Kidd v. City of Jacksonville
| Decision Date | 01 March 1926 |
| Citation | 107 So. 677,91 Fla. 380 |
| Parties | KIDD et al. v. CITY OF JACKSONVILLE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Action by the City of Jacksonville, for the use and benefit of the Hirsch Lumber Company, against J. A. Kidd and another. Judgment for plaintiff, and defendants bring error.
Reversed.
Syllabus by the Court
Declaration must state distinctly performance of every act by plaintiff essential to his right of recovery. The declaration must state distinctly the performance of every act on the part of the plaintiff which is essential to the plaintiff's right of recovery.
Obligee could not recover, against surety on contractor's bond for materials which did not comply with specifications referred to in contract and bond. The plaintiff should not recover, against the surety in an action based upon the bond for materials furnished, which materials did not comply with the specifications referred to in the contract, which specifications by reference constituted a part of the bond.
Demurrer should not have been sustained to plea which denied performance by plaintiff of condition precedent and tendered material issue of fact not presented by plea of general issue. Demurrer should not have been sustained to a plea which denied performance by plaintiff of a condition precedent and tendered a material issue of fact, which issue of fact was not presented by a plea of general issue.
Giles J. Patterson, of Jacksonville, and V. C Giblin, of Okeechokee, for plaintiffs in error.
Marks, Marks & Holt, of Jacksonville, for defendant in error.
This action was brought in the circuit court of Duval county in the name of the city of Jacksonville, a municipal corporation, for the use and benefit of Hirsch Lumber Company, a corporation, against J. A. Kidd and Southern Surety Company, a corporation. The action was based upon the bond of J. A. Kidd as principal and Southern Surety Company as surety. A copy of the bond was attached to the declaration and was in words and figures as follows, to wit:
'The condition of this obligation is such that whereas, the said principal has entered into a certain contract bearing date the 7th day of November, A. D. 1922, with the said city of Jacksonville, acting according to law through its city commission, to do all the work and furnish all the materials requisite to constructing wooden relieving platform, anchor pile system and fender pile system, and to do all the work and furnish all the materials requisite to the construction of a steel bulkhead wall at the Municipal Docks, in compliance with all the terms, covenants, conditions, specifications and stipulations thereof, which said contract is hereby referred to and made a part hereof to the same extent as if fully set out herein:
'Now, therefore, if the said principal shall well, truly and faithfully comply with all the terms, covenants, conditions, stipulations, and specifications of said contract on his part to be kept and performed, according to the tenor of said contract, and if said principal shall promptly make payments to all persons supplying him with labor and materials in the prosecution of the work provided for in said contract, then this obligation to be null and void, else to remain in full force and effect.
'In witness whereof the said principal and the said surety have duly executed this bond the day and year first above written.'
There was also attached to the declaration a copy of the contract which was referred to and made a part of the conditions of the bond, which was in words and figures as follows, to wit:
'This contract, executed this 4th day of December, A. D. 1922, by and between the city of Jacksonville, a municipal corporation in Duval county, Florida, acting according to law through its city commission, the former being hereinafter called the 'city' and the latter the 'commission,' party of the first part, and J. A. Kidd, of the city of Jacksonville, Duval County, Florida, hereinafter called the 'contractor,' party of the second part, witnesseth:
'That for the consideration and under the provisions hereinafter stated and referred to, moving from each to the other of said parties respectively, it is mutually understood and agreed as follows:
'(1) The contractor is the lowest and best responsible bidder for furnishing materials for and constructing wooden relieving platform, anchor pile system and fender pile system, and for the construction of a steel bulkhead wall at the Municipal Docks.
'(2) The contractor will do the work required to be done and will furnish the materials required to be furnished on said wooden relieving platform, anchor pile system, fender pile system and steel bulkhead wall in accordance with the proposal for bids by the city commission, at the price and on the terms contained in the contractor's bid for the doing of said work and in strict compliance with the plans and specifications for said work, including the general conditions, now on file in the office of the city commission, all of which are specially referred to and made a part of this contract to the same extent as if fully set out herein.
'(3) On the faithful performance of this contract by the contractor, the city will pay the contractor in accordance with the terms and on the conditions stated in said proposal, bid, plans and specifications.
'(4) No extra work shall be required or authorized which would make the total cost for said work in excess of the bid of the contractor unless the same shall be first approved by the city commission.
'In witness whereof the parties hereto have duly executed this contract in...
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