Marshall v. Scott, 72--515
| Decision Date | 16 May 1973 |
| Docket Number | No. 72--515,72--515 |
| Parties | R. J. MARSHALL, Appellant, v. C. B. SCOTT, Jr., d/b/a C. B. Electric, Appellee. |
| Court | Florida District Court of Appeals |
William E. Lowe, Palmetto, for appellant.
Charles H. McQuillan, Bradenton, for appellee.
A careful reading of the complaint shows that the allegations are not sufficient to state a cause of action for an equitable lien. Appellee did not allege lack of an adequate remedy at law, or special or peculiar equities justifying the imposition of an equitable lien; Wood v. Wilson, Fla.1955, 84 So.2d 32; Crane Co. v. Fine, Fla.1969, 221 So.2d 145. There was no mention of a written contract which showed an intention to charge the particular property with a debt or obligation; Jones v. Carpenter, 1925, 90 Fla. 407, 106 So. 127. Neither was there an allegation of ultimate facts showing mistake, fraud, misrepresentation of essential facts or other wrongdoing which would entitle appellee to an equitable lien; Merritt v. Unkefer, Fla.1969, 223 So.2d 723; Phillips Petroleum Company v. Schun Co., Fla.App.1969, 222 So.2d 491; Jennings v. Connecticut General Life Insurance Co., Fla.App.1965, 177 So.2d 66.
Appellee did not allege ultimate facts showing appellant's intention not to pay, or his insolvency or inability to pay, but merely alleged that appellant misrepresented that he would pay the contract price. This was not sufficient to state a cause of action for an equitable lien. The mere fact that a promise to pay is subsequently broken does not give rise to a cause of action for equitable relief. Otherwise any breach of contract would call for such a remedy. Prosser on Torts, 3rd Ed., p. 747; 37 Am.Jur., Fraud and Deceit, § 36, pp. 61 and 62.
We have carefully considered appellee's court erred in striking certain portions of court erred in striing certain portions of its amended complaint, but find this contention to be without merit.
The order appealed is reversed and the cause remanded to the trial court with instructions to dismiss the amended complaint, without prejudice to the plaintiff to file an amended complaint.
Reversed and remanded.
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...lien was stated in Merritt, then certainly no such cause of action was stated in the complaint now at issue. In Marshall v. Scott, 277 So.2d 546 (Fla. 2d DCA 1973), the Second District held that a particular complaint did not state a cause of action for an equitable lien. Therein the Court ......
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...loan agreement, which in and of itself will not give rise to equitable relief in the form of the imposition of a lien. Marshall v. Scott, 277 So.2d 546 (Fla. 2d DCA 1973). As for the lengthy and detailed final judgment, we find noticeably absent any finding by the chancellor to the effect t......
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Lien cases
...Corp. v. Palmer First National Bank and Trust Co. of Sarasota , 361 So.2d 156, 158 (Fla. 1978)). 4. R. J. Marshall v. C. B. Scott , 277 So.2d 546, 547 (Fla. 2d DCA 1973) (“The mere fact that a promise to pay is subsequently broken does not give rise to a cause of action for equitable relief......