Kidd v. City of Jacksonville

• Decision Date: 02 March 1929
• Parties: KIDD et al. v. CITY OF JACKSONVILLE, for Use and Benefit of HIRSCH LUMBER CO.
• Court: Florida Supreme Court

120 So. 556

97 Fla. 297

KIDD et al. v. CITY OF JACKSONVILLE, for Use and Benefit of HIRSCH LUMBER CO.

Florida Supreme Court, Division A.

March 2, 1929

Error to Circuit Court, Duval County; De Witt T. Gray, Judge.

Action by the City of Jacksonville, a municipal corporation, 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

SYLLABUS

Demurrer to surety's plea that materials supplied to contractor by plaintiff were not used in work held properly sustained, and demurrer to declaration properly overruled, in view of exhibit. In action on municipal contractor's bond demurrer to surety's plea that lumber and materials alleged to have been supplied by plaintiff, were not used by contractor in prosecution of work, held properly sustained and demurrer to declaration on such ground properly overruled, in view of exhibit purporting to be copy of advertisement and specifications for furnishing of materials for construction of stated structures.

State adopted federal Supreme Court's construction of federal statute, from which state act was copied, so far as harmonious with state's general legislation on subject (Rev. Gen. St. 1920, § 3533; Act Cong. Aug. 13, 1894 [28 Stat. 278]). In adopting Acts 1915, c. 6867 (Rev. Gen. St. 1920, § 3533), which was copied from Act Cong. Aug. 13, 1894 (28 Stat. 278), state adopted construction of latter act by United States Supreme Court as extending to all persons directly or indirectly furnishing contractor or subcontractor labor or material in construction of public works, so far as such construction is not inharmonious with spirit and policy of state's general legislation on subject.

Materials must form integral part of work to give materialman right of action on municipal contractor's bond (Rev. Gen. St. 1920, § 3533, as amended by Acts 1925, c. 10035). Under Acts 1915, c. 6867 (Rev. Gen. St. 1920, § 3533), materials supplied directly or indirectly to municipal contractor or subcontractor must not only substantially conform to specifications, but must form integral part of work and be necessarily involved therein, to give materialman right of action on contractor's bond, word 'used,' added to Act Cong. Aug. 13, 1894 (28 Stat. 278), by Act Cong. Feb. 24, 1905 (40 USCA § 270), and to state act of 1915 by Acts 1925, c. 10035, effecting no change in 'additional obligation' imposed by amended acts.

Allegation of statutory terms in defining additional obligation on municipal contractor's bond held sufficient to bring materialman within class protected by statute (Rev. Gen. St. 1920, § 3533). Allegation in declaration of terms used by Acts 1915, c. 6867 (Rev. Gen. St. 1920, § 3533), in defining additional obligation of principal and surety on municipal contractor's bond, held sufficient to bring materialman within class of persons protected by such act.

Burden was on materialman, suing on municipal contractor's bond, to prove that materials supplied formed integral part of work (Rev. Gen. St. 1920, § 3533). Burden is on materialman, suing on municipal contractor's bond under Acts 1915, c. 6867 (Rev. Gen. St. 1920, § 3533), to prove allegation that plaintiff supplied lumber to contractor in prosecution of work by evidence that materials supplied not only conformed to required specifications, but formed integral part of work and were necessarily involved therein.

Municipal contractor's transfer of title to materials furnished is no defense to materialman's action on contractor's bond (Rev. Gen. St. 1920, § 3533). In action by materialman within class protected by additional obligation imposed by Acts 1915, c. 6867 (Rev. Gen. St. 1920, § 3533), against surety on municipal contractor's bond, it is no defense that contractor transferred his title to material furnished and transferee carried on work, using such material as integral part thereof; surety not being subjected to double liability, while contractor could protect himself by taking security from his successor or subcontractor.

Materialman, not city, must stand loss from contractor's diversion of materials to other uses than prosecution of work. Materialman, not city, must stand loss from contractor's diversion of materials to other uses than prosecution of work contracted for, by reason of faith imposed in customer; city having derived no benefit from use of materials.

COUNSEL

Giles J. Patterson, of Jacksonville, for plaintiffs in error.

Marks, Marks & Holt, of Jacksonville, for defendant in error.

OPINION

ELLIS J.

In November, 1922, J. A. Kidd, one of the plaintiffs in error, entered into a contract with the city of Jacksonville under which Kidd agreed to do certain construction work upon and to furnish certain materials for the same in connection with the municipal docks of the city of Jacksonville. In order to secure the performance of his contract and make payments to all persons supplying him with labor and materials in the prosecution of the work provided for in the contract, he entered into a bond, with the Southern Surety Company as surety, payable to the city of Jacksonville in the sum of $51,210. The 'additional obligation' provided for by the statute is contained in the bond. See section 3533, Revised General Statutes 1920; McCrary Co. et al. v. Dade County, 80 Fla. 652, 86 So. 612.

The city of Jacksonville, for the use of Hirsch Lumber Company, brought an action in July, 1923, against Kidd and the Southern Surety Company upon the bond. The declaration in several counts alleged that the Hirsch Lumber Company supplied to Kidd in the prosecution of the work certain lumber of the value of $25,886.37 and the plaintiff therefore sued the defendant for the sum of $15,877.91 for money payable for lumber sold and delivered. The breach alleged was that Kidd did not well and truly promptly make payment to the Hirsch Lumber Company for the materials, but has refused and still refuses to make the payment saving and excepting the sum of $10,000, so there was a balance due on the purchase price of the lumber in the sum of $15,877.91, with interest.

The third count of the declaration is not materially different, merely alleging some details in the transaction by which Kidd became obligated to pay for the lumber supplied and delivered to Kidd in the prosecution of the work.

An amendment of the declaration was filed, alleging in each count that the 'lumber so furnished was in accordance with and complied with the specifications provided for and contained in the said contract between the said J. A. Kidd and the said City of Jacksonville, Florida.' The amendment was allowed in April, 1926.

Prior to the allowance of the amendment there was a demurrer to the declaration which was overruled. The second and third grounds of the demurrer were general in terms, that the declaration stated no cause of action, and that the facts alleged were insufficient to constitute a cause of action. Afterward certain pleas were interposed, and demurrers to them were sustained.

Upon a writ of error to the judgment which was entered, this court reversed the judgment on the ground that the pleas denied performance by the plaintiff of a condition precedent and tendered a material issue of fact, 'if it could be construed that the general allegations of performance contained in the declaration were in effect an allegation that the material had been furnished by plaintiff in conformity with the specifications stipulated in the contract and made a part of the bond, which issue was not presented by a plea of general issue.' See Kidd v. City of Jacksonville, 91 Fla. 380, 107 So. 677.

The above decision was rendered in March, 1926. The above amendment was prepared and filed before the decision of the Supreme Court in the case, but not allowed until after the decision.

In May, 1926, the surety company demurred to the declaration as amended. The demurrer contained the two general grounds above mentioned, as well as othres, among which the fifth and ninth presented the point that the declaration did not allege that the lumber supplied by the plaintiff to the defendant was used in the prosecution of the work mentioned. The demurrer was sustained in June, 1926.

The record does not disclose that any further amendments were made to the declaration, but, appearing in the record immediately following the order on demurrer is a document entitled 'Exhibit A,' purporting to be a copy of advertisement and specifications for 'furnishing materials for Constructing Wooden Relieving Platform, Anchor Pile System and Fender Pile System, and for the construction of a Steel Bulkhead Wall. September, 1922.' This document is contained in about twenty-six pages of the record, immediately following which there appears the demurrer above mentioned filed as of the 27th day of May, 1926, and sustained on the 18th day of June, 1926.

The record then discloses that on the 1st day of July, 1926, the Southern Surety Company filed its 'Demurrer to Amended Declaration,' in which reference is made to a further amendment of the declaration made June 18, 1926. That demurrer contained the same grounds as the former, with the exception of the eighth, which in the former demurrer raised the point that the specifications were not attached to the declaration or made a part thereof, although it appears that the same were constituted a part of the bond sued upon. The last demurrer was overruled.

Then the surety company pleaded that it never was indebted as alleged; third, that the lumber company did not supply to Kidd in the prosecution of the work the lumber and materials referred to in the declaration; fourth, that the lumber and materials referred to in the...