Winchester v. State for Use and Benefit of Florida Elec. Supply, Inc., 2545

Decision Date22 November 1961
Docket NumberNo. 2545,2545
Citation134 So.2d 826
PartiesLouis E. WINCHESTER and George R. Winchester, co-partners, d/b/a Winchester Construction Co., and Federal Insurance Company, Appellants, v. STATE of Florida for the Use and Benefit of FLORIDA ELECTRIC SUPPLY, INC., Appellee.
CourtFlorida District Court of Appeals

T. T. Turnbull, Turnbull & Hill, Tallahassee, for appellants.

Jack Champlin, Carlton, Whidden & Champlin, Tampa, for appellee.

ALLEN, Acting Chief Judge.

The appellants, defendants below, appeal from an order by the lower court denying their motion to dismiss for improper venue. Suit was brought in the name of the State of Florida for the use of Florida Electric Supply Inc., which occupies the status of a materialman in the instant controversy. Named as defendants were appellants Winchester Construction Company of Tallahassee, prime contractor on a public works project, its surety, Federal Insurance Company and Tom Dunn Electric Company, Inc., a subcontractor on the project. The parties will hereinafter be referred to as they appeared in the lower court.

Defendant Winchester entered into a contract with the State of Florida for the construction of buildings at Florida State University. Part of the project was subcontracted to defendant Dunn who purchased from plaintiff materials incorporated into the project and who later default in making payment.

Plaintiff, materialman, has entered into the supply contract with defendant, subcontractor, in Hillsborough County. This supply contract provided for payment in Hillsborough County. Plaintiff filed his suit in Hillsborough County against the defaulting subcontractor and joined as defendants the prime contractor and its surety. The suit was brought pursuant to § 255.05, F.S.A., which provides for enforcement of mechanics' and materialmen's liens against a prime contractor and its surety when construction work has been performed for the state. In the order appealed from, the lower court denied defendants' motion to dismiss on the grounds of improper venue and granted plaintiff's motion to strike defendant subcontractor's answer for failure to appear.

Defendants prime contractor and surety contend they could not properly be sued in Hillsborough County and that the proper venue is Leon County where the work was performed. Their argument is that the prime contractor was not a party to the supply contract which was entered into in Hillsborough County; and that since they are the real parties in interest in this case, § 255.05, F.S.A., shows on its face a legislative intent that suits brought thereunder may only be maintained against the prime contractor at the place where the materials were supplied.

Plaintiff states that § 255.05, F.S.A., is not a venue statute and that the general venue provisions in Chapter 46, F.S.A., are controlling. We agree with this contention in that Chapter 255, F.S.A., unlike the similar Federal Miller Act, 40 U.S.C.A. § 270a et seq., contains no provisions with reference to venue.

In 43 Am.Jur., Public Works and Contracts, § 206, it is stated:

'In the absence of any special statutory provision, the jurisdiction of an action on the bond of a surety of the public contractor is determined by rules governing the jurisdiction of ordinary civil actions for damages. * * *'

It is then stated in the following section, § 207, that under the Federal Statutes an action upon the payment bond of a contractor for federal work, given pursuant to the Miller Act of 1935, must be brought in the United States District Court for a district in which the contract was to be performed and executed.

Chapter 255, F.S.A., was patterned after the Miller Act and has for its purpose the protection of materialmen, laborers, etc., where public works are involved, to substitute for the lien usually given for construction projects. J. B. McCrary Company v. Dade County, 80 Fla. 652, 86 So. 612; and Collins, etc., v. National Fire Insurance Co. of Hartford, Fla.App.1958, 105 So.2d 190.

In a recent case, 1 the District Court of Appeal of Florida, First District, in an opinion by Judge Wigginton, held that in an action by a domestic corporation to recover money owed for materials furnished and services rendered in accordance with a contract, which did not specify place of payment, that the action was properly brought in the county where plaintiff had its principal place of business, as it would be implied that payments were to be made in such county.

The court, in the opinion written by Judge Wigginton, said:

'The rule governing the question here presented was clearly and unequivocally stated by the Supreme Court of this state in the Croker case. [Croker v. Powell, 1934, 115 Fla. 733, 156 So. 146] It was there held that where a contract involves the payment of money and no place of payment is expressly agreed on, it may be implied that payment is to be made where the payee resides or has an established place of business, and where payment under the contract may be made. Where there is an express promise to pay, and no place of payment is stipulated, the debtor should seek the creditor unless otherwise provided or agreed. In such cases the cause of action accrues where the default occurred,...

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  • Cilento v. State
    • United States
    • Florida Supreme Court
    • November 21, 1979
    ... ... Rafael CILENTO, Appellant, ... STATE of Florida, Appellee ... No. 53214 ... Supreme Court of ... State v. Gale Distributors, Inc., 349 So.2d 150 (Fla.1977); Atlantic Coast Line ... See Winchester v. State for use and benefit of Florida Electric Supply Inc., 134 So.2d 826 (Fla. 2d DCA 1961). But ... ...
  • Harvesters Group, Inc. v. Westinghouse Elec. Corp.
    • United States
    • Florida District Court of Appeals
    • June 7, 1988
    ...DCA 1983); Miller v. Knob Constr. Co., 368 So.2d 891 (Fla. 2d DCA), cert. denied, 378 So.2d 346 (Fla.1979); Winchester v. Florida Elec. Supply, 134 So.2d 826 (Fla. 2d DCA 1961); Board of Pub. Instruction v. Rood Constr. Co., 166 So.2d 701 (Fla. 3d DCA 1964). Cf. Coastal Caisson Drill Co. v.......
  • WSA INC. v. Stratton
    • United States
    • U.S. District Court — Southern District of Florida
    • February 17, 1988
    ...in interpreting Florida Statute section 255.05 governing payment bonds on public construction projects. See Winchester v. Florida Electric Supply, 134 So.2d 826 (Fla. 2d DCA 1961); Miller v. Knob Construction Co., 368 So.2d 891 (Fla. 2d DCA 1979); Gorman Co. of Fort Lauderdale, Inc. v. Fran......
  • Board of Public Instruction, Broward County, ex rel. and for Use and Benefit of Monmouth Plumbing Supply Co. v. Rood Const. Co.
    • United States
    • Florida District Court of Appeals
    • July 7, 1964
    ...we have turned to the Federal Miller Act, 40 U.S.C.A., § 270a, et seq., which is the basis for our Chapter 255. See Winchester v. State, Fla.App.1961, 134 So.2d 826; Union Indemnity Company v. State, 99 Fla. 656, 127 So. 307; and Kidd v. City of Jacksonville, 106 Fla. 312, 143 So. The Unite......
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