Hillsborough County v. Highway Engineering & Const. Co., Inc.

• Decision Date: 22 November 1940
• Citation: 145 Fla. 83,199 So. 499
• Parties: HILLSBOROUGH COUNTY v. HIGHWAY ENGINEERING & CONSTRUCTION CO., Inc. (WOODMONT AVE.).
• Court: Florida Supreme Court

199 So. 499

145 Fla. 83

HILLSBOROUGH COUNTY v. HIGHWAY ENGINEERING & CONSTRUCTION CO., Inc. (WOODMONT AVE.).

Florida Supreme Court

November 22, 1940

Rehearing Denied Jan. 15, 1941.

En Banc.

Error to Circuit Court, Hillsborough County; L. L. Parks, Judge.

Action by the Highway Engineering & Construction Company Incorporated, against Hillsborough County, a political subdivision of the state of Florida to recover on a quantum meruit basis for the paving of a street. To review a judgment for the plaintiff, defendant brings error, and plaintiff presented cross-assignments of error.

Reversed and rendered.

BROWN J., dissenting.

COUNSEL

John W. Cone, Henry C. Tillman, and W. F. Himes, all of Tampa, for plaintiff in error.

Knight & Thompson and John Bell, all of Tampa, and Bedell & Bedell anbd George C. Bedell, all of Jacksonville, for defendant in error.

F. P Fleming and J. S. Diver, both of Jacksonville, amici curiae.

OPINION

THOMAS Justice.

Two companion cases are here for our consideration, this one involving Woodmont Avenue, and the other, 199 So. 506, Henderson Boulevard, both situate in Hillsborough County.

On October, 1937, the chancellor entered his order transferring this cause from the chancery to the common law court in obedience to the mandate of this court, issued in the case of Highway Engineering & Construction Company, Inc., a Corporation, Appellant, v. Hillsborough County, Florida, Appellee, 129 Fla. 106, 176 So. 76, which reversed the judgment of the court on authority of, and under the same conditions set out in, Gulf Life Insurance Company v. Hillsborough County, 129 Fla. 98, 176 So. 72, 75, where appellant was given the privilege to '* * * reform or recast its pleadings so that the issues [might] be made up and the cause proceed to judgment consistent with the views as expressed * * *.' in that opinion. The claim of the plaintiff in error, as originally set out in the bill of complaint reviewed on the former appeal, was for a balance of $4,181.05, sought in exchange for the surrender of certain certificates delivered by the defendant in error to cover the cost of paving Woodmont Avenue. Basis for this claim as reflected in the bill of complaint, was that in the year 1925 the county entered into a contract with the engineering company whereby the latter was to furnish all labor and materials necessary to the grading, paving and improving of the street, and in return therefor, receive certificates of indebtedness, dated May 14, 1926, to cover the cost amounting to $14,735.23; that the contract was entirely performed by the engineering company, and the certificates delivered by the county as agreed; that the certificates were issued under Chapter 9316, Laws of Florida, Acts of 1923, and that at the time of the contract the chapter authorizing the indebtedness had been declared constitutional in Earle G. Moore v. Hillsborough County, et al., 86 Fla. 514, 98 So. 505. It was further alleged that eventually, $10,554.18 was paid on the certificates, reducing the amount due to $4,181.05; that thereafter, on August 2, 1933, it was determined by the Supreme Court of Florida that Chapter 9316, supra, was not properly passed by the Legislature, and was therefore void. Hillsborough County et al. v. Temple Terrace Assets Co., Inc., 111 Fla. 368, 149 So. 473.

Following the order of the chancellor, founded on the mandate of the Supreme Court, an amended declaration was filed seeking recovery of the balance we have stated on a quantum meruit basis. Upon the issues joined the trial proceeded, and at its conclusion the court granted a motion of the plaintiff for an instructed verdict in its favor for $2,635.72.

To dispose of the questions posed by the plaintiff in error, it does not appear necessary to analyze the pleas, replications and rejoinders.

It is first complained that the court infringed on the province of the jury in instructing a verdict in favor of the plaintiff inasmuch as the action was not founded upon a bond, note or express contract for the payment of a certain sum, the amount claimed to be due was never admitted or liquidated, therefore, the propriety of the plaintiff's claim and the amount of his recovery, if any, should have been left to the determination of the jury. While it is true that 'The proper practice in an action at law, where testimony is necessary for the ascertainment of damages, is to have the same assessed by a jury' 'Parker v. Dekle, 46 Fla. 452, 35 So. 4, 5) there is no invasion by a court of the province of the jury if, after hearing all of the testimony in the case, there is uncontradicted evidence to support the plaintiff's position, and any other verdict rendered would, in his opinion of the controlling law, have to be set aside upon motion for new trial. It is likewise sound procedure for the jury to charge the jury the amount the verdict should recite, if it is shown by competent and uncontradicted evidence. Our study of the manner in which the accounts were kept by the defendant in error, and preciseness with which the costs of the improvement of the street were determined, and our conviction that the plaintiff in error failed to show discrepancy in the items or to impeach the testimony of their correctness, convinces us that the judge was justified, when he decided the plaintiff should recover, which we will discuss later in this opinion, in going further and telling the jury the amount of that recovery. In this case, if the testimony is studied in the light of the former decisions of the court, to which we have referred, and the pleadings about which the evidence was woven, it leads to the inevitable conclusion that the plaintiff was relegated to his remedy in the common law court for recovery on a quantum meruit basis, and that it established the fair price of the materials it furnished and the labor it performed in the construction of the paving, in accordance with the specifications and the contract, and that any other verdict in any other amount would hardly have conformed to the pleadings, the proof and the prior decisions of this court.

Next, it is said that the measure of the plaintiff's recovery was the reasonable value of the labor performed and the market value of the materials furnished. It would be difficult to conceive of a fairer method of computing the actual cost of the labor and materials than that described in the testimony presented in this case. Comprehensive data were given of the various items and the manner of allocating the proportionate share to this particular street in a subdivision where it and forty-three others were improved. It was established, without contradiction, that total amounts of sand, asphalt, dust, grading and overhead expense were figured on a yardage basis, and it seems but practical that in this fashion the proportionate cost of the improvement of the particular street with which we are dealing was necessarily less than had it been the only one improved, for it is obvious that in this manner the pro rata share of overhead expense would be considerably less in a project involving the improvement of forty-four streets than had but one been under construction, and that there would be an advantage, too, because of the lower proportionate cost of materials purchased in large quantities.

An attempt was made on the part of the plaintiff in error to inject into the cause the matter of estoppel on the part of property owners, and we are asked the question, whether they were estopped to question the validity of assessments because of the unconstitutionality of the statute under which the county was proceeding, where they knew that the county had contracted for the road improvement and that the entire cost would be assessed against the abutting property and certificates issued in payment of the improvement.

We are not able to see the relevancy of that doctrine to this litigation. The county may not, in this suit against it by the contractor, resort to the defense of estoppel which might be available to it in a controversy with the property owners who are not parties here. An estoppel even if applicable in a suit between the county and the property owners, certainly could not be invoked here where the latter are not parties. This is not an action based on the certificates which were held invalid. The court gave the contractor the opportunity to renew his quest for relief on the basis of the merit of the work done and the materials furnished. This action is entirely beside one on the certificates. As was stated in Webb v. Hillsborough County, 128 Fla. 471, 175 So. 874, the rule theretofore announced, Harwell v. Hillsborough County, 111 Fla. 361, 149 So. 547, that recovery might be obtained despite the invalidity of the certificates evidencing the debt is not based on the contract or the certificates, but upon the expenditure of labor and materials by the construction contractor on a public project the county was authorized to have made and the fruits of which improvement the public was enjoying. For these reasons we fail to see how the position of the property owner in his failure to challenge the validity of the certificates, after so many years had passed, could possibly have been available to the plaintiff in error in this suit.

The defendant attempted to present the defense to each count of the declaration that the certificates delivered to the plaintiff were validated and made effective assessments by Chapter 12207, Acts of 1927, and a demurrer to the pleas was sustained. This action on the part of the trial court is assigned as error. An ex amination of the opinion in the case of Hillsborough County et al. v. Temple Terrace Assets Co., Inc., supra, [111 Fla. 368, 149 So. 476] will desclose this language:

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