Willcox v. Stephenson

• Decision Date: 03 November 1892
• Citation: 11 So. 659,30 Fla. 377
• Court: Florida Supreme Court
• Parties: WILLCOX v. STEPHENSON.

11 So. 659

30 Fla. 377

WILLCOX v. STEPHENSON.

Florida Supreme Court

November 3, 1892

Appeal from circuit court, Orange county; J. D. BROOME, Judge.

Action by Thomas Stephenson against James M. Willcox. Judgment for plaintiff, and defendant appeals. Affirmed.

Syllabus by the Court

SYLLABUS

1. A declaration on a written contract for the construction of a building, that sets out the contract in extenso, and that alleges generally 'that the plaintiff performed each and every requirement by him contracted as set forth in the contract,' is, under page 826, s 59, McClel. Dig., (Rev St. s 1045,) not subject to demurrer because it fails to allege specially the performance of some particular condition precedent arising out of such contract; the general allegation of performance above quoted being sufficient under this statute, to cover all conditions in the contract.

2. A motion to 'strike out' evidence that has been introduced in a cause must be predicated upon some feature of irrelevancy, incompetency, legal inadmissibility, or impertinency in the evidence itself that is struck at. Where evidence has been introduced for a plaintiff that in itself is pertinent, relevant, legal, and proper, so far as it goes towards making out the plaintiff's case, but which, in the conception of the opposite party, falls short, for the want of proof of other necessary facts, of making out the plaintiff's case, the proper practice is either to get an instruction from the court to the jury to the effect that no recovery can be had without proof of the missing facts, or else by a demurrer to the evidence.

3. Provisions in a building contract to the effect that the work shall be under the supervision and direction of a third person as architect, and that all work shall be subject to his examination and satisfaction, that what is paid for is in accordance with the plans and specifications, and that all payments were to be made upon estimates fixed by the architect, and that no money shall be due and payable unless certified to be due by the architect, are entirely valid, and binding on the contracting parties, and they will be held strictly to its terms, unless some legally recognizable excuse is presented for failure to comply therewith; and when such architect gives to the contracting builder a certificate showing that he is satisfied that the materials and work are in compliance with the contract, such certificate is binding and conclusive upon the owner, unless he can show fraud in its procurement, or such gross mistake therein as would amount to fraud were it permitted to prevail; and he will not be allowed to go behind such certificate, in a suit by the builder, to get the benefit of defects and shortcomings in the work and materials included within such certificate, in reduction of the contract price.

COUNSEL Massey & Willcox, for appellant.

W. R Anno, for appellee.

OPINION

TAYLOR J.

Thomas Stephenson, the appellee, sued the appellant, James M. Willcox, in the circuit court of Orange county in assumpsit for an alleged balance of $2,137.90, due him upon a building contract, whereby the plaintiff agreed to construct a building for the defendant known as the 'West End Hotel,' furnishing all the materials therefor, and whereby the defendant agreed to pay to the plaintiff the aggregate sum of $14,650. The trial resulted in a verdict and judgment for the plaintiff in the sum of $1,516. Motion for new trial being refused, the defendant brings the case here upon appeal.

The first assignment of error is the overruling by the court below of the defendant's demurrer to the plaintiff's fourth amended declaration.

The amended declaration questioned by this demurrer contained a special count upon the written contract entered into by the parties, setting forth the contract and a supplemental contract in extenso as part thereof, and contained also a general count in quantum meruit and quantum valebant for work done and performed, and materials for the same furnished, by the plaintiff. This contract provided that the plaintiff, as contractor, should well and properly erect the 'West End Hotel,' and outbuilding and water cistern and that on or before the 15th of November, 1885, the said buildings should be in all respects complete and finished in a perfect and workmanlike manner, and in every way ready to be furnished for use, and that all of said agreements should be performed to the satisfaction, and under the direction and personal superintendence, of the architect, one Charles K. Needham, according to plans and specifications made by him, that were also part of the contract. Payments were to be made to the plaintiff at stated periods, as the work reached specified stages in its erection. The contract contained the further provision that 'any and all payments shall be subject to the architect's examination and satisfaction that what is paid for is in accordance with the plans and specifications;' and all payments were to be made upon estimates fixed by the architect. A reservation of 15 per cent. of all estimates for payments was provided for until the final payment; such final payment being 'reserved until, to the satisfaction of the architect, such payment can be made, leaving the premises liable to no liens.' It was further provided 'that no money shall be due and payable unless so certified by the architect.' There was a further proviso 'that, should the contractor at any time during the progress of the work refuse, or be unable, through neglect, carelessness, sickness, or other disability, to comply with the provisions of the contract, then the defendant, his legal representatives or agent, are hereby given full right and power, ten days after such refusal or disability shall be made known to them, to enter upon and take possession of the premises, three days' written notice of their intention to do so having been previously given to the contractor or his legal representatives, and to provide all materials and labor requisite for completing what has been left undone of the specifications, cost thereof being deducted from the $14,000.' There was a further proviso that, 'should the contractor fail to complete the work by the time specified, through negligence or failure to use diligence, or any other fault on his part, he shall be chargeable with the sum of ten dollars per day for every day the building is delayed over and above the time designated for its completion, and this sum shall be deducted from the payment or payments yet to be made; but if the completion of the work is delayed through any unforeseen circumstances, against which the contractor could not guard, such penalty shall not accrue.' There are other provisions in the contract sued upon, but those quoted are all that need be noticed here. The declaration contained the averment, also, following immediately after the contract and supplement thereto, 'that the plaintiff performed each and every requirement by him contracted, as set forth in the original and supplemental contracts.' The objection to this declaration urged by the defendant's demurrer thereto, and here also in argument, is that it did not aver any certificate of the architect that the money sued for was due and payable. The contention in that, as the contract between the parties contained the provision 'that no money shall be due and payable unless so certified by the architect,' such certificate from the architect was a condition precedent to the right of the plaintiff to claim or sue for any of the contract money, and that the precedent procurement of such certificate should have been specifically alleged in the declaration. There can be no doubt that provisions like the one under consideration, incorporated into contracts for the erection of buildings and other works and structures, are fully recognized by the courts as being proper, and entirely valid and binding on the contracting parties; and that they will be held strictly to its terms unless some legally recognizable excuse is presented for the failure to comply therewith. Howard v. Railroad Co., 24 Fla. 560, 5 South, Rep. 356; Finegan v. L'Engle, 8 Fal. 413; Insurance Co. v. Lewis, 28 Fla. 209, 10 South. Rep. 297. But because compliance with such a provision is, unless legally excused, a condition precedent to the party's right to sue upon the contract, furnishes no reason, under the liberal statutes regulating pleadings in this state, why performance of such condition precedent should be specifically and specially averred in the declaration. On the contrary, our statute (McClel. Dig. p. 826, § 59; Rev. St. § 1045) provides that 'it shall be lawful for the plaintiff or defendant in any action to aver performance of conditions precedent generally, and the opposite party shall not deny such averment generally, but shall specify in his pleading the condition or conditions precedent the performance of which he intends to contest.' The plaintiff has conformed his pleading to this provision of our statute sufficiently as to every condition precedent in the contract, we think, when in his declaration he alleged that 'he had performed each and every requirement by him contracted, as set forth in the said original and supplemental contracts.' It is contended for the appellant (defendant) that this condition precedent in the contract was one that was to be performed by the architect, (viz., the furnishing of a certificate,) and not by the contractor, and that the general averment in the declaration that the contractor (plaintiff) had performed all things required of him by the contract did not cover something that was to be performed by the architect. This contention we think is a strained construction of the instrument and its provisions. The province of...