Roy L. Willard, Inc. v. Miller

• Court: United States State Supreme Court of Florida
• Citation: 8 So.2d 489,150 Fla. 458
• Decision Date: 01 May 1942
• Parties: ROY L. WILLARD, Inc., v. MILLER

8 So.2d 489

150 Fla. 458

ROY L. WILLARD, Inc.,
v.
MILLER

Florida Supreme Court

May 1, 1942

On Rehearing June 9, 1942.

Rehearing Denied June 19, 1942. [8 So.2d 490]

Arthur S. Friedman, of Miami, for plaintiff in error.

Ward & Ward, of Miami, for defendant in error.

[150 Fla. 459] 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 [150 Fla. 460] 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 [150 Fla. 461] 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 [8 So.2d 491] parties to be paid the plaintiff according to...