Treadway v. Terrell

• Decision Date: 04 January 1935
• Citation: 158 So. 512,117 Fla. 838
• Parties: TREADWAY et al., State Road Department v. TERRELL et al.
• Court: Florida Supreme Court

158 So. 512

117 Fla. 838

TREADWAY et al., State Road Department v. TERRELL et al.

Florida Supreme Court

January 4, 1935

En Banc.

Original proceeding in prohibition by C. B. Treadway and others constituting the State Road Department of Florida, against Glenn Terrell, umpire, and C. Moriarty and another arbitrators, as and constituting a board of arbitration, and another. On motions to quash rule in prohibition.

Rule in prohibition quashed.

COUNSEL

Roy P. Hamlin, of Tavares, B. A. Meginniss, of Tallahassee, Paul Carter, of Marianna, and Waller & Pepper of Tallahassee, for petitioners.

Henry P. Adair, Clarence G. Ashby, and John M. McNatt, all of Jacksonville, for respondents.

J. Turner Butler, George C. Bedell, and Robert H. Anderson, all of Jacksonville, amici curiae.

The following organic provision, statutes and proceedings are pertinent to the matters involved in this clause:

'Provision may be made by general law for bringing suit against the State as to all liabilities now existing or hereafter originating.' Section 22, art. 3, Constitution; State ex rel. v. Love, 99 Fla. 333, 126 So. 374.

'Chapter 15022--(No. 384). An Act Authorizing Suits At Law and in Equity to be Brought and Maintained Against The State Road Department of the State of Florida on Any Claim Which Has Arisen Since June 7, 1923 Under Contract For Work Done or Which May Hereafter Arise Under Constract For Work Done and Limiting the Time in Which Such Suits May Be Brought, and Providing That Such Suits Against Said State Road Department Shall be Cognizable Only in the Courts of The State of Florida and Providing How Process Shall be Served Upon Said State Road Department.

'WHEREAS, Chapter 9312, Laws of Florida, Acts of 1923, entitled 'An Act relating to the State Road Department imposing certain duties upon said Department and conferring certain powers upon the same,' approved June 7, 1923, in and by Section 4 thereof, provided that suits at law and in equity might be maintained against the State Road Department on any claim arising under contract for work done; and,

'WHEREAS, the Supreme Court of Florida, by its opinion filed February 14, 1930, did determine that the authority so conferred by said Section 4 of said Act to maintain such suits was not expressed in the title to said Act, and that for that reason the authority so granted by said Act to maintain such suits was ineffectual; and,

'WHEREAS, the intention of the Legislature in and by Section 4 of said Act was to authorize such suits to be brought against the said State Road Department in the manner and form therein stated from and after the time when said Chapter 9312, Laws of Florida, took effect, and it is in the public interest that such legislative intent should be effective, notwithstanding the said defect in the title to said Chapter 9312, Laws of Florida, Acts of 1923; Now, therefore 'Be It Enacted by the Legislature of the State of Florida:

'Section 1. Suits at law and in equity may be brought and maintained against the State Road Department of the State of Florida on any claim which has arisen since June 7, 1923, under contract for work done, or which may hereafter arise under contract for work done. A claim shall be deemed to have arisen since June 7, 1923, in any instance where the work done was completed after said date. Provided, that no suit sounding in tort shall be maintained against the said State Road Department.

'Section 2. Suits against the State Road Department under this Act upon any claim arising prior to the time when this Act shall become a law can only be commenced within one year from and after the time when this Act shall become a law.

'Section 3. Suits against the State Road Department under this Act upon any claim arising after the time when this Act shall become a law can only be commenced within two years from and after the time of the completion of the work done.

'Section 4. All actions and suits brought against the State Road Department under the provisions of this Act shall be cognizable only in the courts of the State of Florida. Service of process in suits against said Department shall be made upon the Chairman of the said State Road Department, or, in his absence, upon two other members of said Department.

'Section 5. This Act shall take effect upon its becoming a law.

'Became a law without the approval of the Governor.' Chapter 15022, Acts of 1931.

Provisions of the Compiled General Laws:

'All parties to any controversy before or after suit thereupon may make a rule of court of any arbitration to which they may desire to submit such controversy.' Section 4552 (2855), Comp. Gen. Laws.

'An arbitration may be made a rule of court by the parties filing in the court which would have jurisdiction of the controversy if it were not submitted to arbitration, a statement in writing signed by each party of the agreement of matters to be submitted to arbitration, and the name of the arbitrator or arbitrators, and an umpire selected by them. The clerk of the court (or the court if it have no clerk) shall record said statement in the minutes of the court, and thereupon the arbitrator or arbitrators and umpire shall have the powers hereinafter specified.' Section 4553 (2856), Comp. Gen. Laws.

'The award shall be in writing, signed by a majority of the arbitrators, or arbitrators and umpire, shall state the adjudication in full, and shall be filed and recorded in the court of which the arbitration is a rule.' Section 4556 (2859), Comp. Gen. Laws.

'If any award be entered of record, so much thereof as decrees the payment of money by either party shall have the force and effect of a judgment from the day of entering said award, upon which execution may be issued as in cases of judgment duly entered; and so far as the award relates to the performance of any other lawful act, the party failing to comply with said award shall be considered in contempt, and by the order of court shall be committed to prison, there to remain without bail until he shall comply with the order of the court in the premises.' Section 4560 (2863) Comp. Gen. Laws.

In prohibition proceedings it appears that the following declaration was filed December 7, 1931, and other proceedings had.

OPINION

'In the Circuit Court of the Second Judicial Circuit of Florida in and for Leon County, Florida, #1884.

'C. F. Lytle, Plaintiff,

vs.

The State Road Department of the State of Florida, Defendant.

'Action at Law Damages $250,000.00 'Declaration

'C. F. Lytle, plaintiff herein by Knight Adair, Cooper & Osborne, his undersigned attorneys, sues the State Road Department of the State of Florida, defendant herein, for:

'1. Money payable by the defendant to the plaintiff for work done and materials furnished by the plaintiff for the defendant at the defendant's request.

'2. And for a second count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money paid by the plaintiff for the defendant at the defendant's request.

'3. And for a third count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money received by the defendant for the use of the plaintiff.

'4. And for a fourth count the plaintiff sues the defendant for money payable by the defendant to the plaintiff for money found to be due from the defendant to the plaintiff on accounts stated between them.

'5. And for a fifth count the plaintiff sues the defendant for that heretofore on, to-wit, the 2nd day of March, A. D. 1925, by contract bearing said date made by and between the plaintiff and the defendant, a copy of said contract being filed herewith and marked 'Exhibit A' and made by reference a part hereof, the plaintiff agreed to do certain work (hereinafter referred to as 'said work') by furnishing the materials and performing the labor described and specified in said contract, including such extra work as might be deemed necessary or desirable by said defendant to complete fully the work as contemplated by said contract, for and in consideration of the payment by the defendant to the plaintiff of the sums of money described and specified in and by said contract at the times specified in said contract, that thereafter the plaintiff did all of 'said work' and the same, having been theretofore approved by the Engineer of the defendant according to said contract, was, prior to the commencement of this suit, duly and finally accepted by the defendant; that the amount which became due and payable by the defendant to the plaintiff for 'said work' so done as aforesaid was the sum of One Million, Sixty-Six Thousand Five Hundred Thirty-four and 74/100 Dollars ($1,066,534.74) and the defendant became and was indebted to the plaintiff in said sum therefor; and although the plaintiff has performed all conditions prescribed on his part, and all events have happened, and all times have elapsed, to entitle the plaintiff to the payment of said sum, and the plaintiff has often requested the defendant to pay the same, yet the defendant has not paid said sum or any part thereof, except the sum of Eight Hundred Fifty-six Thousand, Five Hundred Thirty-four and 74/100 Dollars ($856,534.74) paid by the defendant to the plaintiff on or prior to the 18th day of July, A. D. 1927.

'And the plaintiff claims Two Hundred Fifty Thousand Dollars ($250,000.00)

'Knight, Adair, Cooper & Osborne,

'Attorneys for Plaintiff.

'Bill of Particulars Hereto Attached.

'Copy of Contract sued upon filed herewith.'

'The State Road Department of the State of Florida, Dr. To C. F Lytle

Amount owing on construction of bridge across Manatee River between Bradenton and Palmetto arising from non-payment for one-third of the contents of concrete seals in

...