FRED R. GUNBY, LILLIAN S. GUNBY, HIS WIFE, AND JOHN TRICE, APPELLANTS,
v.
JOHN H. DREW, APPELLEE
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This case involves a dispute over a construction contract lien. The Florida Supreme Court affirmed a lower court's decree awarding a builder a lien on real property for unpaid contract work, but reversed the award of attorney's fees for lack of proof of reasonableness.
The trial court's factual finding regarding the value of extra work was not clearly erroneous. The modification of the liquidated damages clause was supported by consideration and properly found. However, the award of attorney's fees was reversed because it was made without competent evidence of reasonableness, as required by statute and prior case law.
“There is such conflict in the testimony that we can not say the question of fact was erroneously decided.”
Court's standard for reviewing factual findings regarding the value of extra work performed under the contract.
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Join FLexlaw to unlock all legal intelligenceJohn H. Drew contracted with Fred R. Gunby to build a dwelling house. A dispute arose over extra work performed, delays in completion, and the applica…
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Cockrell, J.
The appellee filed his bill against appellants to enforce a statutory lien upon real estate for an alleged balance of seven hundred eighty-one and 25-100 dollars, with interest from September, 1895, growing out of a contract for building a dwelling house. A decree was rendered dated January 3rd, 1899, adjudging the sum of seven hundred fifty-nine and 93-100 dollars to be due from Fred. R. Gunby to the appellee for principal and interest, as well as the further sum of seventy-five and 99-100 dollars for solicitor’s fees, declaring said sums a lien and directing a sale of the property in default of payment. From this decree all the defendants appealed.
The first error questions the propriety of the court’s finding as to the value of certain extra work done on the house, not included in the contract. There is such conflict in the testimony that we can not say the question of fact was erroneously decided. City of Jacksonville v. Huff, 39 Fla. 8, 21 South. Rep. 774.
Appellants next contend the court should have allowed the sum of ten dollars per, day for forty-six days as a credit upon the amount claimed by appellee under a clause in the contract providing for deduction of tha’t sum if the building’should not be finished by a named date. The contract was not under seal, and the bill alleged that shortly after making it the parties modified it by an agreement that the clause should not be enforced, except as to the actual damage sustained. While there is conflict in the testimony upon this point, we think that produced by the appellee is sufficient to support a finding that the contract was so modified, and also that the modification of the contract was supported by a valuable consideration so as to bring it within the rule announced in Robinson v. Hyer, 35 Fla. 544, 17 South. Rep. 745. The testimony shows that some delay in finishing the house was occasioned by the extra work ordered by appellant Gunby, and that the rental value of the house between the time it should have been’finished and the time it was actually finished was forty dollars per month. The difference between the principal sum claimed and the principal sum allowed by the decree rendered is about $173. This sum .is amide to cover the rental value for delay in finishing the house, and also the sum of $112 claieind by Gunby to have been allowed him by appellee for certain work eliminated from the contract by subsequent agreement.
The next assignment of error is well taken. The court erred in allowing an attorney’s fee without proof of its reasonableness. The statute allows the prevailing plaintiff his reasonable attorney’s fees to be fixed by the court, not to exceed ten per cent, of the recovery. We have repeatedly held that where a mortgage provides for a reasonable attorney's fee. the record must show that the allowance thereof was made on proper testimony, and that it is error to decree a sum therefor without such proof. Long v. Herrick, 26 Fla. 356, 8 South. Rep. 50; Adams v. Fry, 29 Fla. 318, 10 South. Rep. 559; Taylor v. Brown, 32 Fla. 334, 13 South. Rep. 957. There is no difference in principle between the contractual and statutory liability, and we do not think the question an open one in this State.
The decree appealed from Is affimed, except as to the allowance of the attorney’s fee; and as to this it is reversed, with directions that the court ascertain by competent evidence, in accordance with its rules of practice, a reasonable attorney’s fee to be allowed the complainant.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Parker v. Dekle, 46 Fla. 452 (Fla. 1903)…ould have ascertained the amount by a mere calculation. Alexander v. McDow, 108 Cal. 25, 41 Pac. Rep. 24. However, in order to ascertain what would be a reasonable attorney’s fee in any case requires the introduction of testimony. See Gunby v. Drew, 45 Fla. 350, 34 South. Rep. 305, and authorities cited therein; First National Bank of Muscatine v. Krance, 50 Iowa, 235; Wyant v. Potterff, 37 Ind. 512; Orr v. Sparkman, 120 Ala. 9, 23 South. Rep. 829. An ex parte affidavit was not testimony, and the clerk had…
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Empire Drug Co. v. Smith, 78 Fla. 594 (Fla. 1919)…an alloAvance, in the decree, of an “attorney’s fee.” The bill claimed a reasonable sum for attorney’s fee, but we are unable to find in the record any evidence as to what would be a “reasonable attorney’s fee.” Upon the authority of Gunby v. Drew, 45 Fla. 350, 34 South. Rep. 305, it was error to decree any sum for an attorney’s fee without the proof thereof appearing in the record. As to the constitutionality of Section 2288, General Statutes, 1906, see Union Terminal Co. v. Turner [*598] Const. Co., 247…
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Porter v. The Sims Co. Ltd., 55 Fla. 504 (Fla. 1908)…le to vary the terms of a written contract, it is necessary that such subsequent agreement be founded upon a consideration. Phillips v. Longstreth, 14 Ala. 337; 17 Cyc. 736; Span v. Baltzell, 1 Fla. 301; Robinson v. Hyer, 35 Fla. 544; Gunby v. Drew, 45 Fla. 350. In the midst of the trial the defendant moved the court for leave to file an additional plea, but the court denied the motion, and this ruling is assigned as error. There was no error in such ruling. The proffered plea alleged a total failure of c…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Geo. W. Robinson & Co. v. Hyer Bros., 35 Fla. 544 (Fla. 1895)
- Adams v. Fry, 29 Fla. 318 (Fla. 1892)
- City of Jacksonville v. Huff, 39 Fla. 8 (Fla. 1897)
- Taylor v. Augusta F. Brown and C. M. Brown, 32 Fla. 334 (Fla. 1893)
- Long v. Herrick, 26 Fla. 356 (Fla. 1890)