Ocala Foundry & Machine Works v. Lester

• Decision Date: 21 February 1905
• Citation: 49 Fla. 347,38 So. 56
• Court: Florida Supreme Court
• Parties: OCALA FOUNDRY & MACHINE WORKS v. LESTER et al.

38 So. 56

49 Fla. 347

OCALA FOUNDRY & MACHINE WORKS v. LESTER et al.

Florida Supreme Court, Division A.

February 21, 1905

Appeal from Circuit Court, Marion County; William S. Bullock, Judge.

Bill by the Ocala Foundry & Machine Works against P. R. Lester and R G. Daniels, doing business under the name of Ocklawaha Lumber Company. Decree for defendants, and plaintiff appeals. Reversed.

Syllabus by the Court

SYLLABUS

1. An appeal in chancery opens the whole case for the consideration of the appellate court, and a cross-appeal is not essential to entitle an appellee to a reversal of a decree which contains errors prejudicial to his rights.

2. At common law, independent of statute, an artisan had a lien upon chattels for the price of work done on them, and was entitled to retain the exclusive possession thereof until such price had been paid, but the common law gave no right to sell the chattel to enforce the lien, and there was no adequate method of foreclosing the lien.

3. The effect of section 1744 of the Revised Statutes of 1892, as amended by chapter 4582, p. 122, of the Acts of 1897, was first, declaratory of the common-law right of the artisan to hold possession of the chattel; second, to restrict the right to hold such possession to a period of three months after the lien had attached; and, third, to provide certain remedies for the enforcement of such liens.

4. The second part of section 1745 of the Revised Statutes of 1892 gives to the mechanic or artisan the right to sell the same at public auction after three months from the time the charges of the mechanic or artisan became due, as therein provided, without any judicial proceedings; but it is optional with the mechanic or artisan to pursue the remedy given by this section, or to elect to pursue one of the other remedies given by statute.

5. The liens given by statute to the mechanic or artisan may be enforced by a bill in equity under sections 1510, 1744, of the Revised Statutes of 1892, as the summary remedy provided by section 1745 is not exclusive, the remedies given by the different statutes being merely cumulative.

6. The mere retention of the possession of the chattel by the mechanic or artisan does not estop or preclude him from filing a bill in equity for the enforcement of his lien; and by filing such bill before the period of three months specified in sections 1744, 1745, Rev. St. 1892, had elapsed a clear intention is evinced on the part of such mechanic or artisan to pursue his remedy in equity, rather than the summary remedy given by section 1745.

7. As a general rule, where a plea is filed to the whole bill, and an answer is also filed purporting to be in support of the plea but in reality containing more than is strictly applicable to the support of the plea, such an answer will have the effect of overruling the plea, provided some ruling of the court is invoked thereon.

8. Where a plea is filed to the whole bill, and an answer is also filed purporting to be in support of the plea, but containing more than is applicable in support thereof, embracing, in fact, other and distinct defenses to the whole bill, and the plea is not set down for argument, no ruling of the court being invoked thereon, but the complainant files a general replication to both the plea and the answer, treating them as interposing valid defenses, not incompatible with each other, and the chancellor below so treats them, an appellate court is warranted in treating them likewise, and in holding that the plea was not overruled by the answer.

9. A plea and an answer strictly and wholly in support of the plea form one pleading, and such an answer cannot be regarded as a defense independent of the plea.

10. As a general rule, when a replication has been filed to a plea, it is incumbent upon the defendant to prove the matters contained in the plea, the burden of proof being cast on him.

11. Where a plea is filed to the whole bill, and an answer is also filed thereto containing more than is applicable in support of the plea, embracing other and distinct defenses to the bill, and general replications are filed to both the plea and answer, it is incumbent upon the defendant to prove the matters contained in his plea, and incumbent upon the complainant to prove the allegations in his bill as to the matters contained in the answer which were not in support of the plea, but which were responsive to the bill. In such a case the burden of proof in part rests upon the complainant, and in part upon the defendant.

12. A sworn answer, denying the allegations in the bill which are essential to sustain the case of the complainant, and entitle him to relief, is evidence in favor of the defendant, and conclusive, unless overcome by the testimony of two witnesses, or of one witness corroborated by other circumstances which are of greater probative weight than the answer, provided that the oath to the answer has not been waived, and the answer is directly and positively responsive to the material allegations of the bill. Where one witness on behalf of the complainant testifies positively as to the material allegations of the bill, and the testimony of the defendant does not support his answer, being evasive, or in conflict therewith, this is to be taken into consideration by the court, and, in connection with all the circumstances as shown by the pleadings and the evidence, may prove sufficient to overcome the probative force of the sworn answer.

13. Affirmative relief cannot be decreed in favor of a defendant except in matters of accounting upon the facts stated in the answer. Where a defendant seeks affirmative relief, he should file a cross-bill.

14. Under the provisions of rule 19, S.Ct. Rules, as amended on February 17, 1897 (21 South. v), no objection will be allowed to be taken in the appellate court to the admissibility or competency of any testimony, oral or documentary, found in the record as evidence in a chancery cause, unless the record affirmatively shows that the objection thereto was presented to the chancellor, and expressly ruled upon by him in the court below at or before the final hearing of the cause. Every paper purporting to be evidence found copied by the clerk into the record in a chancery cause will be presumed by the appellate court to have been offered in evidence in the court below.

COUNSEL

Allred & Davis, for appellant.

R. L. Anderson, for appellees.

On the 2d day of October, 1902, the appellant filed its bill of complaint against the appellees in the circuit court in and for Marion county, and on the 30th day of January, 1903, filed its amended bill, which was as follows:

'Comes your orator, Ocala Foundry & Machine Works, a corporation organized under and by virtue of the laws of the state of Florida, by Allred & Davis, its solicitors and pursuant to an order of the court heretofore made files this its amended bill of complaint, complaining of P. R. Lester and R. G. Daniels, as copartners under the firm name of Ocklawaha Lumber Company, shows to the court: That it is a corporation organized and existing as above set out for the purpose, among other things, of repairing boilers, tanks, and other machinery and apparatus and of supplying the material necessary for such repair, and that its principal place of business is in Ocala, Marion county, Florida. That P. R. Lester and R. G. Daniels are copartners under the firm name of Ocklawaha Lumber Company, and are doing business in Marion county, Florida, and as such copartners are now, and were on the 19th day of February, A. D. 1902, the owners of a certain locomotive engine boiler and tank of Fifield make, which said locomotive engine boiler and tank are placed, used, and operated on one and the same platform, and constitute one complete apparatus and machine.

'Your orator further shows that on the 19th day of February, A. D. 1902, the said defendants, as above mentioned, delivered to your orator the above-described machine or apparatus, and requested and instructed your orator to overhaul and repair the boiler attached thereto, and put the same in good serviceable condition, and to furnish and put therein one hundred and eighteen two-inch tubes four feet six inches long, to furnish and put in one boiler head, one water gauge, and set of gauge cocks; it being understood by and between your orator and defendants that your orator should and would furnish all materials necessary for such work, labor, and repair, and would perform such work and labor in skillful and workmanlike manner; and said defendants then and there agreed to pay to your orator for such work, labor, and material the sum of two hundred and ninety-five dollars.

'Your orator further shows to this honorable court, that on the 10th day of June, A. D. 1902, the said defendants requested the complainant by letter in writing to put the said dummy engine in best running order, in first-class condition, at and for an agreed price of $285; a copy of which said letter and of the letter to which it constitutes and is a reply are hereto attached, and marked Exhibits 'A' and 'B,' respectively, and made a part hereof.

'Your orator further shows that there was no specific time fixed or agreed upon for the completion of said work and labor either upon said boiler or engine. And that your orator did and performed all things necessary by it to be done and performed, and in the manner required by the terms and conditions of said contracts above mentioned, and furnished and put in said boiler the said one hundred and eighteen two-inch tubes, and furnished and put in said boiler head above mentioned, and furnished and attached said water gauge and gauge cocks, and overhauled and put said boiler in good serviceable condition, as required by

...