Richard Store Co. v. Florida Bridge & Iron, Inc.

Decision Date19 July 1954
Citation77 So.2d 632
PartiesThe RICHARD STORE COMPANY, a Florida corporation, Petitioner, v. FLORIDA BRIDGE & IRON, Inc., a Florida corporation, Respondent.
CourtFlorida Supreme Court

John C. Sullivan, Miami, for petitioner.

Boardman & Bolles, Miami, for respondent.

PER CURIAM.

This cause having heretofore been submitted to the Court on Petition for Writ of Certiorari upon the transcript of record and briefs to review the order of the Circuit Court for Dade, County in said cause bearing date of May 25, 1954 affirming the Judgment of the Civil Court of Record, in and for Dade County, Florida, dated December 22, 1953, and the record having been inspected, it is ordered that said Petition be and the same is hereby denied.

On Rehearing.

TERRELL, Justice.

Respondent, Florida Bridge and Iron Inc., a Florida corporation, instituted this cause by a petition in the Civil Court of Record, Dade County, to enforce a statutory mechanic's lien. Named as party defendants were the fee simple owner, The Richard Store Company, a Florida corporation, and the contractor, W. P. Ferguson Company, Inc., a Florida corporation. The petition prayed for judgment against the defendants in the amount of the lien for reasonable attorney's fees and that the fee simple interest of the owner be sold to satisfy the judgment and lien.

Following a rush of pleadings not necessary to delineate and the taking of testimony, the trial court entered a final judgment in favor of the respondent and against the fee simple owner in the sum of $3,496.66 plus costs, etc., and adjudicated a lien for such amount. In lieu of adjudicating a lien on the real property a surety bond was substituted by court order. On appeal to the Circuit Court of Dade County the judgment of the Civil Court of Record was affirmed. We are confronted by a petition for common law certiorari, seeking a review of the judgment of the Circuit Court of Dade County, affirming the final judgment of the Civil Court of Record.

The questions implicit in the factual background of the case are (1) whether under the circumstances the respondent sub-sub-contractor, Florida Bridge & Iron Inc., is entitled to a mechanic's lien for the full contract price in accordance with the oral agreement with Ferguson, the sub-contractor, (2) was it necessary for Florida Bridge & Iron, Inc. to serve a cautionary notice on the owner, The Richard Store Company, as provided by Section 84.04(1), Florida Statutes, F.S.A., in order to claim a valid lien against it, and, (3) the claim for lien being filed within the three months' period provided by Florida Statute 84.16, F.S.A., was the claimant entitled to any more than the amount due on the contract with Ferguson by the contractor, Fred Howland, Inc., at the date of the filing of the lien, February 14, 1951. The answer to the latter question turns on whether or not the $1,000 payment made by the contractor to Ferguson was a 'proper payment' within the meaning of that term as used in the Mechanics' Lien Act.

This Court in Shaw v. Del-Mar Cabinet Co., Fla., 63 So.2d 264, 266, quoted with approval 1 Florida Law Review 423 by Pringle as follows:

'This law imposes on the owner of real property on which improvements are being made the duty of disbursing the money due on the direct contract with the contractor is such a way as to furnish the greatest possible amount of protection of laborers, materialmen and others who performed services or furnish materials for the improvement. Provisions are included, however, for the protection of the owner; and he can, by properly paying the money due on the direct contract, avoid having any mechanics' liens enforced against his property. * * *'

If this is the correct rule how can it be said that the law imposes upon the owner the responsibility to a sub-sub-contractor not in privity with the contractor or the owner to disburse money due to the contractor who is not liable to the sub-sub-contractor by reasons of default of the sub-contractor to whom the contractor owes nothing? To impose such a burden upon the owner is unreasonable and illogical. How can it be said that the owner is authorized by statute to withhold such funds due to the contractor? The sworn statement required of the contractor, Section 84.04, F.S., F.S.A., before the owner can make a proper final payment would ordinarily be the account of the contractor with his materialmen and his sub-contractors and no more. See Sheffield-Briggs Steel Products, Inc., v. Ace Concrete Service Co., Fla., 63 So.2d 924, and Bensam Corp. v. Felton, Fla. 1953, 63 So.2d 278. The sworn statement is for the benefit of the owner, the sub-contractor and the materialmen. The sub-contractor and materialmen, not being in privity with the owner, are entitled to such protection by reason of the contractor's liability to them, but such is not the case with a sub-sub-contractor.

Persuasive by analogy is the requirement of cautionary notice, see Section 84.04 F.S., F.S.A., as to those not in privity with the owner. The purpose of said notice is to impound money that would otherwise be paid to contractor as progress payments. The aggregate amount of such claims cannot exceed the contract price as diminished by the amount of money 'properly paid' by the owner, Florida Statutes 84.02, F.S.A. The Mechanics' Lien Law is in apposition with the theory of subrogation. We do not adhere to the lien law as grounded on implied agency, ratification or quantum meruit followed in approximately 20 states. See 6 Miami ...

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13 cases
  • Phoenix Indem. Co. v. Board of Public Instruction of Alachua County, B-64
    • United States
    • Florida District Court of Appeals
    • September 24, 1959
    ...thus failing to provide protection for those furnishing materials and labor to the subcontractors. Richard Store Company v. Florida Bridge & Iron, Inc., Fla., 77 So.2d 632. Under Section 255.05, however, the coverage of the bond for public works contracts includes 'labor, material and suppl......
  • Dresner v. City of Tallahassee
    • United States
    • Florida Supreme Court
    • May 22, 1964
    ...v. Goodkind, 153 Fla. 267, 14 So.2d 398; Flash Bonded Storage Co., Inc. v. Ades, 152 Fla. 482, 12 So.2d 164; Richard Store Co. v. Florida Bridge & Iron, Inc. (Fla.), 77 So.2d 632. Our reply to certified questions 2(b), 2(c) and 2(d) is likewise in the affirmative. We answer these inquiries ......
  • Brown v. First Federal Sav. & Loan Ass'n of New Smyrna
    • United States
    • Florida District Court of Appeals
    • January 28, 1964
    ...that he was a subcontractor under the rationale of Orange Plumbing & Heating Company v. Wolfe, supra, and Richard Store Company v. Florida Bridge & Iron, Inc., 77 So.2d 632 (Fla.1954). In rejecting that contention the Florida Supreme Court said (page 'Section 84.04 Florida Statutes, F.S.A.,......
  • Tom Joyce Realty Corp. v. Popkin
    • United States
    • Florida District Court of Appeals
    • May 5, 1959
    ...Sheffield-Briggs Steel Products, Inc. v. Ace Concrete Service Co., Inc., Fla.1953, 63 So.2d 924.11 The Richard Store Company v. Florida Bridge & Iron, Inc., Fla.1954, 77 So.2d 632, 635.12 Fla.1957, 94 So.2d 178, 180.13 Also compare Dills v. Tomoka Land Company, Fla.App.1959, 108 So.2d 896.1......
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