Westinghouse Elec. Corp. v. Carol Fla. Corp., 59-299

• Decision Date: 28 July 1960
• Docket Number: No. 59-299,59-299
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation, et al., Appellants, v. CAROL FLORIDA CORP., a Florida corporation, et al., Appellees.
• Court: Florida District Court of Appeals

Page 795

122 So.2d 795

WESTINGHOUSE ELECTRIC CORPORATION, a Pennsylvania corporation, et al., Appellants, v. CAROL FLORIDA CORP., a Florida corporation, et al., Appellees.

No. 59-299.

District Court of Appeal of Florida, Third District.

July 28, 1960.

Rehearing Denied Sept. 30, 1960.

Milton M. Ferrell, J. M. Flowers and Jack Gold, Miami, for appellants.

Sibley, Grusmark, Barkdull & King, Miami Beach, for appellees.

PEARSON, Judge.

The appellant, B. & W. Company, was the electric contractor for the construction of a Miami Beach hotel. The appellant, Westinghouse Electric Corporation is the assignee of Westinghouse Electric Supply Company, who supplied the electrical materials and equipment used by B. & W. on the hotel job. The appellee, Carol Florida Corp., was the owner of the hotel and Cal Kovens Construction Corp. was the general contractor. The appellee, Continental Casualty Company, is joined because the claims of lien involved were transferred to bonds.

Westinghouse Electric Corporation and B. & W. Company each filed a lien against the hotel. As plaintiffs they sought foreclosure of their liens against the appellees as defendants. At trial, at the close of plaintiffs' case, the chancellor dismissed the action for the failure of the plaintiffs to prove a prima facie case. This appeal followed and as to the claim of appellant, B. & W. Company, the order of dismissal is affirmed. The order is reversed as to the claim of lien of Westinghouse Electric Corporation.

The theory of the complaint is that the B. & W. Company, at the request of the owner, from time to time, furnished labor and materials exceeding $600,000 in value. The B. & W. Company credits upon the claim the sum of approximately $290,000 which was paid during the process of construction. The claim is for the reasonable value of the work, labor and materials furnished under, what it alleges to have been, an oral agreement without contract price. It is conceded that the claim of B. & W. Company includes the claim of Westinghouse Electric Corporation in an approximate amount of $58,000.

The position of the appellee is that on May 28, 1957, the plaintiff, B. & W. Company, addressed a letter to Cal Kovens Construction Corp., the general contractors on the job, which read as follows:

'We propose furnishing all the material and labor required to install electrical wiring, as we will discuss with you with skeleton specifications following, in the above subject Hotel for the sum of:

'Two Hundred Thirty-Four Thousand Dollars

'Specifications

'590 Rooms to have 15 outlets including radio (outlet only) and TV (outlet only) with chilled water, Air Conditioning with switch and thermostat in each room, 312 Hall and Exit outlets as required, Air Conditioning wiring and controls, 80 Cabanas with receptacle, switch, light and telephone each, Sound outlets as required, Switchboard, panels and feeders, Pool lighting wiring and ground lighting, Install all fixtures furnished by others, Lobby, Kitchen, and all puplic spaces, Store wiring, Neon and sign work by others,

'Items not included in our estimate:

'1. No lighting fixtures, step lights or pool lights,

'2. No neon tubing or signs,

'3. Empty raceway only for Sound-TV and radio outlets,

'4. No dimmer equipment included,

'5. No starting or control equipment for motors or Airconditioning included,

'6. Primary Service by F. P. & L.

'We intend using Aluminum feeders and Buss duct on this project.

'Temporary Service will be furnished from this point on as required. Standly service will be furnished by us.

'We will keep up with the progress of the job as long as same is being done on a 40 Hour week. If the job works overtime requiring our services, the additional time will be paid for by you at cost to us only.'

The appellee urges that this letter, upon acceptance, became a contract and that inasmuch as B. & W. Company has received some $290,000, their claim is thereby discharged. The discrepancy in price is explained as the cost of extras.

A review of all the evidence regarding the claim of the lienor, B. & W. Company, compels us to the conclusion that no error has been demonstrated upon the finding that it conclusively appeared that B. & W. Company was operating under a written contract and that said contract had been paid in full. The dismissal is further supported by the record in that it appears from the evidence of the plaintiff that as late as March 6, 1958, it executed a release of lien acknowledging full payments for all of its work to that date. An examination of the claim of lien filed by B. & W. Company reveals that the last work done by it was on or about March 25, 1958. In addition, the record in this cause reveals that the hotel in question was opened in December of 1957. Therefore it appears that the likelihood of some $300,000 worth of work being done after March 6, 1958, is rather small. We mention this situation as a factor in the support of the determination by the trial judge that it was not reasonable to suppose that work of this magnitude was undertaken upon a 'reasonable value' arrangement. However, the correctness of the trial judge's action in dismissing the complaint as to the claim of B. & W. Company can only be determined by a review of all the evidence which was before the chancellor and such a review reveals that the chancellor was justified in his conclusion that the claim of B. & W. Company was not proved by the testimony and evidence before him. Therefore the order dismissing the claim of the B. & W. Company is affirmed.

Upon a consideration of the claim of the ...