Miller v. Duke
| Decision Date | 16 July 1963 |
| Docket Number | No. E-3,E-3 |
| Court | Florida District Court of Appeals |
| Parties | John P. MILLER and Maude B. Miller, his wife, Appellants, v. Paul W. DUKE and James E. Duke, co-partners, d/b/a Duke Lumber & Supply Company, a co-partnership, Appellees. |
Scruggs & Carmichael, Gainesville, for appellants.
Lowry & Andrews, Gainesville, for appellees.
A construction of the Mechanics' Lien Law is involved in this appeal. 1 The appellants-owners John P. Miller and wife, Maude B. Miller, have appealed a summary final decree rendered in favor of plaintiff-materialman, Duke Lumber and Supply Company, which had filed this action to enforce its mechanic's lien.
The facts are not too complicated and are not in dispute. John P. Miller and Maude B. Miller, joined by Blennie Beach (the mother of Mrs. Miller), owners, entered into a written contract with Marion Manufacturing Company to construct a home on rural property in Alachua County owned by the Millers.
The full and complete consideration flowing to the contractor for the construction of the home was to be the conveyance by Mrs. Beach of a parcel of real estate in the City of Gainesville. Under the terms of the contract this conveyance would be executed upon completion and acceptance of the newly constructed home. There was no provision for partial payment of any type and no performance bond was specified.
Marterials in the value of $1,896.30 were furnished by Duke to the contractor and incorporated in the improvement. The contractor partially completed the project and then abandoned same. The owners have made no payment for the portion of work done or materials furnished. Although Duke did not give a cautionary notice as provided in Section 84.04, Florida Statutes, F.S.A., he timely filed his claim of lien against the property partially improved. No privity existed between Duke, the materialman, and Millers, the property owners. It is established without contradiction that no payment was to be made to the contractor until full compliance by him with the terms of the contract, and that Mrs. Beach stood ready and willing to convey the consideration set out in the contract upon completion of the project by the contractor or the plaintiffs or any other person lawfully entitled to perform the contract.
By stipulation the parties agree that: 1. The consideration which the contractor was to receive is of a value in excess of $2,000, 2. The fair market value of improvements actually made by the contractor in partial performance of the contract is in excess of $2,000, and 3. Labor and/or materials in the sum of $1,800 will be required to complete the project. Upon consideration of the materialman's complaint, the answer of the owners, the affidavit of the materialman to the effect that he had not been paid, and the aforesaid stipulation, the chancellor entered a summary final decree in favor of Duke finding that it had furnished to the contractor materials in the value of $1,896.30 which were incorporated in the improvement of the land owned by the Millers, and that Duke was entitled to recover the entire sum together with interest from the date the last item of said materials was delivered, and decreed that upon failure of the owners to pay said sum together with the cost within thirty days, the improved property be foreclosed by reason of said lien.
The material questions of law to be decided are substantially as follows:
1. Whether the Mechanics' Lien Law applies to a contract in which the consideration flowing from the owner to the contractor for the work done and material furnished consists of real property to be conveyed rather than currency or its equivalent.
2. Whether a materialman not in privity with the owner is entitled to the lien, and if so, the extent thereof, in those instances where the contract provides for payment to the contractor only upon completion of the job and the contractor without just cause abandons the job before it is substantially completed.
The Mechanics' Lien Law is of statutory origin and any given state of facts must be applied according to the general terms and intentions of the entire act. 2
In referring to the consideration involved in contracts covered by the Mechanics' Lien Law the terms 'money', 'sums of money', and 'per cent of payment' are employed. These designations do not bear or admit the connotation that contracts covered by the act may not be based on forms of consideration other than money. There is no merit in appellants' contention that the Mechanics' Lien Law does not apply to the contract in suit, which contention is predicated on the fact that the consideration flowing from appellant-owners to the contractor consisted exclusively of the promise of the former to convey to the latter certain urban real property. Equity looks to the substance rather than the form and the maxim 'id certum est quod certum reddi potest' is applicable to enable the trial court to determine, as an incident to settling the issues in this suit, the value of the real property, title to which was to pass to the prime contractor upon completion of the contract as consideration for the performance of his obligations thereunder. In final analysis the 'contract price' here involved is the value of the property so to be conveyed as of the date the contract was entered into.
The second question poses a more complicated problem. It calls for a determination of respective rights of the appellee-materialman and the appellant-owners under the facts peculiar to this case, including the salient fact that the prime contractor without excuse abandoned the contract prior to substantial completion. The good faith of the appellant-owners in entering into the subject contract is not questioned; consequently, the rights of the materialman against the owners are circumscribed by the terms and conditions of the contract, 3 coupled with the provisions of Chapter 84, Florida Statutes, 1961, F.S.A.
Within thirty days after beginning to furnish materials and not later than the last day of furnishing same, the statute contemplates that a materialman by filing a cautionary notice of intention to claim the statutory lien against the property to be improved 4 may acquire a position of priority with the owner. The appellee did not file such notice.
Where the owner directly contracts with the materialman they are of course in privity with each other and the lien arises as a matter of law. 5 There was no privity of contract between the owners and appellee in the case in review. Appellee initially looked to the prime contractor for payment and when he defaulted turned to the statute for a claim of lien upon appellants' property for satisfaction of the debt incurred by the prime contractor.
In Foley Lumber Company v. Koester, 6 it is held that a materialman's lien may be created either as a direct lien between the materialman and owner, or as a derivative lien arising from a contract between the materialman and the contractor, and that if there is no privity of contract with the owner, the materialman's rights are dependent upon the extent of the materialman's compliance with the provisions of the Mechanics' Lien Law. Other principles of law materially bearing upon the instant cause are found in Greenblatt v. Goldin 7 where it was held that materialmen may be secured by mechanics' liens upon land improved or affected by their material or labor, and this without reference to technical and ancient concepts of privity of contract. For like reasons they may be secured as against the owner by a lien upon any moneys due to the contractor, and secured as against the contractor by a lien...
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