Long v. Sphaler

• Decision Date: 30 June 1926
• Citation: 92 Fla. 121,109 So. 422
• Parties: LONG et al. v. SPHALER et al.
• Court: Florida Supreme Court

109 So. 422

92 Fla. 121

LONG et al. v. SPHALER et al.

Florida Supreme Court

June 30, 1926

Rehearing Denied July 27, 1926.

En Banc.

Suit by E. L. Sphaler and others, as copartners, trading as Pine Castle Lumber Company, against W. E. Long and J. F. Kirkland. Judgment for plaintiffs, and defendants appeal.

Affirmed.

See also, 89 Fla. 499, 105 So. 101.

Syllabus by the Court

SYLLABUS

Answer not denying material allegation of bill or averring pleader's want of knowledge admits allegation and renders further proof of it unnecessary. Where complainant in a bill in equity alleges in express terms a material allegation essential to the relief prayed, and the answer of the defendant neither denies the specific allegation of the bill nor avers that the pleader is without knowledge as to such alleged fact, such answer will be taken as an admission by the defendant of the allegation, and it is not necessary to further prove its existence.

Where evidence conflicts on disputed fact, chancellor's finding, supported by substantial evidence and not clearly wrong, will not be disturbed on appeal. Upon a disputed question of fact, in an equity proceeding, when the evidence is conflicting, and the finding of the chancellor is supported by substantial evidence and does not clearly appear to be wrong on the whole evidence, such conclusion of the chancellor will not be disturbed on appeal.

Appeal from Circuit Court, Orange County; C. O Andrews, judge.

COUNSEL

Jones &amp Jones, of Orlando, for appellants.

Maguire & Voorhis, of Orlando, for appellees.

OPINION

KOONCE Circuit Judge.

The bill of complaint alleges that the appellees (complaints below) furnished material to the appellant Kirkland (one of defendants below) for improvements on the building of the appellant Long (the codefendant below), Kirkland being the contractor performing the work on such building; that a written notice was served on the owner Long that such material had been furnished to Kirkland to be used in repairing and improving the building on the property of the owner Long. The answer of the defendant did not specifically deny the service of such written notice, but at least implies that such notice was served by these words:

'That at the time of the service of the notice and the filing of the lien as alleged in the bill of complaint, this defendant was not due the defendant Kirkland any amount whatever, but on the contrary the defendant Kirkland is due and was due money to this respondent; that no cautionary notice has been filed on this defendant in time to stop any amount due Kirkland.'

This answer at best amounts to no more than a denial that notice was served (the word used by defendant being 'filed') in time to stop any amount due Kirkland by Long. This answer must...