Turner Const. Co. v. Union Terminal Co.

• Decision Date: 18 January 1916
• Docket Number: 2759.
• Citation: 229 F. 702
• Parties: TURNER CONST. CO. v. UNION TERMINAL CO. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

229 F. 702

TURNER CONST. CO. v. UNION TERMINAL CO. et al.

No. 2759.

United States Court of Appeals, Fifth Circuit.

January 18, 1916

Sam R Marks and Richard P. Marks, both of Jacksonville, Fla., for appellant.

P. H Odom and J. T. G. Crawford, both of Jacksonville, Fla., for appellees.

Before PARDEE and WALKER, Circuit Judges, and NEWMAN, District Judge.

WALKER Circuit Judge.

The bill in this case, filed September 19, 1913, and which sought the enforcement of a builder's or mechanic's statutory lien, alleged the execution by the plaintiff, a New York corporation, and the defendant Union Terminal Company (hereinafter referred to as the owner), of a written contract for the construction by the former for the latter of a building, a copy of which contract, dated November 21, 1912 was made an exhibit to the bill; that shortly after the date of that instrument, to wit, on the 10th day of December, 1912, and in compliance with the terms of that instrument, the plaintiff commenced the work of construction, and proceeded with it, furnishing all necessary material and labor, until the building was completed in July, 1913; that from time to time during the course of the work and in accordance with the contract provisions the plaintiff submitted to the owner statements and estimates of the amounts due and to become due for labor and materials under the contract, and from time to time during the course of the work the owner paid to the plaintiff various sums, aggregating $140,695.89, but that there is still due and owing to the plaintiff a large balance, to wit, $81,046.40. The owner's amended answer to the bill averred, in addition to other matters of defense and of set-off, that the plaintiff--

'is a corporation for profit, organized and existing under the laws of the state of New York; that the contract upon which recovery is sought in this suit affects the liability of said complainant; that said complainant was not transacting business in the state of Florida on or before the 1st day of June, 1907; that said complainant has not filed in the office of the Secretary of State of the state of Florida a duly authenticated copy of its charter or articles of incorporation; that said complainant has not received from the Secretary of State a permit to transact business in the state of Florida.'

The evidence in the case was taken while the pleadings were in the condition above indicated. It was disclosed by that evidence that on the 11th day of January, 1913, the Secretary of State of Florida issued a permit to plaintiff showing a compliance by it with the provisions of the act of the Legislature of Florida, approved June 1, 1907 (Acts of 1907, c. 5717), entitled 'An act to prescribe the terms and conditions upon which foreign corporations for profit may transact business, or acquire, hold or dispose of property in this state'; and it was also disclosed by the evidence that the conduct of both the plaintiff and the owner while the work on the building was progressing after January 11, 1913, unequivocally showed that each of them was relying on the written instrument which they had signed as embodying the contract by which their dealings were governed. After the evidence was closed, the owner was permitted, over objections made by the plaintiff, so to amend its answer as to set up the plaintiff's noncompliance with the requirements of the statute above mentioned until after the date of the contract and the commencement of the work thereunder. With the objections to this amendment the plaintiff submitted also a motion to strike it, if allowed; one of the grounds stated in that motion being the following:

'Defendant, having allowed complainant to proceed, and having accepted the benefit of the contract, with full knowledge of all material facts, is now

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