Johnson v. Dichiara
| Decision Date | 16 November 1955 |
| Citation | 84 So.2d 537 |
| Parties | C. Scott JOHNSON, Appellant, v. J. F. DICHIARA et al., Appellees. |
| Court | Florida Supreme Court |
Carroll W. Fussell, Bushnell, for appellant.
Campbell & Campbell, Jacksonville, for appellees.
Appellant-plaintiff brought suit to foreclose a mortgage and a claim of lien for money paid and labor and material furnished; defendants answered and counterclaimed. The counterclaim was defensive and also sought affirmative relief by way of damages. The final decree dismissed plaintiff's bill and provided for affirmative relief to the defendants whereupon plaintiff appealed. It appears that the chancellor erred in dismissing the bill and in providing for affirmative relief to the defendants.
The mortgage was executed to secure the payment of a note given for labor and material to be furnished by the plaintiff in the building of an ice plant, pursuant to a contract simultaneously executed. The defendants admit the nonpayment of any portion of the mortgage and claim that no installments are yet due because of the provisions of the contract; and the counterclaim is based on nonperformance of the contract by the plaintiff-appellant.
The basic and controlling factors are not in controversy. Any conflict in the testimony on other matters for present purposes may well be omitted.
A provision of the contract provides:
'Party of the first part agrees to construct and install said ice plant and equipment in a good and workmanlike fashion and agrees that upon installation said plant will function properly so as to produce 6 tons of ice daily.
'Payments on the above mortgage, while set to begin June 15, 1950, shall not being until 30 days after the plant is completed and in operation.
'Legal fees incident to clearing title and drawing contracts and other papers are to be paid by parties of second part.'
The construction and installation of the equipment was completed with the exception of a conveyor specified in contract and may be another item or two. The construction and installation have been substantially completed except as above stated and the plant has been delivered to the owners-defendants and operated by them for some time before the commencement of this suit.
The principal controversy is over the question of whether or not the contractor-plaintiff represented by the above quoted language that the plant would produce six tons of merchantable ice daily. There is some evidence to indicate that the plant may produce the six tons, when the controls are set for faster freezing; but then the ice is cracked and unmarketable. When the controls are set so as to produce marketable ice, it has produced only about three tons daily. The weight of the evidence is clear that the plant with the equipment provided will not produce six tons of marketable or merchantable ice.
The evidence shows that the defendants-owners were not experienced with ice plants and the inference may reasonably be drawn from the facts that the plaintiff knew that the ice was to be made for sale generally and not for a special purpose for which cracked ice would be satisfactory. The conclusion is that the implied representation of the plaintiff was that the plant would produce six tons of marketable ice daily, and it will not and never has.
The defendants do not seek rescission ab initio but cancellation in futuro as to defendants' obligations. Since no issue was raised by the pleadings in the court below as...
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Gosselin v. Better Homes, Inc.
...of repairs and to determine the mortgage indebtedness from the reasonable construction cost of the plaintiff's home. In Johnson v. Dichiara, 1956, Fla., 84 So.2d 537, the plaintiff-contractor brought suit to foreclose a mortgage executed to secure the payment of a note given for labor and m......
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City of Miami Beach v. Carner
...damages can only be recovered for partial breach. Restatement (Second) of Contracts Secs. 84, 243, 246, 247 (1981); see Johnson v. Dichiara, 84 So.2d 537 (Fla.1955). In this case, Carner-Mason claimed a total breach had occurred in August 1985 when the firm's principals decided the project ......
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Security and Inv. Corp. of the Palm Beaches v. Droege, 87-1423
...full and then, the mortgage should only be enforced pro tanto --the fair value of the benefit received by the mortgagor. Johnson v. Dichiara, 84 So.2d 537 (Fla.1955). The Droeges in fact received only $25,000 from Christiansen. Droege still has the right to sue Sziics for breach of contract......
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Oven Development Corp. v. Molisky, s. R--441
...Quality Plastering, Inc., (Fla.App.1971) 247 So.2d 72.2 A Bayshore Development Co. v. Bonfoey, 75 Fla. 455, 78 So. 507.3 Johnson v. Dichiara, (Fla.1956) 84 So.2d 537.4 Ray v. Dock and Marine Construction, Inc., (Fla.App.1966) 183 So.2d 237.5 Edgar v. Hosea, (Fla.App.1968) 210 So.2d 233, 234......