CHAPMAN, Justice.
The question
presented for adjudication on this appeal is whether or not
appellant's second amended declaration, consisting of two
counts, states a cause of action. The Circuit Court of Dade
County, Florida, sustained a demurrer to the second amended
declaration, and each count thereof, thereby holding that the
second amended declaration failed to state a cause of action.
Count 1 is viz:
'1. That at all
times herein mentioned the plaintiff was, ever since has been
and now is engaged in the plastering business, performing
work as a plastering subcontractor for general building
contractors; that at all times herein mentioned the defendant
was, ever since has been and is now engaged in the business
of a general building contractor; that on, to-wit: the 10th
day of October, 1939, the plaintiff and the defendant entered
into a contract wherein and whereby in consideration of the
mutual covenants and promises each to the other made to be by
each, respectively, kept and performed, the plaintiff agreed
to supply all the plastering work on a construction project
known as 'Second Addition to Liberty Square, Miami
Florida,' for which construction project the defendant
was the general contractor; and the defendant agreed to pay
to the plaintiff the sum of Ninety Thousand ($90,000) Dollars
for said plastering work, which sum of Ninety Thousand
($90,000) Dollars was by the tacit agreement of the parties
to be paid the plaintiff according to general custom and
usage in construction contracts prevailing in Dade County,
Florida; to be paid in semi-monthly installments as the work
progressed until completion of the entire project when all
sums remaining due were to be paid in full;
and that both plaintiff and the defendant had knowledge of
said custom and usage at the time the contract between them
was made and that the parties hereto in the making of said
contract, contracted with reference to the aforesaid custom
and usage; that prior to the time when the plaintiff was to
start on said plastering work the defendant breached the said
contract by (1) notifying the plaintiff unequivocally and
unqualifiedly, that he, the defendant, would not perform his
part of the said contract; and that (2) that he, the
defendant, would not permit the plaintiff to proceed with
said work, and ever since has kept, refused and prevented
plaintiff from proceeding under said contract; whereby the
defendant has totally breached and repudiated the said
contract; that prior to such breaches, the plaintiff was at
all times ready, willing and able to perform his part of the
said contract; that as a result of the said breach and
repudiation as aforesaid, the plaintiff was wrongfully
deprived of the profits it would have made by virtue of said
contract.'
The second count is
viz:
'2. That at all
times herein mentioned the plaintiff was, ever since has been
and now is engaged in the plastering business, performing
work as a plastering subcontractor for general building
contractors; that at all times herein mentioned the defendant
was, ever since has been and is now engaged in the business
of a general building contractor; that on, to wit: the 10th
day of October, 1939, the plaintiff and the defendant entered
into a contract wherein and whereby in consideration of the
mutual covenants and promises each to the other made to be by
each respectively, kept and performed, the plaintiff agreed
to supply all the plastering work on a
construction project known as 'Second Addition to Liberty
Square, Miami, Florida' for which construction project
the defendant was the general contractor, and the defendant
agreed to pay the plaintiff the sum of Ninety Thousand
($90,000) Dollars for said plastering work, which sum of
Ninety Thousand ($90,000) Dollars was by the tacit agreement
of the
parties to be paid the plaintiff according to general custom
and usage in construction contracts prevailing in Dade
County, Florida; to be paid in semi-monthly installments as
the work progressed until completion of the entire project
when all sums remaining due were to be paid in full; and that
both plaintiff and the defendant had knowledge of said custom
and usage at the time the contract between them was made and
that the parties hereto in the making of said contract,
contracted with reference to the aforesaid custom and usage;
that subsequent to the entering into of the contract as
aforesaid, the defendant advised the plaintiff that it would
be necessary to obtain a surety bond in the sum of Ninety
Thousand ($90,000) Dollars, conditioned on the plaintiff
performing the contract as aforesaid; that thereupon the
plaintiff, at his own cost and expense, arranged for the
issuance of a surety bond in the sum of Ninety Thousand
($90,000) Dollars in accordance with the request of the
defendant; that subsequent to the entering into of the
contract as aforesaid, the plaintiff made all necessary
arrangements for the procurement of the large amounts of
supplies and materials to be used on the construction as
aforesaid; that notwithstanding the fact that the plaintiff
had made arrangements for the purchase of materials to be
used in connection with said construction, and
notwithstanding the fact that the plaintiff had made
arrangements for the purchase of materials to be used with
said construction, and not withstanding the fact that the
plaintiff had gone through the effort of obtaining surety
bond as requested by the defendant, prior to the time when
the plaintiff was to start on said plastering work, the
defendant breached the said contract by (1) notifying the
plaintiff unequivocally and unqualifiedly that he, the
defendant, would not perform his part of the said contract;
and that (2) that he, the defendant, would not permit the
plaintiff to proceed with said work, and ever since has kept,
refused and prevented plaintiff from proceeding under said
contract, whereby the defendant has totally breached and
repudiated the said contract; that prior to such breaches,
the plaintiff was at all times ready, willing and able to
perform his part of the said contract; that as a result of
the said breach and repudiation as aforesaid, the plaintiff
was wrongfully deprived of the profits it would have made by
virtue of said contract.'
Each count of the
challenged declaration alleged the making by the parties of a
verbal or oral contract and that the contract was in
existence, that it was valid, binding and enforceable and
provided for the plastering by the plaintiff for the
defendant of a designated building for the sum of $90,000 and
that the defendant...
