Houdaille-Duval-Wright Co. v. Charldon Const. Co.

• Decision Date: 01 August 1972
• Docket Number: No. 71--956,HOUDAILLE-DUVAL-WRIGHT,71--956
• Citation: 266 So.2d 106
• Parties: COMPANY, a division of Houdaille Industries, Inc., Appellant, v. CHARLDON CONSTRUCTION COMPANY et al., Appellees.
• Court: Florida District Court of Appeals

Page 106

266 So.2d 106

HOUDAILLE-DUVAL-WRIGHT COMPANY, a division of Houdaille Industries, Inc., Appellant, v. CHARLDON CONSTRUCTION COMPANY et al., Appellees.

No. 71--956.

District Court of Appeal of Florida, Third District.

Aug. 1, 1972.

Rehearing Denied Sept. 22, 1972.

Rogers, Morris & Ziegler, Fort Lauderdale, for appellant.

Wepman & Wepman, and Hugh F. Quinn III, Miami, for appellees.

Before CHARLES CARROLL, HENDRY and HAVERFIELD, JJ.

PER CURIAM.

Appellant, the plaintiff below, as a subcontractor on an apartment building project, fabricated and delivered concrete roof spans which were incorporated in the building. Claiming a balance of $36,872.96 to be due, of its subcontract price of $86,435.19, the plaintiff filed an action for foreclosure of a lien therefor against the owners and the surety on a bond to which its lien had been transferred, and joined the contractor as a defendant. The plaintiff alleged empoyment of attorneys to prosecute the action and its obligation to pay them reasonable attorney fees, for which plaintiff also sought recovery.

The defendant owners answered, averring they were without knowledge as to the allegations of the complaint and demanding strict proof thereof. The defendant contractor did likewise, and incorporated in his answer a counterclaim alleging delay in delivery of the materials and claiming damages therefor in the amount of $90,700.

When the cause came to trial, the right of the plaintiff to its claimed lien for the amount sought was not further contested and was conceded. On trial of the issues on the counterclaim the court found, in favor of the counterclaimant, that there was a 33-day delay in delivery by plaintiff, and allowed the counterclaimant $43,049.60 damages therefor. Judgment was entered in favor of the counterclaimant against the plaintiff for $6,176.64, representing the excess of its damages over the amount due the plaintiff on its lien claim. Thereupon the judgment discharged the principal and surety on the lien bond. By a later order the court awarded $8,500 to the counterclaimant (contractor) as fees for the services of its attorneys, and $853.59 costs, for which a further judgment was entered in favor of the contractor against the plaintiff for the aggregate sum of $9,353.59.

This appeal by the plaintiff presents a number of contentions, which have been considered by this court in the light of the record and briefs. We find no sufficient reason in law has been shown to disturb the holding of the trial court regarding the delay occasioned by the appellant, and that the counterclaimant was entitled to damages therefor. We find merit in appellant's contention that the damages awarded to the contractor on the counterclaim were excessive, based on the record. The damage figure of $44,549.60 fixed by the trial court was the gross payroll of the contractor (at $1,340 per day) for the period of delay. The principal argument of the appellant in support of its contention that the damages were excessive is that it was shown in evidence that the contractor's employees on the job were productively engaged on the project a substantial part of the period in which delivery of materials by the plaintiff was delayed. Examination of the record shows it sustains the appellant in that regard. Also, as pointed out by appellant, it appears that there was not a total absence of delivery during the 33-day delay period; that some of such materials were delivered and...