Mullray v. Aire-Lok Co., AIRE-LOK

• Decision Date: 17 December 1968
• Docket Number: No. 68--163,AIRE-LOK,68--163
• Citation: 216 So.2d 801
• Parties: Janet N. MULLRAY, R. B. Gautier, Jr. and Francis J. Rainer, d/b/a The Island Associates, Appellants, v.CO., Inc., a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 801

216 So.2d 801

Janet N. MULLRAY, R. B. Gautier, Jr. and Francis J. Rainer, d/b/a The Island Associates, Appellants, v. AIRE-LOK CO., Inc., a Florida corporation, Appellee.

No. 68--163.

District Court of Appeal of Florida, Third District.

Dec. 17, 1968.

Rehearing Denied Jan. 17, 1969.

Worley, Gautier & Patterson and Robert G. Worley, Miami, for appellants.

Rosenberg, Rosenberg, Reisman & Glass, Miami, for appellee.

Before CHARLES CARROLL, C.J., and BARKDULL and HENDRY, JJ.

HENDRY, Judge.

This is an appeal by three of four co-plaintiffs from an order dismissing their complaint without leave to amend.

Appellants, owners of the Island House Apartments, and doing business as the Island Associates, joined with Burk Builders, Inc., a general contractor, in a suit against appellee, a subcontractor. One complaint was filed on behalf of all four parties. Count I of the complaint alleges that the owners and the general contractor entered into a certain contract for the construction of the Island House Apartments; that thereafter the general contractor entered into a subcontract with the appellee, Aire-Lok Co., Inc., wherein the appellee, as subcontractor, undertook to furnish certain materials and labor; to perform all window and perimeter caulking work on the apartment building pursuant to the prime contract, plans and specifications; to perform such services in a good and workmanlike fashion; and further, to furnish a five-year bond against leaks in the windows.

Count II of the complaint alleges that the subcontract was a contract made for the direct benefit of the owners. Count III alleges that by virtue of the subcontract, the subcontractor represented to the owners and the general contractor that all the materials and equipment, including windows, panels and perimeter caulking, were to be in accordance with the plans and specifications and, by so representing, expressly warranted the quality and condition of the materials for the use intended; moreover, Count III goes on to state that the owners and general contractor relied on such representations. Count IV alleges that the subcontractor impliedly warranted that the materials furnished and installed by it were reasonably fit for the general purpose for which they were manufactured and intended. The complaint concludes by alleging that the defendant breached its duties and obligations as set forth in each of the counts of the complaint.

The defendant filed a motion to dismiss the complaint which was granted by the trial judge without leave to appellants to amend. The order of dismissal set forth that: 'This multifarious complaint attempts to assert unilateral causes of action against the subcontractor defendant, whereas the cause of action, if any should be vested in the general contractor who was in contractual privity with the subcontractor.' It is from this order that the owners appeal.

Appellants take the position that the owners of a building have a valid cause of action against a subcontractor, even though there was an absence of contractual privity, where the cause of action is based on: (a) breach of contract; (b) negligence in the performance of a contract; and (c) implied warranty. Appellants also contend that the joinder of the owner's cause of action with that of the general contractor's does not cause the joint complaint to be subject to dismissal as being multifarious. We agree with appellant's contentions and reverse.

The first question we shall consider is whether the owners' lack of contractual privity with the subcontractor is fatal to their cause of action against the subcontractor. We hold that it is not, and that the trial court erred when it dismissed the appellants' cause of action for lack of privity. The rule which we think is controlling in the instant case is stated in 38 Am.Jur. Negligence, Sec. 21:

'On the other hand, a contractual relation between the parties is not necessary to the existence of a duty the violation of which may constitute actionable negligence, where the relation which is requisite to the existence of a duty to exercise due care, is to be found in something else. Subcontractors of one who has agreed with the owner to move and fit up a building in a workmanlike manner Are liable to the owner for negligent injury to the building in doing the work, Even though there is no privity of contract between them. The gist of the action in such case is the breach of duty owned by the subcontractors to the owner not to injure his property negligently, and such duty does not depend on nor grow out of the contract. ...