United Bonding Ins. Co. v. Dura-Stress, Inc.
| Decision Date | 20 January 1971 |
| Docket Number | INC,No. 70--436,DURA-STRES,70--436 |
| Citation | 243 So.2d 244 |
| Parties | UNITED BONDING INSURANCE COMPANY, an Indiana Corporation, Appellant, v.and B. E. McCall Construction Co., Inc., Appellees. |
| Court | Florida District Court of Appeals |
Richard D. Stoner, of Hoffman, Hendry & Parker, Orlando, for appellant.
Robert E. Austin, Jr., of Davis, McLin, Burnsed & Austin, Leesburg, for appellee Dura-Stress, Inc.
United Bonding Insurance Company appeals from a summary final judgment ordering that plaintiff Dura-Stress, Inc. recover from the defendants B. E. McCall Construction Co., Inc. and United jointly and severally the sum of $5,152.79.
Dura-Stress filed its complaint against McCall and its surety United for damages sustained as a result of a breach of a construction subcontract by McCall in failing to pay the full amount due Dura-Stress. United contends here that Dura-Stress failed to meet the burden of proof that the materials were 'delivered' to the site of the bonded construction. This contention is without merit. Under the Florida Mechanics' Lien Law, 'furnishing' materials to the site of the improvement contemplates and includes 'delivery' of such materials. F.S. § 713.01(6) F.S.A. Dura-Stress alleged in its complaint that:
'On or about October 1, 1968, Plaintiff and Defendant McCall entered into an agreement by the terms of which Plaintiff was to furnish certain labor and material to a project referred to as Lakeside Manor Apartments, located at 2500 Lee Road, Winter Park, Florida, owned by John H. Hillebrandt and Mary A. Hillebrandt, his wife, for which Plaintiff was to have received a contract
price of FORTY TWO THOUSAND FIVE HUNDRED THIRTY-ONE AND NO/100 ($42,531.00) DOLLARS.'
The complaint further alleged that:
'All conditions precedent of said contract and conditions precedent to bringing this action have been performed or have occurred.'
United's answer admitted ownership of the Lakeside Manor Apartments by the Hillebrandts. It stated that it was without knowledge as to the remaining allegations of the complaint and generally denied them. A denial of performance or occurrence was not made specifically and with particularity.
RCP 1.120(c), 30 F.S.A., provides:
Also, in his affidavit filed in support of the motion for summary judgment, J. Ashton Gray, President of Dura-Stress, stated:
'That plaintiff has fully performed all that was required of it under its contract with defendant B. E. McCALL CONSTRUCTION CO., INC.'
The performance alleged in both the complaint and the affidavit was furnishing labor and materials to the Lakeside Manor Apartments, the site of the bonded construction. The lower Court was correct in concluding that Dura-Stress met this issue by both the affidavit and the complaint.
United also attacked the supporting affidavit of Mr. Gray as being insufficient because 'it nowhere states that it (the affidavit) is made of his own personal knowledge'; that it was therefore hearsay evidence not admissible in a Court of law. RCP 1.510(e), 31 F.S.A., provides that...
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