Opinion
March 20, 1951. Rehearing Denied August 22, 1951.
Appeal from the Circuit Court for Hillsborough County, Harry N. Sandler, J.
Tom J. Landrum, Tampa, for appellants George A. Gibbs, Tampa, for Bigby Electric Co.
Jordan Jordan, Tampa, for Future Products Glass Co.
John R. Himes, Tampa, for P.L. Walker and Murphy-McDonald Builders Supply Co.
Hall Farnsworth, Tampa, for Walker Paint Hardware Co.
Mabry, Reaves, Carlton, Fields Ward, Tampa, for Bay Building Supplies Co.
Shackleford, Farrior Shannon, Tampa, for W.F. Fennell.
R.G. Tittsworth, Tampa, for B.M. Raiford, cross-appellant and appellee.
The appellants, plaintiffs below, entered into a building contract with Marion Builders, Inc., for the construction of a house at a contract price of $16,555.75. After a considerable amount of work had been done, the contractor abandoned the contract, and the plaintiffs proceeded to complete the construction under their own supervision. The plaintiffs then filed suit for declaratory judgment to determine the rights of the parties under the contract, including the several sub-contractors who had supplied labor and materials for the construction of the house, and naming as parties defendant all such sub-contractors and the general contractor, Marion Builders, Inc.
The lower court, after hearing the testimony of the parties, entered a final decree in which he credited the plaintiffs with the entire amount paid by them to the contractor prior to the abandonment of the contract, viz., $8,020.00, and with $4,946.50 as allowable cost for their completion of the building in accordance with the terms of the contract, including materials furnished after the plaintiffs took over the job, and further allowed plaintiffs $317.20 for "damages," leaving a balance due under the contract of $3,271.76 for pro rata distribution among the sub-contractors who had furnished labor and materials under contract with the general contractor prior to its abandonment of the job. The court in its decree also settled the rights of all the subcontractors, some of whose liens were pro rated on the basis of the $3,271.76 balance, and some of whom were awarded a lien for the full amount of the labor and materials furnished. The plaintiffs have appealed from this final decree, and one of the defendants, Bay Building Supplies, Inc., has filed a cross appeal.
It is contended by the defendant, Bay Building Supplies, Inc., on its cross appeal, that two payments, totalling $1,500.00, made by the plaintiffs to the contractor prior to its abandonment of the general contract, were not "properly paid," in that they were made prior to the time they were due and payable under the contract. There was no contention that such payments would not have been "properly paid," in accordance with the requirements of Subsection (8) of Section 84.05, Florida Statutes, same F.S.A., if paid at the time when such money would have been payable under the contract; and Subsection (10) of Section 84.05 specifically provides, in substance, that in determining whether or not a prior payment is "properly paid," such payment "shall be treated in the same way as if it were paid at the time when * * * such money would have been payable under the terms of the contract". The contention of the cross-appellant cannot, therefore, be sustained.
The appellant here contends, among others, that the lower court erred in decreeing liens in favor of two of the defendant sub-contractors who, at a time when plaintiffs were attempting to secure a loan to complete the construction, had signed an instrument entitled "Waiver of Liens" and in which such sub-contractors had waived "in favor of each and every party making a loan on said real estate" their right to a lien. The Chancellor stated in his final decree that "It is evident from a consideration of the waiver that it was signed for the purpose of securing a loan from the insurance company, the proceeds of which were to be used in payment of the said claims. The loan having failed to materialize, and the waiver having been conditioned thereon, it does not serve to waive or cancel the liens as contended for by the plaintiff." We find no error here. See Bruce Const. Corporation v. Federal Realty Corporation, 140 Fla. 93, 139 So. 209.
It is also contended by appellant that the lower court erred in decreeing that the total amount of the lien claimed by the defendant, Murphy-McDonald Builders' Supply Company, should be paid in full, rather than on a pro rata basis for that portion of the materials which this defendant had originally agreed to supply to the general contractor. It is true, as contended by appellant, that this court has held that "A subsequent promise by the owner to pay for materials previously furnished to the contractor, and upon the contractor's credit, cannot operate retroactively to create between the owner and materialman a state of privity which did not exist at the time the materials were furnished." Harper Lumber Mfg. Co. v. Teate, 98 Fla. 1055, 125 So. 21, 24. There was, however, ample testimony to support a finding that such materials were actually delivered to the job upon the credit of the appellant-plaintiffs, and not that of the general contractor. There was, therefore, no error in holding that this defendant was not limited to its pro rata share of the balance remaining due under the contract, as in the case of those sub-contractors whose materials had been furnished to and upon the credit of the contractor.
The remaining questions argued by appellants have been carefully considered, and no reversible error has been found.
We conclude that the Chancellor was eminently correct and properly determined the rights of the various parties hereto, and his final decree is, accordingly, affirmed.
SEBRING, C.J., and CHAPMAN and ADAMS, JJ., concur.