THE PINE SCHOOL ASSOCIATION, A CORPORATION; NAN E. COPELAND, A WIDOW; AND J. K. SHINN AND COMPANY, A CORPORATION, APPELLANTS,
v.
J. M. BREWER, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The Florida Supreme Court reversed a trial court's overruling of a demurrer in a labor and material man's lien foreclosure action, holding that a subcontractor not in privity with the property owner must comply with statutory notice requirements to establish a valid lien. The bill failed to allege delivery of the required written notice to the owner and failed to show that any amount was due the contractor from the owner.
The trial court's order overruling the demurrer was reversed with leave to amend. A bill to foreclose a statutory labor and material man's lien must show substantial compliance with all notice requirements prescribed by statute, and a bill that does not allege delivery of the required written notice to the owner or does not show that any amount was due the contractor by the owner on account of the improvements is demurrable.
“A person entitled to acquire a lien, not in privity with the owner, * * * shall acquire a lien upon such owner's real or personal property as against him, and persons claiming through his death, and, purchasers and creditors with notice, by the delivery to him, or his agent, of a written notice that the contractor or other person for whom the labor has been performed, or the materials furnished, is indebted to the person performing the labor or furnishing the materials in the sum stated in the notice.”
Establishes the statutory basis for acquiring a lien by non-privity parties through written notice to the owner
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Pine School Association and other parties sued to foreclose an alleged labor and material man's lien on real estate. The complainant alleged perfo…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Written Notice Requirement cases and more on FLexlaw
Mathews, Commissioner:
This is a suit to foreclose an alleged labor and material man’s lien, by one not in privity with the owner. A general demurrer to the bill was overruled, and defendants appealed.
Section 5381, Comp. Gen. Laws of Florida, 1927, (Sec. 3518 Rev. Gen. Stats., 1920) provides:
"A person entitled to acquire a lien, not in privity with the owner, * * * shall acquire a lien upon such owner’s real or personal property as against him, and persons claiming through his death, and, purchasers and creditors with notice, by the delivery to him, or his agent, of a written notice that the contractor or other person for whom the labor has been performed, or the materials furnished, is indebted to the person performing the labor or furnishing the materials in the sum stated in the notice. ’ ’
Section 5381, supra, also provides:
"If a person who is performing or is about to perform by himself or others, labor, or is furnishing or is about to furnish materials shall so desire, he may deliver to the owner, or his agent, a written cautionary notice that he will do certain work, or will furnish certain materials, or both.”
Section 5381, supra, further provides:
"A lien shall exist from the time of the service of the notice for the amount unpaid on the contract of and by the owner to the contractor or person for whom the work was done or the material furnished. * * *
"* * * Any purchaser or creditor whose title, interest, lien or claim in or to the property shall be created or shall arise while the construction or repair of such property as aforesaid is in progress shall be deemed and held to be a purchaser or creditor with notice. ’ ’
The bill alleges performance of labor and furnishing of material by complainant upon the real estate involved herein, and that said labor was performed and said materials furnished the contractor under a continuing contract beginning with February 1, 1926, and ending January 29, 1927. It appears from the allegations of the bill that all of the defendants are purchasers and creditors with notice. The bill neither alleges delivery to the owner or his agent of a written cautionary notice that complainant would do certain work or would furnish certain materials or both, nor does it allege delivery to the owner or his agent of a written notice that the contractor was indebted to the complainant in any sum whatever. It is not made to appear that any amount is due the contractor by the owner on account of the improvements made by the contractor. "The lien acquired under Section 3518, Rev. Gen. Stats, of Florida, (Section 5381, Comp. Gen. Laws of Florida, 1927) is a statutory one grounded on the notice required thereby and is perfected by compliance with certain prescribed requirements. A bill to foreclose such a lien which does not show substantial compliance with all requirements of the notice is demurrable.” Harvey v. Fisher, 93 Fla. 587, 112 So. R. 560.
“A bill filed by a sub-contractor to enforce his lien, not praying discovery, but alleging facts upon which such lien is claimed, which does not make it appear, that at the time of the service of the notice* required by Sec. 1743, Rev. Stats. (Sec. 3518, Rev. Gen. Stats, 1920, Sec. 5381 Comp. Gen. Laws of Florida, 1927) any amount was due the contractor by the owner on account of the improvements made by the contractor for such owner, is demurrable.” Hathorne v. Panama Park Co., 44 Fla. 194, 32 So. R. 812.
The order overruling the demurrer is hereby reversed with leave to amend the bill within such reasonable time as may be fixed by the circuit judge, in default' whereof the case will be dismissed.
Per Curiam.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the order of the court below overruling the demurrer should be and the same is hereby reversed with leave to amend the bill within such reasonable time as may be fixed by the Circuit Judge, in default whereof the case will be dismissed.
Terrell, C. J., and Whitfield, Ellis, Strum, Brown, and Buford, J. J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Mass. Audubon Soc'y, Inc. v. Ormond Vill. Improvement Ass'n OF Ormond, 152 Fla. 1 (Fla. 1942)…ntical with the legatee named in the will and was intended as the beneficiary under it. The general rule is that misnomer of a legatee will not defeat a bequest where the one intended can be identified with certainty. Sheldon v. Powell, 99 Fla. 782, 128 So. 858; Caldwell National Bank v. Rickard, 103 N. J. Eq. 516, 143 Atl. 745. We think the evidence here is conclusive on this .point. . It is next contended that even if the testatrix intended [*3] that appellee receive Coacoochee Cottage it was not intend…
-
Henderson v. Usher, 118 Fla. 688 (Fla. 1935)…hat we have said suits of this character have statutory sanction in Chapter 7857, Acts of 1919, Laws of Florida, Sections 4953 and 4954, Compiled General Laws of 1927, which has been approved and upheld by this Court. Sheldon v. Powell, 99 Fla. 782, 128 So. 858. Much is said in the briefs of counsel to the effect that this is a proceeding in rem and being such it is not essential that the res be physically before the court. In other words if the court has power to or is in position to exercise control ove…
-
Pattillo v. Glenn, 150 Fla. 73 (Fla. 1942)…the testator may be accomplished if legally possible under applicable rules of law controlling as to the administration and ultimate use of the trust fund in such cases. See Lewis v. Gaillard, 61 Fla. 819, 56 So. 281; Sheldon v. Powell, 99 Fla. 782, 128 So. 858; Jordan v. Landis, 128 Fla. 604, 175 So. 241; 3 Scott on Trusts, Sec. 370, pp. 1981-1982; Matter of Robinson, 203 N. Y. 380, 96 N.E. 925, 927; Vanderbilt University v. Mitchell, 162 Tenn. 217, 36 S.W. (2nd) 83. The expense reasonably incurred in th…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hathorne v. Panama Park Co., 44 Fla. 194 (Fla. 1902)
- Harvey v. Fisher, 93 Fla. 587 (Fla. 1927)