Plowden & Roberts, Inc. v. Conway, 220

• Decision Date: 07 December 1966
• Docket Number: No. 220,220
• Citation: 192 So.2d 528
• Parties: PLOWDEN & ROBERTS, INC., a corporation, Appellant, v. Jim CONWAY, Jr., a/k/a J. M. Conway, Jr., d/b/a Conway Construction Company of Greenville, South Carolina, and United States Fidelity & Guaranty Company, Appellees.
• Court: Florida District Court of Appeals

Page 528

192 So.2d 528

PLOWDEN & ROBERTS, INC., a corporation, Appellant, v. Jim CONWAY, Jr., a/k/a J. M. Conway, Jr., d/b/a Conway Construction Company of Greenville, South Carolina, and United States Fidelity & Guaranty Company, Appellees.

No. 220.

District Court of Appeal of Florida, Fourth District.

Dec. 7, 1966.

Rehearing Denied Dec. 30, 1966.

Harlan Tuck, of Giles, Hedrick & Robinson, Orlando, for appellant.

M. W. Wells, Jr., of Maguire, Voorhis & Wells, Orlando, for appellee J. M. Conway, Jr., d/b/a Conway Const. Co.

Monroe E. McDonald, of Sanders, McEwan, Schwarz & Mims, Orlando, for appellee United States Fidelity & Guaranty Co.

SMITH, Chief Judge.

This appeal presents for review the propriety of a final judgment dismissing with prejudice the appellant-plaintiff's amended complaint, as amended, for failure to state a cause of action against the appellees, who were the defendants.

The action is based on a construction subcontract and payment and performance bonds given by the defendants. The judgment appealed is predicated chiefly upon the grounds that plaintiff failed to obtain an architect's certificate and give notice in accordance with the general contract and failed to give the surety opportunity to complete the work in accordance with the performance bond. Construing the plaintiff's pleadings in accordance with recognized rules, we reverse on the grounds, among others, that the contractual remedy requiring an architect's certificate and notice was optional or cumulative, not exclusive of common law remedies; that plaintiff did not rescind or annul the contract but elected the common law remedy of cancelling or terminating the contract, reserving the right to damages for its breach; and that the surety's rights to complete the work under the performance bond are a matter of affirmative defense, not assertable by motion to dismiss.

A re sume of the plaintiff's allegations of the ultimate facts on which it contends that it was entitled to relief is as follows: Plaintiff, Plowden & Roberts, Inc., entered into a contract with United Steel Erectors, Inc., whereby Plowden agreed to furnish labor and materials in the performance of a part of a subcontract between McDonough Construction Company and United, which was all a part of McDonough's contract for construction of a large store. Plowden then entered into a contract with the defendant, Conway, wherein Conway agreed to perform a part of the sub-subcontract of Plowden. Defendant, Conway, as principal, and defendant, United States Fidelity and Guaranty Company, as surety, executed and delivered their performance and payment bonds to Plowden. The complaint has attached as exhibits the sub-sub-subcontract between Plowden and Conway, the payment and performance bonds given by Conway and U.S.F. & G. to Plowden and the general contract specifications prepared by the architects.

The amended complaint, as amended, alleges that Conway violated and failed to fulfill his obligations and requirements under the contract and the bonds in that he failed to cooperate in the coordination of the work, failed to provide adequate supervision or an adequate and sufficient work force and failed to perform the work in a workmanlike and acceptable manner; that Conway induced a labor dispute among workmen on the job by violating an agreement with labor representatives; that he failed to pay his labor force for the last week on the job and failed to pay expenses incurred by him for services, materials and supplies in the performance of the work; that Plowden met in a conference with Conway, representatives of the owner and the general contractor, wherein Conway informed Plowden that he would not continue with his contract without the payment of funds over and above the contract price; that Plowden then delivered its letter to Conway advising that Plowden had terminated the contract with Conway and would look to Conway for damages caused by Conway's breaches of contract; that Conway departed from the job site the next day and performed no further work; and that defendant, U.S.F. & G., knew of the default of Conway and the termination of the contract by Plowden but took no steps to remedy the default of its principal. Plowden then alleged that it was required to finish the work which Conway had contracted to perform to its damage alleged in detail.

All pleadings are required to be construed so as to do substantial justice. Fla.R.C.P. 1.8(g), 30 F.S.A. In general, the complaint alleged the execution and delivery of the contract and the bonds sued upon, the obligations undertaken by the defendants and their breach and resultant damages, which is generally sufficient to state a cause of action for breach of contract. Cerniglia v. Davison Chemical Company, Fla.App.1962, 145 So.2d 254. The fact that the complaint involves a contract and two bonds all alleged in one count does not render the complaint subject to a motion to dismiss for failure to state a cause of action. If two separate claims are stated in one count the proper procedure is a motion to compel separate statements of claim. Arcade Steam Laundry v. Bass, Fla.App.1964, 159 So.2d 915. Since the complaint is not so vague, indefinite and ambiguous as to wholly fail to state a cause of action, a motion for more definite statement is appropriate for the dissipation of vagueness and ambiguity. Frisch v. Kelly, Fla.App.1962, 137 So.2d 252.

The original complaint alleged in general terms the performance of all the stipulations, conditions and agreements. This was sufficient averment of conditions precedent. Fla.R.C.P. 1.9(c). The amended complaint, as amended, goes further and alleges performance or occurrence of conditions precedent with particularity not required by the rules. When this is done, the sufficiency of the particular allegations may be tested by motion to dismiss. United States F. & G. Co. v. Dist. Grand Lodge No. 27, 1909, 58 Fla. 373, 50 So. 952. The provisions of the above rule permitting general allegations have not altered the rule that the sufficiency of the allegations may be tested by motion to dismiss. Wagman v. Lefcoe, Fla.App.1964, 167 So.2d 765. The requirement in that rule that a denial of performance or occurrence shall be made specifically and with particularity does not make failure of performance or occurrence of conditions precedent an affirmative defense. If the specific allegations disclose facts which will necessarily defeat the right of action then on motion the complaint may be dismissed. Martin v. Highway Equipment Supply Co., Fla.App.1965, 172 So.2d 246.

The question of conditions precedent comes in focus when it is noted that the contract between the owner and the general contractor incorporated as a part thereof the American Institute of Architects' General Conditions, 1961 Edition. Article 37 of the General Conditions provides that every subcontractor agrees to be bound by the terms of the contract, the general conditions of the contract and other items therein specified, unless specifically noted to the contrary in a subcontract approved by the owner or architect....