Tallahassee Variety Works v. Brown

Decision Date25 August 1932
Citation144 So. 848,106 Fla. 599
PartiesTALLAHASSEE VARIETY WORKS v. BROWN et al.
CourtFlorida Supreme Court

Rehearing Denied Nov. 4, 1932.

On rehearing.

Former judgment reversed, and the judgment appealed from modified and, as modified, affirmed.

For former opinion, see 138 So. 759.

TERRELL J., dissenting. Appeal from Circuit Court, Leon County; J. B Johnson, Judge.

COUNSEL

W. J. Oven and James Messer, Jr., both of Tallahassee, for appellant.

William Blount Myers, of Tallahassee, for appellees.

OPINION

ELLIS J.

Tallahassee Variety Works, a Florida corporation, in February, 1929, exhibited its bill in chancery in the circuit court for Leon county against B. W. Brown in his own right and in the right of his wife, Allie Yawn Brown, and against the latter to declare a materialman's lien upon lot numbered 6 of block B of Highland Park subdivision in the city of Tallahassee. An amended bill was filed in March, 1929.

The amended bill alleged that in June, 1928, Allie Yawn Brown owned the lot in fee simple as her separate statutory property; that B. W. Brown, acting as agent for his wife, entered into a contract with R. H. Hancock with her knowledge and consent for the construction of a 'bungalow' upon the described lot (a copy of the contract is attached to the bill and by apt words made a part of it); that the building was erected; that during the construction of the building the contractor purchased from the complainant certain building material (a copy of the bill for such materials is attached to the amended bill of compaint and by apt words made a part of it); that complainant began furnishing the materials on June 21, 1928, and concluded on the 19th day of September of the same year.

That bill was made out against B. W. Brown by R. H. Hancock for house on corner of Beard avenue and Cherry street, Highland Park subdivision, which is the same property described in the bill of complaint. The items consist of materials such as brick, lime, plaster, paint and paint brush, lattice material, moulding, chair rail, stops and other items of small value. It also contains two other items as follows: 'Millwork according to plans & specifications $487.00' and 'Extra material from mill $82.50' furnished August 10th. Credits appear upon that bill under date of July 7th and 28th aggregating $228.98 by checks by B. W. Brown. The balance claimed to be due is $600.38, or $30.88 more than the aggregate of the two items above mentioned for 'millwork' and 'extra material' supplied on August 10th.

The bill also alleges that B. J. Temple was employed by the contractor, with the knowledge and consent of Brown and his wife, to paint the building; that Temple procured from the complainant, with the knowledge and consent of the defendants, certain paint material, the first item of which was furnished on September 18 and the last item on November 8, 1928. A copy of that bill for painting materials is attached to the bill of complaint and made a part of it. That exhibit shows that the bill for materials was made out to B. J. Temple for B. W. Brown, for Brown house on the same lot, and shows the amount to be $92.95, and consists entirely of paint materials. The claim made is that a balance of $692.33 on both bills for material and 'millwork' is due and unpaid.

There is no explanation of what 'millwork' consists, whether of materials or labor or both. The bill alleges that complainant presented to B. W. Brown on September 12th, presumably in 1928, a 'bill for material then due,' and Brown said he would wait until the house was completed and would then pay off all bills at once. On October 2, 1928, complainant wrote Brown inclosing a copy of the statement made out to Temple for paint, and stated that the amount was $62.90, and the amount was 'posted to October 1st.' The copy of the statement furnished to Brown did not include items furnished from October 8th to November 8th, inclusive, amounting to $30.05 and consisting of four items.

The bill also alleges that, after the completion of the building, and at all times during its construction, Mrs. Brown and Mr. Brown, as her agent, had knowledge that complainant was furnishing 'said material' for the construction and painting of the house, and, after the construction of the building, Brown, as agent of his wife, was furnished with a full itemized bill of 'said building material, paints and paint supplies.' That reference was to Exhibits B and C to which reference is above made.

A copy of the contract between Brown and his contractor Hancock was attached to the bill of complaint, and by appropriate words made a part of it. That contract provided that the contractor would provide all materials and labor for the construction of the building; that the work was to be done under the direction of the owner, and provision was made for settling disputes by arbitration. No alterations were to be made except upon the written order of the owner. The owner could condemn materials and cause them to be removed. If the contractor refused or neglected to supply materials, necessary or skillful workmen, the owner after three days' written notice to his contractor should have the power to supply the materials and workmen and prosecute the work to completion and deduct the cost thereof from any sum then due under the contract. The contractor was to complete the work in ninety days.

The amount agreed to be paid to the contractor for the construction of the house was $3,000. The contractor was required to furnish to the owner weekly his 'payrolls for such work' and biweekly 'bills for material purchased,' which the owner agreed to pay. On completion of the work, the owner should pay to the contractor the difference between the 'total of the payrolls and materials and bills paid by him' and the sum of $3,000 in final settlement of the work and all extras as may have been agreed upon between the owner and contractor.

That clause clearly contemplated that the owner should pay to the contractor the amount of such bills for material and labor as the construction of the house progressed. The contractor agreed to save the owner harmless from all liens for labor and materials, and the owner should during the progress of the work procure insurance upon the building in construction against loss from fire. There was no provision in the contract for a bond to be given by the contractor for the faithful completion of the work. The bill, however, alleges that on November 16, 1928, 'Brown called together the bondsmen of said contractor and exhibited all bills for work and material, including that of your orator.'

The bill alleges that, after the completion of the building, demand was made upon Brown as agent for his wife for the payment of the amount claimed to be due by the complainant, the amount being $693.33, but payment was declined on the ground that the contractor had exceeded the contract cost of the building. It is also alleged that the complainant did not have knowledge while materials were being furnished by it of the limit placed upon the cost of the building's construction, and further alleged that the defendants required the contractor to 'make certain changes in construction and material that materially increased the cost of said building over the price for which the contract was originally made,' and that the 'reasonable value of said building as constructed is $4,500.00 and said property is no under contract for sale at $6,500.00 to one F. C. Schlemmer.'

The allegations immediately preceding, which are contained in paragraph 5 of the bill, particularly that part under quotation marks relating to changes made and the value of the building, and 'no' contract for sale, appear to have no relevancy to the case, because it is not clearly alleged that the so-called changes were made with the knowledge or consent of Mrs. Brown further than to allege that they were required by defendants, and the court is no more authorized to append to the word 'no' italicized the letter 'w' than it is to append the letter 't,' or to place the word after the word 'under' immediately following. The clerk certified that the transcript is a correct transcript of the record.

There may be, however, the inference drawn from such allegations that, since the changes made in the building as originally planned cost $1,500, and complainant's claim is for only $693.33, non constat but that complainant's materials were supplied for such alterations, which were not requested in writing, and that Mrs. Brown was not party to the purchase of such materials from complainant.

The bill alleges that complainant caused to be filed its notice of 'materialman's lien,' and the same was duly recorded on November 17, 1928; that the defendants, after the filing of the notice of lien, 'paid off and discharged' both the contractor and person employed as painter, ignoring complainant's notice of lien and its bills for materials. The bill alleges also that Brown did require of the contractor a bond in the sum of $3,000 for the faithful performance of the contract, but that the bond does not in any way protect or indemnify laborers who worked upon the building or materialmen furnishing supplies, but that the bond was in force at the time defendants paid the contractor.

The bill prayed for the declaration of a lien upon the property and for enforcement of the same.

A copy of the notice of lien is attached to the bill as Exhibit E, and by appropriate words made a part of it. The notice asserts a lien upon the land owned by Mrs. Brown for 'materials furnished by said Tallahassee Variety Works, Inc. to said married woman to construct a dwelling house on said lands.'

The foregoing lengthy analysis of the bill of complaint...

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