Opinion
January 4, 1952. Rehearing Denied February 11, 1952.
Appeal from the Circuit Court for Manatee County, W.T. Harrison, J.
Willis Goodrich, Bradenton, for appellants.
Dye Dye, Bradenton, J. Ben Fuqua, Palmetto, and Scott Register, Bradenton, for appellee.
The plaintiffs, appellants here, sued the defendant, appellee now, for damages to a building that was moved from land needed for a state roadway. The propriety of the judgment for the defendant depends on the construction of the arrangement between the property owners and the county.
The preface to the agreement and the "agreement" itself are in such abbreviated form that it seems more simple to quote them in full than to analyze them in our own words:
"Grantor: Jack Smith and Lillian Smith
"Several buildings on property — two on right-of-way. Buildings numbered consecutively from West to East:
"Frame residence of owners may not have to be moved.
"Double garage. Owner will move if in way or arranging buildings.
"Frame construction of 3 or 4 rooms. Owners cannot see any way of arranging house on property where moved. Willing to sell for ................ $2,500.00.
" Duplex of cement block. Will have to be moved approximately 30 feet east and north. Possibility of building having to be taken down and rebuilt.
"Flowing well on right-of-way. Casing would have to be cut off far enough below surface to be piped underground and reconnected to present water system. Well to remain for exclusive use of property owner.
"Tile will have to be put in road ditch across property.
"All water and sewerage connections made.
"Agreement
"State of Florida
"County of Manatee
"In consideration of the execution and delivery or right-of-way deed No. 29, the Board of County Commissioners in and for Manatee County, Florida, by and through its chairman, does hereby agree to perform according to terms and recommendations above set forth, provided, however, in the event State Road No. 684 is abandoned or not built and said deed is not executed and delivered, this agreement will be void and of no effect.
"Dated this 3rd day of April, 1950.
"(Seal) Board of County Commissioners Manatee County, Florida By s/ H.C. Slaughter Chairman
"Attest:
"s/ Lloyd M. Hicks "Clerk"
(Italics ours.)
The parts we have italicized formed the basis of the appellants' allegations that the appellee agreed to move the house and to "save the Plaintiffs from all costs and damages incurred in performance of the said contract." It was then charged that the appellee by its agent, the contractor we shall presently mention, undertook to move the building, and that "because of said moving the said building was irreparably damaged, the floors of the said building were cracked and sunken, the walls of the said building were cracked and ruined, and the said building is in fact a total loss and is beyond repair." The only breach averred is a failure properly to "perform its obligation in the moving of the said building." But it is impossible to tell from the instrument alone just what the county was to do with respect to the cement-block building in order to make the site available for the right of way.
We cannot accept the premise of counsel for appellants that the contract was so certain and unambiguous, the intention of the parties should be deduced from the language used without resorting to extrinsic evidence. Perhaps it is clear that the appellants' house was either to be moved or taken down and rebuilt because it was located on land proposed to be deeded for highway purposes, but what was meant by the county's promise to perform is another matter. It will have been noted that there were "recommendations" about buildings of appellants that were not even on the land needed for the right of way, inasmuch as it was specified that only two were so located.
This seems to be an instance where parol evidence would have to be employed to determine with any satisfactory degree of certainty what the parties were undertaking, a procedure that the judge followed when he considered the affidavits filed at the time the motions for summary judgment were made by all the parties.
We turn now to these affidavits to discover what was done after the memorandum in such obscure language was signed by the county. From the affidavits of the Chairman of the Board of County Commissioners, signatory on the memorandum, as well as his successor, it appears that the job of moving appellants' building was awarded by the county to an independent contractor, after the owners had elected to have the building moved instead of razed and rebuilt. The county evidently agreed to pay the cost of either process and, after appellants had made their choice, engaged an experienced mover to move the house, promising to pay him an agreed amount when he furnished the owners' signed statement expressing satisfaction with the work accomplished. The contractor was required to supply a performance bond.
The day the memorandum was signed the owners conveyed so much of their property as was needed for the right of way; the building was moved — and damaged in the process.
Appellant, Jack Smith, swore that the county agreed that if the building could not be successfully moved, the county would rebuild it to appellants' satisfaction; but it cannot be inferred from the circumstances, much less found in the memorandum, that he could choose to have it moved, and if that proved unsuccessful because of incorrect advice about its construction he would then be entitled to have it rebuilt. Moreover, there is nothing here to indicate that upon damage from moving, the county would be liable for the cost of the house.
The mover's story, taken from his affidavit, was that the "actual agreement" for moving was made with appellant and not with Manatee County. He discussed, he continued, the practicability of moving the building intact, and finally agreed that this could be done, basing his conclusion on the representation that it was composed of reinforced concrete and would hold together. The owner consented to the removal with the sole reservation that it be done at county expense.
The statements by the contractor are in harmony with the recital in the memorandum about the "possibility of building having to be taken down and rebuilt," the versions of the county commissioners, and the terms of the contract between the county and the mover which we shall now analyze. The county agreed to pay for relocating all houses — there were many buildings besides appellants' situated on the proposed highway — and to pay for each as the respective owner expressed satisfaction with the work completed. It was recited that the purpose was to get the buildings off the right of way "as directed by the various owners."
The owner denied any representation by him about the reinforcement of the concrete in the house, but this statement was rejected by the judge.
As we have said, the memorandum standing alone is so indefinite and incomplete that it does not serve as much of a guide to the responsibilities, rights, and obligations of the county and owner with reference to the subject matter of this controversy. But from that instrument and the sworn statements in the record we are able to get a fairly accurate picture of the transaction.
In exchange for a deed to right of way the owner was to have his house relocated outside the area in the same condition as at the original site. He parted with his property but did not receive the consideration he and the county intended. Were we to stop here, it would seem that he was entitled to recover on the theory that there having been a breach of contract, nothing remained but to fix his damages. But if the story is finished a different conclusion is inescapable.
The owner knew the county, a political subdivision, was not equipped to move or rebuild houses and would have to secure the services of some one familiar with such work. The actual consideration for the contract was the payment by the county of an amount sufficient to cover the costs of the moving. The appellant, Jack Smith conferred with the one the county selected to perform the service and, apparently without objection to his qualifications, elected removal instead of rebuilding. Though the owner disputes the statements of the contractor about the type of construction of the building, we think the court was warranted in accepting the version of the latter because from the very nature of a concrete-block house, the method of moving it bodily would depend on its reinforcement.
This conclusion is bolstered by the very allegations we have quoted from the complaint. There was no charge that damage resulted from the carelessness or inexpertness of the contractor, whom the pleader designated the county's "agent," but only that the building was damaged by the moving.
Unquestionably this allegation was proved, but the facts lead to the conclusion that the condition was chargeable to the appellant, Jack Smith, who misrepresented the type of construction and chose the method of relocation and not to the appellee.
As soon as the building reached the new site and the extent of damage was discovered, further work on the project was stopped and the owner was advised what had happened. He forbade the contractor to proceed, and this order was obeyed. Even then the contractor offered to restore the building to its former condition, but the owner refused and demanded that another contractor be engaged to do that. He rebuffed all proposals calculated to restore the building and to put him in a position as near as possible to the one that obtained beforehand. The contractor stated that he stood ready to perform his contract; and that the building was not irreparably damaged but could be easily restored by pouring a new concrete floor and repairing the walls.
From the whole record we reach the conclusion that the owners were the victims of the inexact statements and unyielding position of one of them and that they should not be rewarded with a judgment against the county for the value of the house and the loss of rental.
The judgment is affirmed.
SEBRING, C.J., and TERRELL and MATHEWS, JJ., concur.