiff was to be paid for his work in certificates of indebtedness representing liens upon the abutting property to the extent of the benefit thereto.

It is alleged that plaintiff in error performed his part of the contract and on May 27, 1927, the county issued to him certificates of indebtedness in payment for his work.

After the maturity of the first installment due upon the certificates, three owners of abutting property filed suit in equity to restrain the enforcement of the certificates issued against their lots and held by plaintiff, on the ground that the certificates were invalid. Plaintiff and Hillsborough county were made parties defendant to the suit. A demurrer to the bill of complaint was overruled and on appeal that decision affirmed by this court. Hillsborough County v Jeffords, 101 Fla. 654, 126 So. 373, 136 So. 398.

On May 27, 1929, a final decree in the suit was entered by Judge Robles, of the circuit court of Hillsborough county declaring the certificates against the lots owned by complainants to be invalid, canceling them as clouds upon the title to the property, and restraining their enforcement by either of the defendants. The ground upon which the certificates were declared to be invalid was that the petition by the abutting property owners to the county, to have the paving done, was not signed by the owners of two-thirds of the abutting property, as required by chapter 10145, Laws of 1925. Chapter 12208, Acts of 1927, was an attempt to remove the last-mentioned objection by a statutory validation of the certificates.

On April 18, 1930, plaintiff filed a claim against the county for the injury resulting to him by reason of the county's failure to deliver to him valid certificates of indebtedness against the property owned by the complainants in the equity suit. This claim was rejucted by the county, and on April 24, 1930, plaintiff filed this suit to recover from the county the face value of these certificates.

The declaration was in three counts, the first two sounding in tort for the breach of an alleged duty on the part of Hillsborough county to deliver for the work done, valid statutory certificates enforceable against the abutting properties for the recovery of the cost of the work done and materials furnished. The third count of the deciaration purported to be one in assumpsit based upon an implied contract to pay on a quantum meruit basis for the work actually done for which the county obtained a county benefit.

Defendant Hillsborough county demurred to the declaration and its demurrer was sustained by the circuit judge. Final judgment for defendant was entered on this demurrer and plaintiff below has sued out writ of error to this court from the final judgment thus entered.

The law is well settled in this state that recovery cannot be had against a county in a tort action such as purported to be set up in the first two counts of the declaration, so the county's demurrer to those counts was properly sustained. Keggin v. Hillsborough County, 71 Fla. 356, 71 So. 372; Arundel Corporation v. Griffin, 89 Fla. 128, 103 So. 422.

As to the third count of the declaration, a majority of the court are of the opinion that the circuit judge properly sustained a demurrer to that count because of the apparent repugnancy in its allegations as to whether it purported to set up a quantum meruit claim for recovery of the value of the work, labor, and materials furnished, or purported to rely on an implied promise to pay the face amount of the certificates of indebtedness per se, as on an implied liability for the amount represented by the face amount of such certificates in view of the other circumstances alleged.

The circuit judge did not state upon what particular grounds, if any, he sustained the demurrer to the third count, although a statute requires him to do so. See section 4310, Comp. Gen. Laws, section 2644, Rev. Gen. St. We must therefore assume that he sustained the demurrer on the broad ground that no liability whatsoever could be legally deduced on any theory from the allegations of this third count.

A majority of the court hold that under the authorities hereinafter 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...