Mulliken v. Harrison

• Decision Date: 04 June 1907
• Citation: 44 So. 426,53 Fla. 255
• Parties: MULLIKEN v. HARRISON et al.
• Court: Florida Supreme Court

44 So. 426

53 Fla. 255

MULLIKEN v. HARRISON et al.

Florida Supreme Court, Division B.

June 4, 1907

Error to Circuit Court, Leon County; John W. Malone, Judge.

Assumpsit by W. T. Harrison and others against R. K. Mulliken and another. From a judgment for plaintiffs, Mulliken brings error. Reversed.

Syllabus by the Court

SYLLABUS

Under the provisions of section 1743, Rev. St. of 1892 (section 2211, Gen. St. Fla. 1906), the only way that a party not in privity with the owner can acquire the statutory subcontractor's or materialman's lien therein provided, is by serving the owner or his agent with written notice to the effect that the contractor is indebted to the party giving the notice for labor or material stating the amount thereof. The statutory lien exists only from the time of the service of such written notice, and only for such amount as may be due and unpaid by the owner to the contractor at the time of the service of such written notice. Such notice also creates a personal liability against the owner to the extent of the amount that he owes and has not paid to the contractor at the time of the service of such notice.

Where the owner of a lot contracts with a building contractor for a stated sum for the furnishing of all the materials and labor for the erection of a building on such lot, and, during a short temporary absence of the contractor, agrees with the laborers employed by such contractor to see that they were paid for their work and materials 'in the event the contractor did not return,' such conditional promise terminates and ceases to be further binding and obligatory upon such owner upon the return and resumption of the contract within a reasonable time by the contractor.

Where subcontractors and materialmen employed by the building contractor bring suit against the owner, resting their claim against him solely upon an alleged special agreement with them by the owner to pay them for their labor and materials it is error for the court to instruct the jury as follows 'If you believe from a preponderance of evidence that the defendant Mulliken contracted with the defendant Lowe to construct the building mentioned in the declaration, and that the defendant Lowe employed the plaintiffs to perform labor and furnish material in the construction of said building under said contract, and that they performed said labor and furnished said material in pursuance thereof, and have never been paid therefor, then you should find for the plaintiffs for the value of such labor performed and materials furnished against the defendant.' Such charge ignores the existence of the special agreement declared upon, and ignores the statutory provisions by which subcontractors and materialmen not in privity with the owner can, under the statute, alone acquire a right of action against the owner.

Charges should state the law of the case correctly, and should be predicated upon the facts in proof, and, when predicated upon a statement of facts contrary to the uncontradicted and undisputed proofs in the case, they are erroneous.

Under a Constitution like ours, that gives to our circuit courts jurisdiction both at law and in equity, and that recognizes and preserves the line of demarkation between the two jurisdictions clearly, this court is in serious doubt, but does not decide, as to the constitutionality of out legislation permitting two or more persons, having separate and distinct claims and statutory liens against the same defendant, with no joihtness or privity of interest or right as between themselves or their respective claims or liens, to join in a single suit at law against the common debtor for the enforcement of their several and respective claims, and that undertakes to clothe such court at law with authority to adjudge to them and each of them a several specific lien upon specific real estate, and to adjudge the sale of that specific property for the enforcement of such several specific liens, as is provided for in subdivision 4 of section 2212, and by section 2224, Gen. St. 1906. Quaere--is it constitutionally competent for the Legislature to authorize our courts at law to administer relief so closely resembling the comprehensive and elastic province of a decree in equity?

COUNSEL

Jos. A. Edmondson, for plaintiff in error.

Wm. C Hodges, for defendants in error.

OPINION

TAYLOR J.

The defendants in error as plaintiffs below instituted their joint action in assumpsit and for the enforcement of alleged mechanics' liens on the law side of the circuit court of Leon county against R. K. Mulliken as owner of a certain building and the lot of land upon which it stands in the city of Tallahassee, in said county of Leon, and against L. D Lowe as contractor for the erection of such building. The declaration is as follows:

'In the Circuit Court of Florida, 2d Judicial Circuit, Leon County. In Law.

'W. T. Harrison et al., Plaintiffs, v. R. K. Mulliken and L. D. Lowe as Contractor, Defendants. Assumpsit and for enforcement of a lien.

'W. T. Harrison, C. R. Handley, Joshua Crosby, and John Sheppard sue R. K. Mulliken and L. D. Lowe, as contractor, for work done and materials furnished by the plaintiffs for the defendants and each of them separately at their requests.

'W. T. Harrison, C. R. Handley, Joshua Crosby, and John Sheppard sue R. K. Mulliken and L. D. Lowe as his contractor for money due each of them for labor performed and materials furnished for the masonry work, painting, carpentering, and plastering work on the residence of said defendant R. K. Mulliken, situate on lot 134, North addition to the city of Tallahassee, in Leon county, Florida; the said work being performed and the materials furnished during the year of 1905, and at the separate request of L. D. Lowe as contractor and R. K. Mulliken as owner.

'And the plaintiffs pray the court for judgment herein, and that the said property, to wit, the house situate on lot 134, North addition to the city of Tallahassee, be sold to satisfy their lien.

'And the plaintiffs claim two hundred dollars damages.

'Wm. C. Hodges, Attorney for Plaintiffs. 'January 1st, 1906.

'The following amounts are due W. T. Harrison, C. R. Handley, Joshua Crosby, and John Sheppard from R. K. Mulliken and L. D. Lowe as his contractor, as follows:

"1905. W. T. Harrison: Masonry work and masonry material furnished for residence of R. K. Mulliken, lot 134, N.A., Tallahassee	$ 54 50
"C. R. Handley: For painting residence materials furnished for same on residence aforesaid	28 60
"Joshua Crosby: Carpenter work and materials furnished on said residence	10 00
"John Sheppard: Plastering house and material furnished lot 134, N. A., aforesaid	11 70
	--------
"Total	$104 80"

The defendant R. K. Mulliken demurred to the declaration upon divers grounds not necessary to be mentioned, since none of such grounds, as applied to the case made by the declaration, are of merit. The court below overruled this demurrer, upon which the defendant Mulliken interposed three pleas; the first thereof being a specific denial that the work, labor, and materials sued for was performed at his request.

The second of said pleas alleges that none of the plaintiffs delivered to him a written notice that the defendant Lowe was indebted to them, or any of them, until after he had...