Hogue v. D.N. Morrison Const. Co., Inc. of Virginia

• Decision Date: 23 June 1933
• Citation: 156 So. 377,115 Fla. 293
• Parties: HOGUE v. D. N. MORRISON CONST. CO., Inc., OF VIRGINIA, et al.
• Court: Florida Supreme Court

156 So. 377

115 Fla. 293

HOGUE v. D. N. MORRISON CONST. CO., Inc., OF VIRGINIA, et al.

Florida Supreme Court, Division B.

June 23, 1933

On Rehearing July 3, 1934.

Rehearing Denied Sept. 13, 1934.

Separate suits by the D. N. Morrison Construction Company Incorporated, of Virginia, by Coley & Peterson, Incorporated of Virginia, by George Forrey and another, as trustees, and by the Bayshore Operating Company, against Robert C. Hogue and others. The suits were consolidated for trial. From the final decree rendered, as amended and modified, the defendant named appeals.

Decree affirmed.

ELLIS and BUFORD, JJ., dissenting. Appeal from Circuit Court, Dade County; Uly O. Thompson, judge.

COUNSEL

Miller & McKay, of Miami, for appellant.

A. M Reder, M. D. Price, C. W. Zaring, C. D. Benson, B. E. Carey Bart A. Riley, Hudson & Cason, and Carl T. Hoffman, all of Miami, for appellees.

OPINION

BUFORD Justice.

D. N. Morrison Construction Company, Incorporated, of Virginia, a corporation created and existing under the laws of the state of Virginia, filed suit in Dade county against Robert C. Hogue and others therein named. Coley & Peterson, Incorporated, of Virginia, a corporation created and existing under the laws of the state of Virginia, filed suit against Robert C. Hogue and others therein named. Each of these suits was instituted for the purpose of foreclosing a lien for labor and material alleged to have been furnished in the construction of a certain building.

George Forrey and Sol Meyer, as trustees, filed a suit to foreclose a mortgage on the lands on which the building involved in the other suit was located, which, of course, included mortgage on the building. Robert C. Hogue and others were made parties defendant.

Bayshore Operating Company, a corporation organized and existing under the laws of Florida, filed suit against Robert C. Hogue and others to foreclose a mortgage on the same property. Many other parties claiming an interest in the property or a lien thereon were made parties defendant in these suits. These suits were finally consolidated. Voluminous testimony was taken before the chancellor, and final decree was rendered. The decree awarded to D. N. Morrison Construction Company, Inc., of Virginia, a lien superior to all others for a stated sum. It next awarded to Coley & Peterson, Inc., of Virginia, a lien prior to all others except that of D. N. Morrison Construction Company, Inc., of Virginia, on the property involved. It is unnecessary for us to discuss other features of the decree.

Robert C. Hogue, the appellant here, in his amended answer to the amended bill of complaint of Coley & Peterson, Inc., of Virginia, and also in his amended answer to the amended bill of complaint exhibited by D. N. Morrison Construction Company, Inc., of Virginia, incorporated the following allegation:

'And this defendant says, further answering said bill of complaint, that the complainant is, and at all times herein referred to has been, a corporation in the State of Virginia, and in the entering into of the contract herein sought to be foreclosed and in performing such part of said contract as was performed by complainant, was doing business within the State of Florida in violation of the Statutes of the State of Florida, and did not qualify to do business in the State of Florida until long after the work for which a lien is herein sought to be foreclosed had been completed, by reason whereof complainant is not entitled to the benefit of the Statutes of the State of Florida giving a lien upon real estate for work done and materials furnished, and even though by reason of a saving clause of the Statutes relating to foreign corporations doing business in the State of Florida, complainant might have the right (which right this defendant does not in anywise concede or admit) to enforce his contract made while it was not qualified to do business in the State of Florida by qualifying thereafter, nevertheless the complainant cannot, while illegally doing business in the State of Florida, claim the benefit of a mechanic's or Materialman's lien created by the Statutes of the State of Florida.'

The record shows that each of the Virginia corporations was not authorized to transact business in this state as a corporation until after the completion of the work for which they each respectively claimed liens on the property. The record further shows that prior to the expiration of ninety days from the date of the completion of the work each corporation qualified under the statutes of Florida to do business in this state, and that notice of liens were filed subsequent to the qualification while other notices of liens had been filed prior to such qualification. The question was therefore squarely presented, and is presented here, as to whether or not a foreign corporation may come into the state of Florida and do business, that is, perform the work of construction of buildings or other structures, and by the performance of such construction work, while not qualified to do business as a corporation in this state, acquire statutory liens upon the property upon which the work is done and the materials are furnished.

Prior to the enactment of chapter 5717, Acts 1907, there was no inhibition against a foreign corporation doing business in this state. See Duke v. Taylor, 37 Fla. 64, 19 So. 172, 31 L. R. A. 484, 53 Am. St. Rep. 232; Indian River Mfg. Co. v. Wooten, 55 Fla. 745, 46 So. 185. But chapter 5717 provided a general prohibition against corporate recognition of unlicensed foreign corporations and made the acts of foreign corporations not qualified to do business in this state absolutely unlawful. See Commercial National Bank v. Jordan, 71 Fla. 566, 71 So. 760. Chapter 6876, Acts 1915, so modified the act 1907, supra, as to make the contracts of foreign corporations vaild but unenforceable until a permit to do business shall have been obtained. See Brecht v. Bur-Ne Co., 91 Fla. 345, 108 So. 173; Blackshear Mfg. Co. v. Sorey, 97 Fla. 437, 121 So. 103; Herbert H. Pape, Inc., v. Finch, 102 Fla. 425, 136 So. 496.

This modification, however, did not give foreign corporations not qualified to do business in this state any rights other than the right to enforce a contract after having qualified and the right to acquire, hold, and convey property. It accorded to such corporations no right which had been withheld from such corporations by the act of 1907, supra, to transact general business in this state, and neither did it accord to such corporations the right to acquire and enforce a lien for labor performed and materials furnished in the construction of the buildings or other structures which it performed or furnished in violation of the provisions of chapter 5717, Acts 1907, as amended and modified by chapter 6876, Acts 1915.

It may be conceded that under the provisions of these acts these foreign corporations may have had the right to enforce the provisions of a contract which they had entered into which contemplated the engaging of such corporations in business in this state in violation of these statutes. But these were not suits to enforce a contract. These were suits invoking the provisions of statutes creating statutory liens. The right to the lien does not rest in contract. It cannot be created by contract between the parties, under circumstances other than those contemplated by the statute. The lien is statutory, not contractual. Harper Lbr. & Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21; Drake Lbr. Co. v. Semple, 100 Fla. 1757, 1771, 130 So. 577, 75 A. L. R. 687.

The lien is acquired as between the owner and one in privity with the owner when the labor is performed or the materials furnished. Bowery v. Babbit, 99 Fla. 1151, 128 So. 801.

The record shows in this case that at the time the alleged labor was performed and the materials were alleged to have been furnished each corporation performed such labor and furnished such material in violation of the law of this state, and, having furnished such material and performed such labor as corporations in violation of the laws of this state, they were not in a position to acquire, and did not acquire, liens which are entirely creatures of the statutes of the state. It therefore follows that the decree of the chancellor adjudicating a lien in favor of these Virginia corporations was error. This does not mean that they may not each proceed against the defendants by suits based upon contract, which course they are allowed to pursue by statute.

The appellees, the two Virginia corporations, filed motion to dismiss the appeal, which was denied by this court on April 19, 1932. That motion has been argued in the briefs filed. The ground of the motion most earnestly contended for is that the cause should be dismissed because the appellant here took the appeal individually and did not make other parties standing with him on the same side of the docket in the court below coappellants, but made all other parties to the suits, both complainants and defendants, parties appellee here. This the appellant had a right to do. He is required to bring all parties at interest before the court below into this court, but in a chancery case it is immaterial whether they are brought here as appellants or appellees because in equity the rights of all parties may be separately adjudicated, regardless of whether they be appellants or appellees, or regardless of whether they be complainants or defendants in the court below, and the purpose for bringing the parties into this court is to have them where the judgments and decrees will be binding upon them. That purpose is served regardless of whether they appear on the record here as appellants or appellees.

There are many other questions...