Summerlin v. Thompson

• Court: Florida Supreme Court
• Writing for the Court: MABRY, J. RANEY, C.J.
• Citation: Summerlin v. Thompson, 31 Fla. 369, 12 So. 667 (Fla. 1893)
• Decision Date: 30 January 1893
• Parties: SUMMERLIN et al. v. THOMPSON et al.

12 So. 667

31 Fla. 369

SUMMERLIN et al. v. THOMPSON et al.

Florida Supreme Court

January 30, 1893

Appeal from circuit court, Polk county; H. L. Mitchell, Judge.

Action by M. E. Thompson and W. B. Thompson, partners as Thompson &amp Co., against Jacob Summerlin and others, under Acts 1887, c 3747, to enforce a lien for labor and material furnished in the erection of a building. From a judgment for plaintiffs defendants appeal. Affirmed.

Syllabus by the Court

SYLLABUS

1. The liens provided by the act of 1887 (chapter 3747) may be enforced for labor done and materials furnished in the erection of a building after the act went into effect although the contract for its erection was entered into prior to that time.

2. A proceeding to enforce a lien given by this act is regulated by statute, and the party resorting to it must allege in his affidavit the facts which entitle him, under the statute, to the relief demanded, but, if the affidavit complies substantially with all the requirements of the statute, it is sufficient.

3. The provision of the statute that a contractor or subcontractor of the buildings therein mentioned, when required in writing to do so, shall furnish the person having the work done a correct list of all persons who, as subcontractors or material men, are furnishing materials therefor, and a refusal to furnish such list may be pleaded in bar of the lien claimed, unless it can be shown that all claims for materials so furnished have been paid, does not impose upon a plaintiff the necessity of stating in his affidavit that a demand has been made for the list, and the same furnished, or that no demand has been made, as the case may be. Whatever defenses a defendant may have under this provision of the statute may be set up by plea.

4. A clause in a building contract that, should the contractors and a building committee named disagree as to the quality of material, or the proper construction of any part of the building to be erected, then the architect named shall decide the issue, and his judgment shall be final as to the matters of dispute, which shall include all disagreements as to the amount and value of work for which payment is demanded, is valid and binding upon the parties. But in a proceeding to enforce a lien claimed by the contractors as a balance due on the building, if the defendants do not set up said clause in the contract in abatement of the action, but interpose pleas involving a consideration before the jury of the entire merits of the controversy between the parties, and proceed to trial on the issues presented without insisting on the decision of the architect, and without raising any objection to the testimony of plaintiffs to sustain their case, the right to an adjustment of the differences between the parties by the architect will be considered as waived.

5. The act of 1887 (chapter 3747) is not amenable to the objection that it is unconstitutional because it confers special powers or special jurisdiction upon the courts, or changes the general rules of practice in favor of a class.

6. Where the testimony that a building to be erected is designed for school purposes, this alone is not sufficient to show that the building was erected for public school purposes by virtue of any public authority under either state or municipal regulation. Whether or not such a building would be subject to a mechanic's lien under the act of 1887, supra, not decided, as the question is not presented.

7. Assignments of error which seek to present questions here not mooted in the trial court, and which are of such a character as cannot be raised primarily in the appellate court, will not be considered.

8. Evidence in this case considered, and held sufficient to sustain the verdict of the jury.

COUNSEL

G. A. Hanson, for appellants.

Foster & Gunby, for appellees.

OPINION

MABRY J.

M. E. and W. B. Thompson, composing the firm of Thompson & Co., instituted proceedings by affidavit on the 7th day of March, A. D. 1888, in the circuit court for Polk county, against Jacob Summerlin, G. A. Hanson, and D. Hughes, as the board of trustees of summerlin Institute, of Bartow, Fla., to enforce a lien on the institute building for a balance of $5,267.47, alleged to be due for the erection of the same.

The affidavit states that Thompson & Co. are mechanics, contractors, builders, and material men, and that there is due said firm for work doen and material furnished during the latter part of the year 1887, and the months of January, February, and March, 1888, by Jacob Summerlin, G. A. Hanson, and D. Hughes, as the board of trustees of Summerlin Institute, of the town of Bartow, Fla., a balance of $5,267.47 on the contract price for the erection of two-story brick building of certain dimensions given, situated on block 14 of Summerlin school lands in said town, containing 1 1/2 acres, more or less, the property of said trustees of said institute. That said material was furnished for, and said labor done in, the erection of said building, under written contract with said trustees, and was completed and ended on the 3d day of March, 1888; and said firm claim a lien on said building and the real estate upon which it is situated as above described, and have filed their lien in the office of the clerk of the circuit court for said county, where it appears of record. Also that payment of said balance has been demanded of said trustees, and refused by them, within six months from the completion of said contract, to wit, since the 3d day of March, 1888, and that this affidavit is made in good faith, and not through malice or vexation, in order that said Thompson & Co. may obtain a writ of attachment issuing out of the circuit court for said county, returnable instanter, against said described building, and the interest of the owners therein, and the said real estate upon which it is situated, for the sum of said balance due, together with costs and reasonable attorneys' fees for foreclosing said lien, as by statute in such cases made and provided.

A bond was filed by Thompson & Co., and a writ of attachment and summons were issued, returnable instanter, by virtue of which the property described in the affidavit was levided upon, and said trustees summoned to answer. They appeared, and demurred to the affidavit on the grounds that it did not set forth the contract, nor recite the terms and conditions thereof, so that the court could decide or see what are the terms or conditions thereof. (2) It does not allege that the terms of the contract have been fully complied with according to its terms, or that all conditions procedent have been performed by plaintiffs. (3) It does not show that plaintiffs, as contractors and builders, furnished all the labor or materials for said building, or that they have paid for all such materials and labor as were furnished by other parties, so that all other liens save their own have been discharged. (4) It does not show how much was to be paid for said building, nor how much has been paid, while they only claim a balance as due; and that the affidavit 'does not set forth with precision any single fact that entitles them to the lien claimed.' This demurrer was overruled May 5, 1888, and defendants filed three pleas on the 12th of that month. The first plea alleges that defendants do not owe plaintiffs anything. The second one states that plaintiffs have not completed the building as they allege in their affidavit, and that nothing is due them on said contract or otherwise. The third plea alleges 'by way of cross action' that plaintiffs were indobted to defendants at the beginning of this suit in this: that plaintiffs entered into a written contract on the 15th day of March, 1887, by which they agreed to erect and complete the two-story building, referred to in their affidavit according to certain plans and specifications then before them, and to furnish all the materials, labor, and tools necessary therefor, and to furnish all the materials and workmanship of first class in every particular, and to have the building completed by the 1st day of October, to the satisfaction and acceptance of defendants. And it was agreed in said contract that G. A. Hanson, on behalf of the defendants, should constitute the building committee, and, if he and plaintiffs should disagree as to the quality of material, or the proper construction of any part of said building, then Charles L. Yorke, architect, should decide the issue, and his judgment should be final as to the matters of dispute, which includes all disagreements as to the amount and value of work for which payment was claimed. The defendants paid to plaintiffs the sum of $14,273.15, said payments being made up by the regular payments according to the contract to the fourth payment, and the remainder paid by the plaintiffs' request to parties furnishing materials, and all of said payments were made upon the faith of plaintiffs' promise to do said work according to the contract; notwithstanding all of which, plaintiff not only delayed said work, to the great injury of defendants, and notwithstanding each payment was made in advance of the time when it fell due by the contract, still the plaintiffs failed and refused, and still fail and refuse, to complete said building according to contract; and also failed, when notified by G. A. Hanson that the material used for wainscoting and finishing the windows, and also the workmanship on the same, was not satisfactory, and that the down spouts from the roof, the window heads, the hard oil finish, painting, and the finish inside the bell tower, were not acceptable, or in accordance with the contract, to correct the same, or to submit to the decision of Charles L. Yorke, the architect, as they...