Tidewater Const. Co. v. Monroe County

• Citation: 146 So. 209,107 Fla. 648
• Parties: TIDEWATER CONST. CO. et al. v. MONROE COUNTY, for Use and Benefit of PHOENIX ASPHALT PAVING CO.
• Decision Date: 09 January 1933
• Court: Florida Supreme Court

146 So. 209

107 Fla. 648

TIDEWATER CONST. CO. et al. v. MONROE COUNTY, for Use and Benefit of PHOENIX ASPHALT PAVING CO.

Florida Supreme Court

January 9, 1933

Rehearing Denied Feb. 28, 1933.

Error to Circuit Court, Monroe County; Jefferson B. Browne, Judge.

Action by Monroe County, for the use and benefit of Phoenix Asphalt Paving Company, against the Tidewater Construction Company and others. To review an order granting plaintiff a new trial after verdict for defendants, defendants bring error.

Affirmed.

COUNSEL Evans & Mershon, M. L. Mershon, and O. B Simmons, Jr., all of Miami, for plaintiffs in error.

W. H Malone, of Key West, and McCune, Hiaasen & Fleming, of Fort Lauderdale, for defendant in error.

OPINION

BROWN J.

This case is before us on writ of error to the order of the court below granting plaintiff a new trial.

In November, 1925, Tidewater Construction Company entered into two contracts for the construction of certain roads and bridges in Monroe county, Fla., and at the same time the construction company, as principal, and Union Indemnity Company, as surety, executed two bonds to Monroe county, for the satisfactory performance of the contracts which bonds contained the additional obligation required by section 5397, C. G. L., securing the payment by said contractor 'to all persons supplying him, or them, labor, material and supplies, used directly or indirectly by the said contractor, contractors, sub-contractor or sub-contractors in the prosecution of the work provided for in said contract.' The contracts between the Tidewater Construction Company and the board of commissioners of Monroe county were subsequently assigned by the Tidewater Company to the Key West Construction Company, with the consent of the Union Indemnity Company and the board of county commissioners, which consent appears to have been necessary under the terms of the contracts. One of the contracts was for the construction of a boulevard around the eastern portion of the island of Key West, for the sum of $582,230, and the bond securing the execution of this contract was in the sum of $136,446.06. The other contract was for the construction of roads from Saddle Bunches to Sugar Loaf in said county, for the sum of $140,241.12, and the bond covering this contract was in the sum of $28,048.22.

Thereafter, on March 25, 1927, the Key West Construction Company and the Phoenix Asphalt Paving Company entered into an agreement by which the latter company was to proceed with the surface treatment with asphaltic oil of projects numbers 3 and 6, as soon as ready, upon the following basis:

'1. It is agreed that the Phoenix Asphalt Paving Company is to furnish their distributor, boiler and man in charge of same, on a basis of $75.00 per day, for every day or fraction of a day that said distributor is working on the above projects and not working, $50.00 per day (lay time). Actual working time is to begin when the said distributor starts on Project #6 and Lay Time meaning any time off for bad weather, delay in receiving oil from the car, or the road not being ready to receive oil. Lay Time not to be figured on Sundays.'

'2. The Key West Construction Company to furnish Ford Trucks for transporting sand and oil, and same to be figured on the basis of $12.00 per day per truck with driver and gas.

'3. All other expense for prosecuting the above work, such as oil, sand, labor, and any other supplies or expense are to be charged to the General Expense of the job, and at the completion of both of the above projects the net profits are to be divided one-half to the Phoenix Asphalt Paving Company and one-half to the Key West Construction Company.'

'4. All of the above to be figured on a six day work basis.

'5. It is agreed that Mr. J. F. McFarlin is to be in charge of the distribution of oil on these projects, and when on the job is to be paid on the basis of $15.00 per day and railroad and hotel expense, which is to be charged into the General Expense.

'6. It is agreed that the Phoenix Asphalt Paving Co. is to furnish the Key West Construction Co., a daily report at the end of each day.

'7. Lay Time to be figured only from the starting of work on Project #6 until its completion, and from the starting of Project #3 until its completion. In the event Project #3 is not ready when Project #6 is completed, an allowance of $170.00 for freight in and out is to be paid to the Phoenix Asphalt Paving Company and charged to General Expense.

'8. It is agreed that the Key West Construction Co. Inc., will furnish the financing for the payment of all items of purchase and expense each month and finances for all labor performed semi-monthly.'

Under the provisions of section 5397, C. G. L., Monroe county, for the use and benefit of said Phoenix Asphalt Paving Company, brought this action upon the two bonds against Tidewater Construction Company, Union Indemnity Company, and Key West Construction Company, the plaintiffs in error here, to recover for certain labor and materials alleged to have been furnished to Key West Construction Company by the Phoenix Asphalt Paving Company in the prosecution of the work under said contracts with Monroe county; $6,158.53 for labor and material on the boulevard work, and $1,902.04 on the roads from Saddle Bunches to Sugar Loaf. The jury returned a verdict for the defendants, and the plaintiff moved for a new trial, which motion was granted by the court below, and the defendants sued out this writ or error; the only assignment of error being that the court erred in granting said motion.

The main contention of plaintiffs in error is that the court erred in granting said motion, because the evidence failed to show a breach of said additional obligation of the bonds, in that, under the terms of the said agreement above quoted from, the Phoenix Asphalt Paving Company became a joint adventurer and coprincipal with, rather than a subcontractor or employee under, the Key West Construction Company in the performance of the contracts between the latter and Monroe county.

This court has had occasion to define what it takes to constitute the relationship of joint adventurers in Proctor v. Hearne, 100 Fla. 1180, 131 So. 173, and Willis v. Fowler, 102 Fla. 35, 136 So. 358.

Plaintiffs in error contend that the contract between the Key West Construction Company and the Phoenix Asphalt Paving Company embraced all the essential features of a contract of joint adventure; that the paving company was therefore not a subcontractor and not entitled to recover on the bonds given by the construction company to Monroe county; that the paving company acquired an interest in the contracts of the construction company with the county, and for the part which it agreed to perform it was to receive one-half of the profits; that such agreement contemplated that the construction company should build the roads to a certain point, and the paving company should finish them; that for the equipment it was to furnish and advance the paving company was to be repaid at a stipulated price per diem, and for the equipment to be furnished and advanced by the construction company, it was to be repaid at a stipulated price per diem, and all other expenses for the prosecution of the work and supplies necessary therefor was to be charged to the general expense of the job, and when the work was completed each of the parties was to receive one-half of the net profits to be derived from the whole of the two project. That while the agreement provided that the construction company should finance the undertaking, it contemplated that it should be repaid before any profits could be declared; that in the last analysis the paving company thus became a coprincipal with the contractor, the construction company, in carrying out that particular portion of the work called for by the contracts with Monroe county.

We hardly think this position can be fully sustained. We think it is apparent from the agreement beteen the paving company and the construction company that the paving company was concerned only with the job of oiling. It had nothing to do with the clearing, grading, or paving of the roads. There was no privity of contract between it and the county. The contract between the county and the Tidewater Company for the construction of the boulevard and roads had been assigned to the Key West Construction Company several months before the agreement was made between the Phoenix Asphalt Paving Company and the Key West Construction Company.

As shown by the cases above cited, the question of whether the...