Not overruled or negatively treated on appealinfoCoverage
Supreme Court of Florida, Division AFeb 21, 1950
44 So. 2d 75 (Fla. 1950)

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January 31, 1950. Rehearing Denied February 21, 1950.

Appeal from the Circuit Court for Dade County, Marshall C. Wiseheart, J.

Alfred Kreisler, Miami, for appellant.

Ruff Ready, Miami, for appellee.

The final decree which is here reviewed was entered in a suit in the court below to foreclose a lien for labor and materials furnished by plaintiff-appellee to defendant-appellant, the owner of the building improved by said labor and materials. The lower court found that defendant was indebted to plaintiff in the principal sum of $652, plus interest and costs, which sums were decreed to be a lien on the real estate involved. The defendant complains on this appeal, among others, that the evidence was insufficient to support a judgment in the principal sum of $652. We think that this contention is sound.

The entire work called for by the contract was not completed by plaintiff, due to no fault of its own. The Special Master found that the plaintiff had completed 80 per cent of the work called for by the contract, and awarded it 80 per cent of the contract price of $815, or $652. This was error. There was no evidence that the work actually performed was 80 per cent of the work contracted to be performed. It was shown only that the plaintiff's costs generally ran 80 per cent of the contract price, and that the plaintiff generally required the payment of 80 per cent of the contract price at this particular stage of completion of a job, in order to make sure its costs for the entire job were covered. The plaintiff should have submitted proof as to the value of all labor, services (including supervision) and materials actually furnished to the defendant; and the cause, for this reason, should be remanded for the taking of such testimony.

The other assignments of error have been carefully examined, and we find no harmful error therein.

The decree is, accordingly, affirmed in all respects, except as to the amount due the plaintiff for labor, services and materials, as to which the decree is reversed and remanded for further proceedings in accordance herewith.

Affirmed in part and reversed in part.

ADAMS, C.J., and TERRELL, THOMAS, and ROBERTS, JJ., concur.