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whether it is essential to the existence of a sen, owner, and P. F. Kennard, agent of owner, lien to state the amount of the account in the on the 23d day of May, A. D. 1921. written cautionary notice required by section

"T. Marshall. 3518, Revised General Statutes, the former At 11:10 a, m, Dr. T. Truelsen, and was overruled by the latter.

“At 11:25 a. m. Mr. Phil Kennard."

Appeal from Circuit Court, Hillsborough

[1-3] It is contended that the notice is inCounty; F. M. Robles, Judge.

sufficient in two respects: First, it does not

contain a statement that the person furnishSuit by the Southern Lumber & Supply ing the material intends to claim a lien upon Company against Thomas Truelsen and wife. the premises of the owners appellants; and, From a decree for plaintiff, defendants ap- second, that the amount or sum claimed is peal. Affirmed.

not stated. McKay & Withers, of Tampa, for appel- By the express provisions of the statute the lants.

lien is acquired and "exists" from the "time Thomas E. Lucas, of Tampa, for appellee. of the service of the notice." The giving of

the notice operates to establish the lien. This WEST, J. This is a suit to foreclose an al- ) is its legal effect under the statute. It would leged statutory lien on real estate for ma- therefore be superfluous to state that the ma. terial furnished contractors who were erect. terialman intends to claim a lien upon the ing a building for appellants, defendants be property. The statute does not expressly relow. The bill of complaint was demurred to. quire, in a notice of this kind, the amount of The demurrer was overruled. This appeal is the account to be stated. When the materialfrom that order.

man delivers “to the owner or his agent a In the brief of counsel for appellants it is written cautionary notice that he will said that the sole question involved is wheth

furnish certain material” he is not er the form of notice served by the appellee required to state in detail the “certain” maon appellants is a sufficient compliance with terial referred to. Reed v. Southern Lumber the provisions of the statute to entitle the & Sup. Co., 73 Fla. 886, 75 South. 29. Yet appellee to a lien on the premises of the own

nevertheless, in order that the lien may "exers appellants.

ist” and its protection be afforded, the person The statute provides that,

who “is furnishing or is about to furnish ma

terials" is required to "deliver" the "written "If a person who is performing or is about cautionary notice to the owner, or his agent." to perform, by himself or others, labor, or is But in the very nature of things it may not be furnishing or is about to furnish materials shall possible, at the time of giving the "caution80 desire, he may deliver to the owner, or his agent, a written cautionary notice that he will ary” notice, to accurately state the amount of do certain work, or will furnish certain mate the account which in whole or in part is to rials, or both. A lien shall exist from the time subsequently come into existence and which of the service of the notice for the amount un- may be augmented or diminished from time paid on the contract of and by the owner to the to time as material is furnished under the contractor or the person for whom the work contract or running open account and paywas done or the material furnished.” Section ments made and credits entered thereon. 3518, Rev. Gen. Stat.

This court has held that a lien for labor or

material supplied may be acquired "under a It is admitted that the form of notice fol- contract or a running open account that is lows substantially the language of section designed to continue until the completion 3518, but it is contended that it does not com- of the construction.” People's Bank v. Ar. ply with the intent and proper construction buckle, 82 Fla. 479, 90 South. 458. If the lien of this statute, and does not put the owner on may be acquired by supplying material under notice that the appellee intends to claim a a contract or "a running open account" lien. The notice is as follows:

which may vary in amount from day to day, -"Tampa, Florida, May 21st, 1921.

it may also exist, as the statute provides, "To Dr. T. Truelsen, Owner of Lot Six, Block upon the delivery of a "written cautionary

Ten, West Hyde Park Subdivision, Accord-notice" to the owner or his agent in favor of ing to the Map or Plat of said Subdivision a person who is "furnishing or is about to Recorded in the Public Records of Hills- furnish material" under a contract or "a runborough County, Florida:

ning open account," the exact amount of “You will please take notice that the South- which may not be ascertainable at the time ern Lumber and Supply Company is furnishing, of service of the cautionary notice and which and is about to furnish materials, to wit, lumber and mill supplies, to W. W. Hawkins, contrac- | may vary from time to time “until the comtor, for the erection of a building on the above- pletion of the structure.” described premises.

[4] The confusion no doubt arises from an “Southern Lumber and Supply Company, expression in Ramsey v. Hawkins, 78 Fla. "By T. E. Lucas, Secretary.

189, 82 South. $23, to the effect that the pur"I hereby certify that a copy of the within pose of the notice is to advise the owner of cautionary notice was delivered to Dr. T. Truel the amount required to pay for such material

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(100 So.) that the owner may protect himself by re BROWNE, J. (dissenting). In Ramsey V. serving a sufficient amount to pay therefor. Hawkins, 78 Fla. 189, 82 South. 823, we held The case of People's Bank v. Arbuckle, supra, without qualification thatwas subsequently decided, and to the extent that there is inconsistency the former was

“The purpose of the cautionary notice is to

advise the owner that material is being furoverruled by the latter.

nished the contractor, and the amount required The order is affirmed.

to pay therefor, that the owner may protect WHITFIELD, P. J., and TERRELL, J., for such material. It is a warning to the own.

himself by reserving a sufficient amount to pay concur.

er, advising him to take heed as it were." TAYLOR, C. J., and ELLIS and BROWNE, (Italics mine.) JJ., concur in the opinion.

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On Rehearing.

Section 3518, Revised General Statutes

1920, provides: PER CURIAM. The organic right to acquire, possess, and protect property is not in “A person entitled to acquire a lien, not in vaded by the operation of a statute giving a privity with the owner, as aforesaid, shall acmaterialman's lien upon property on which quire a lien upon such owners' real or personal the owner is having a building constructed or property as against him, and persons claiming repaired, upon the delivery to the owner or

through his death, and purchasers and credihis agent of a written cautionary notice that tors with notice, by the delivery to him, or his

agent, of a written notice that the contractor or the materialman will furnish to the contrac- other person for whom the labor has been per: tor material for use in the building. If the formed, or the materials furnished, is indebted statutory lien causes delay or inconvenience to the person performing the labor or furnishin building transactions, the remedy is legis. ing the materials in the sum stated in the nolative, not judicial. There are no specific or- tice; but if a person who is performing or is ganic provisions as to the requisites of stat- about to perform, by himself or others, labor, utory liens; and the courts cannot add to

or is furnisbing or is about to furnish materials the statutory requirements.

shall so desire, he may deliver to the owner,

The statute
merely provides that the materialman may he will do certain work, or will furnish

or his agent, a written cautionary notice that deliver to the owner or his agent "a written

materials, or both."
cautionary notice that he will furnish certain
materials.” Upon the service of such notice
the statute gives to the materialman a lien

This provides for the acquisition of a lien,
"for the amount unpaid on the contract of where the labor has been performed, or the
and by the owner to the contractor.” The materials furnished,” and also by “a person
statutory words "will furnish certain mate who is * furnishing or is about to
rials” do not by intendment require the furnish materials.”
amount claimed for the materials to be stat-

Where the labor has been performed or the ed in the “cautionary notice." The amount materials furnished, the lien is acquired by of the materialman's claim may be contin- the mechanic or materialman giving the nogent and is a matter of proof. The notice in tice provided for in the statute, which notice this case stated the "certain materials” to be the statute requires, shall state “the sum" of "lumber and mill supplies" for the erection the indebtedness for which the lien is of a building on described land.

claimed. In Ramsey v. Hawkins, 78 Fla. 189, 82

It is worthy of consideration that, where a South. 823, the cautionary notice stated the lien is sought to be acquired by persons peramount of the claim, and the opinion of the forming or about to perform labor, or who court had reference to the fact. It was not

are furnishing or are about to furnish matethere held that a cautionary notice would be rials, the statute uses the words “labor" and ineffectual to create a lien under the statute “materials” without qualification or descripunless the amount of the claim be stated in tion, but in the cautionary notice required it the notice

. The statute giving the lien does specifies “certain work” and “certain matenot require the amount of the claim to be

rials." (Italics mine.) stated in the cautionary notice, the delivery

Under the decision in this case, no descripof which notice to the owner or his agent tion of the materials--no statements of their sives the lien under the operation of the stat- quantity, and no intimation of their cost or ute

. The cautionary notice delivered to the value is required to be given in the caution-
owner in this case complies with the statute ary notice. The effect of this is to make
creating the lien, and the owner was not jus- meaningless the word “certain” before the
tified in ignoring the notice upon the theory words “labor” and “materials.”
that its contents were not a compliance with

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The rule that, in construing statutes, mean

ing should be given to every word, seems to Rehearing denied.

be ignored by the decision in this case.

The materials furnished can only be "cerTAYLOR, C. J., and WHITFIELD, ELLIS, tain” by giving the owner some intimation of WEST, and TERRELL, JJ., concur,

the quantity and character of the materials,

.

the statute.

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or, the "amount required to pay therefor," as we held in Ramsey v. Hawkins, supra.

MILLER V. QUIGG, Chief of Police. In Reed v. Southern Lumber & Supply Co., 73 Fla. 886, 75 South, 29, we held that the ex

(Supreme Court of Florida, Division A.

May 12, 1924.) pression “furnished certain materials" "does not require" that the “certain” materials re

(Syllabus by the Court.) rred to shall be stated in detail. In that Municipal corporations 597–Ordinance decase, as in the case of Ramsey v. Hawkins, fining tent cities and requiring water-closets supra, the cautionary notice set out the and sinks held valid. amount of the claim, and thus complied with Under the provisions of its charter empow. the statute, by taking account of the word ering it “to do all things whatsoever neces"certain,” because the materials may be sary or expedient for promoting or maintain. made certain, either by stating them in de ing the general *

* health

of tail or by stating the amount of the claim.

the city or its inhabitants,” and “to provide for By the decisions in these two-cases we inhabitants of the city, make regulations to

the preservation of the public health of the eliminated the naming of the material as an

secure the same," an ordinance of the city of element of certainty, and we now eliminate Miami defining a “tent city" as “any structure "the value of the materials." This leaves or inclosure, the roof of which is of silk, cotnothing "certain," or that may be made "cer- ton, canvas or light material, and which is tain."

used by one or more people as a human babitaGiving to the word “certain” the meaning tion," and "tent cities," as "any lot or site on that I think the statute contemplates har- which are located two or more tents,” and monizes the provisions of section 3518 by re- providing that tents or tent cities which are

located on a street in which there is a public quiring one who has already furnished and

sewer shall be provided with water-closets conone who is about to furnish materials to do nected with the public sewer, one for each sex the same thing; that is, inform the owner of in the ratio of one for each sex for each five the amount of the claim.

tents, and one slop sink for each five tents or With regard to the person who has fur- portions thereof, is a reasonable and valid ex. nished materials, the statute requires the ercise of the city's power to preserve and proamount to be stated, and there seems to be no mote the public health. reason for discrimination, and I think the statute does not contemplate it. The dis

Error to Circuit Court, Dade County; crimination can only be sustained by treating Mitchell D. Price, Judge. the word "certain” as of no significance. Proceedings between W. F. Miller and H. .

There seems to be more reason why a no- Leslie Quigg, Chief of Police of the City of tice of a lien, where the materials are yet to Miami. Judgment for the latter, and the forbe furnished, should state the amount, than mer brings error. Affirmed. where they have already been furnished, be

Twyman & Scott, of Miami, for plaintiff in cause in the latter instance the owner would be able to ascertain with some degree of cer

J. W. Watson, Jr., of Miami, for defendant tainty the amount of the materialman's claim in error. from the character and quantity of the materials furnished, whereas in the instance

BROWNE, J. The only question involved where the material is yet to be furnished he here is the power of the city of Miami to rewould have no way of ascertaining even ap- quire the owner, occupant, or lessee, of any proximately the amount.

property within the corporate limits, upon The construction, therefore, that I place which a tent city is located to comply with upon the statute, by giving significance to the certain sanitary regulations. word "certain,” makes it both harmonious Section 1 of the ordinance complained of and in accord with reason.

defines a "tent city" to mean “any structure The wisdom of the rule laid down in Ram- or inclosure, the roof of which is of silk, cotsey v. Hawkins is palpable. Except for it a ton, canvas or light material, and which is materialman whose claim amounts to a very used by one or more people as a human habi. small sum could tie up everything that was tation,” and “tent cities,” to mean “any lot due contractors, as the owner would have no

or site on which are located two or more way of knowing how much to withhold,

tents." whereas, if the amount is stated in the no

Section 2 provides thattice, he could protect himself by withholding "No tent or tent city shall be erected or enough to meet the materialman's claim and maintained without a permit from the departpay the contractors the difference as the ment of public welfare." work progressed.

Section 3 is as follows: I think the petition should be granted, and

"Tents or tent cities which are located on a on rehearing, the rule laid down in Ramsey street in which there is a public sewer shall v. Hawkins adhered to.

be provided with water-closets as hereinafter For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

error.

(100 SO.) provided, which must be connected with said, is not authority for the position taken by the public sewer. In such cases there shall be plaintiff in error. In that case the court held one water-closet for each sex in the ratio of that the provision of the charter that auone for each sex for each five tents or por- thorized the city "to regulate the constructions thereof, and in addition thereto, one slop tion, location and arrangement of earth clossink for each five tents or portions thereof. In case a tent or tent city shall be located ets and privies” did not give the city authoron a street in which there is no public sewer, ity to prohibit the proper use of earth closets dry toilets, thoroughly water tight and fitted and privies in any part of the city.

It was with a tight fitting self-closing cover so as to there held that the "power to regulate does make the receptacle contained in such dry not include power to prohibit." closet fly and vermin proof, and so ventilated

A mere casual reading of the case of Mathat all odors shall be discharged therefrom to lone v. City of Quincy, supra, and the ordithe outside of such toflet at a height of not less nance of the city of Miami, will show the then twelve feet, shall be provided in the fol distinction between what was held in that lowing ratio: One dry toilet for every two tents. No tent shall be located more than one case, and what the Miami ordinance seeks to hundred (100) feet from the water-closet or dry accomplish. toilet which serves such tent."

The challenged ordinance is a reasonable

and valid exercise of the city's power to preThe petitioner was tried in the municipal serve and promote the public health, and the court of Miami, upon an affidavit charging judgment is affirmed. him with violating sections 2 and 3 of the ordinance "by maintaining a tent city in the TAYLOR, C. J., and ELLIS, J., concur. city of Miami without a permit to do so, from WHITFIELD, P. J., and WEST and TERthe department of public welfare,' and by RELL, JJ., concur in the opinion. failing and refusing to provide a water-closet for each sex in ratio of one for each sex for each five tents and failure to provide slop sinks for each five tents." The petitioner was found guilty and sen

JAMES V. MACH et al. tenced to pay a fine of $100 or serve 50 days in jail. Failing to pay the fine, he was con

(Supreme Court of Florida. April 22, 1924.) fined in the city jail, and sued out writ of babeas corpus. Upon hearing he was re

(Syllabus by the Court.) manded to the custody of the sheriff, and the Appeal and error (123—Judgment affirmed case is here on writ of error.

where appellato court equally divided. The plaintiff in error in his brief says

Where the members of the appellate court that

are equally divided in opinion as to whether a "He rested his case in the court below, and judgment on writ of error should be reversed rests his case here, squarely upon the proposi- or affirmed, and there is no prospect of a tion that the city of Miami had no authority to change of judicial opinion, the judgment should pass the ordinance in question."

be affirmed, so that the litigation may not be

unduly prolonged. There seems to be ample authority in its charter for the city to enact the ordinance.

Error to Circuit Court, Osceola County; Paragraph Z of section 3 empowers the c. O. Andrews, Judge. city “to do all things whatsoever necessary or

Proceedings between S. P. James and expedient for promoting or maintaining the

Ernest Mach and another, copartners, doing general

health

• of the

business as Mach Bros. Judgment for the city or its inhabitants."

latter and the former brings error. Affirmed. Paragraph W of article 3 empowers the city, among other things, “to provide for the Alexander Akerman and W. B. Crawford, preservation of the public health of the in- both of Orlando, for plaintiff in error. habitants of the city, make regulations to se- Johnston & Garrett, of Kissimmee, for decure the same."

fendants in error. During the winter or tourist season large numbers of persons flock to Florida, and fill PER CURIAM. This cause having been our hotels, although many live in tents in lo considered by the court, and Mr. Chief Juscalities known tent cities, camping tice TAYLOR, and Mr. Justice ELLIS, and grounds, tourist camps, etc.

Mr. Justice BROWNE being of opinion that A large number of people living in proxim- the judgment should be reversed, while Mr. ity in tents, without sanitary regulations, is Justice WHITFIELD, Mr. Justice WEST, very apt to produce sickness, and it is to pro- and Mr. Justice TERRELL are of opinion mote and preserve the public health that the that the judgment should be affirmed, and ordinance was enacted.

there being no prospect of a change of judiThe case of Malone v. City of Quincy, 66 cial opinion, the judgment should be affirmed Fla. 52, 62 South. 922, Ann. Cas. 1916D, 208, on the authority of State ex rel. Hampton v.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

as

McClung, 47 Fla. 224, 37 South. 51; Quigg, PER CURIAM. In an action of ejectment Chief of Police, v. Radel (Fla.) 97 South. brought against W. J. Albritton a judgment for 380, and it is so ordered.

the plaintiff, King Lumber & Manufacturing All concur.

Company, was rendered, and an execution predicated upon such judgment was issued

against Serena Elizabeth Albritton, which exAnnie CROSS, Petitioner for Her Husband, ecution, being unauthorized to be issued in the

cause, should have been quashed. James G. Cross, Plaintiff in Error, v. John

Reversed.
M. ADAMS, as Sheriff of Nassau County,
Defendant in Error.

WHITFIELD, P. J., and WEST and TER(Supreme Court of Florida, Division B.

RELL, JJ., concur.
April 22, 1924.)
Error to Circuit Court, Nassau County; De
Witt T. Gray, Judge.

Wm. A. Hallowes, Jr., and Miles W. Lewis, both of Jacksonville, and J. B. Stewart, of Fernandina, for plaintiff in error.

J. W. BRASELTON, Appellant, v. H. A. Rivers Buford, Atty. Gen., and J. B. Gaines,

WAYNE and Susie J. Wayne, Appellees. Asst. Atty. Gen., for defendant in error.

(Supreme Court of Florida, Division B. PER CURIAM. This cause baving hereto

Jan. 28, 1924.) fore been submitted to the court upon the transcript of the record of the judgment here

Appeal from Circuit Court, Alachua County; in, and briefs and argument of counsel for the A. V. Long, Judge. respective parties, and the record having been seen and inspected, and the court being now C. R. Layton and T. B. Ellis, Jr., both of advised of its judgment to be given in the Gainesville, for appellant. premises, it seems to the court that there is no F. Y. Smith, of Alachua, for appellee. error in the said judgment. It is therefore considered, ordered, and adjudged by the court PER CURIAM. This cause coming on to that the said judgment of the circuit court be, be further heard, and it appearing that in a and the same is hereby, affirmed.

foreclosure suit against H. A. Wayne and

Susie J. Wayne, his wife, an appeal was taken WHITFIELD, P. J., and WEST and TER- from an interlocutory order sustaining a sepRELL, JJ., concur.

arate plea of the defendant Susie J. Wayne, and that subsequently to the entry of such appeal the suit was dismissed as to Susie J.

Wayne, and a motion to reinstate the cause as Serena Elizabeth ALBRITTON, Claimant, to Susie J. Wayne was denied without preju. Plaintiff in Error, v. KING LUMBER & dice to an application to amend the bill as MFG. CO., Defendant in Error.

to the defendant H. A. Wayne, and no ap(Supreme Court of Florida, Division B.

peal having been taken from the decree dis. May 1, 1924.)

missing the suit as to Susie J. Wayne, or from

the order denying the motion to reinstate as Error to Circuit Court, Hardee County; to her, the appeal from the interlocutory deGeorge W. Whitehurst, Judge.

cree is ineffectual and is hereby dismissed. W. D. Bell, of Arcadia, for plaintiff in error.

Trcadwell & Treadwell, of Arcadia, for de- WHITFIELD, P, J., and WEST and TERfendant in error.

RELL, JJ., concur.

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