UNITED BONDING INSURANCE COMPANY, AN INDIANA CORPORATION, APPELLANT,
v.
DURA-STRESS, INC. AND B. E. MCCALL CONSTRUCTION CO., INC., APPELLEES

Fla. 2d DCA | 1971-01-20
No. 70-436
HOBSON and MANN, JJ., concur.
243 So. 2d 244 Florida District Court of Appeal, Second District (1971) Caution
Cited by 23 cases

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Holding

The court held that the surety failed to meet the burden of proof that materials were not delivered to the site, and the plaintiff's complaint and affidavit sufficiently established performance.


Headnotes

[1] Under the Florida Mechanics' Lien Law, "furnishing" materials to the site of an improvement contemplates and includes "delivery" of such materials.

[2] A general averment that all conditions precedent have been performed or have occurred is sufficient in a pleading, and any denial of performance or occurrence must be mad…

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Facts & Procedural History

Dura-Stress sued McCall and its surety, United, for breach of a construction subcontract. United contended Dura-Stress failed to prove materials were …

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Opinion of the Court
PIERCE, Chief Judge.

PIERCE, Chief Judge.

United Bonding Insurance Company appeals from a summary final judgment ordering that plaintiff Dura-Stress, Inc. recover from the defendants B. E. McCall Construction Co., Inc. and United, jointly and severally the sum of $5,152.79.

Dura-Stress filed its complaint against McCall and its surety United for damages sustained as a result of a breach of a construction subcontract by McCall in failing to pay the full amount due Dura-Stress. United contends here that Dura-Stress failed to meet the burden of proof that the materials were “delivered” to the site of the bonded construction. This contention is without merit. Under the Florida Mechanics’ Lien Law, “furnishing” materials to the site of the improvement contemplates and includes “delivery” of such materials. F.S. § 713.01(6) F.S.A. Dura-Stress alleged in its complaint that:

“On or about October 1, 1968, Plaintiff and Defendant McCall entered into an agreement by the terms of which Plaintiff was to furnish certain labor and material to a project referred to as Lakeside Manor Apartments, located at 2500 Lee Road, Winter Park, Florida, owned by John H. Hillebrandt and Mary A. Hillebrandt, his wife, for which Plaintiff was to have received a contract *246price of FORTY TWO THOUSAND FIVE HUNDRED THIRTY-ONE AND NO/lOO ($42,531.00) DOLLARS.”
The complaint further alleged that:
“All conditions precedent of said contract and conditions precedent to bringing this action have been performed or have occurred.”

United’s answer admitted ownership of the Lakeside Manor Apartments by the Hillebrandts. It stated that it was without knowledge as to the remaining allegations of the complaint and generally denied them. A denial of performance or occurrence was not made specifically and with particularity.

RCP 1.120(c), 30 F.S.A., provides:
“In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specific cally and with particularity.”

Also, in his affidavit filed in support of the motion for summary judgment, J. Ash-ton Gray, President of Dura-Stress, stated:

“That plaintiff has fully performed all that was required of it under its contract with defendant B. E. McCALL CONSTRUCTION CO., INC.”

The performance alleged in both the complaint and the affidavit was furnishing labor and materials to the Lakeside Manor Apartments, the site of the bonded construction. The lower Court was correct in concluding that Dura-Stress met this issue by both the affidavit and the complaint.

United also attacked the supporting affidavit of Mr. Gray as being insufficient because “it nowhere states that it [the affidavit] is made of his own personal knowledge”; that it was therefore hearsay evidence not admissible in a Court of law. RCP 1.510(e), 31 F.S.A., provides that supporting and opposing affidavits shall be made on personal knowledge.

While it is true that the affidavit in question did not specifically state that it was made on personal knowledge, the facts were stated positively, and not merely as a matter of belief, or “to the best of af-fiant’s knowledge and belief”, cf. Hahn v. Frederick, Fla.1953, 66 So.2d 823; P & T Electric Co. v. Spadea, Fla.App.1969, 227 So.2d 234, writ discharged, Fla., 235 So.2d 510; 3 Am.Jur.2d, Affidavits, §§ 21, 22. It is generally held that when an officer of a corporation makes an affidavit in its behalf, it is not necessary that he should state the sources of his knowledge, or information and belief. 3 A.L.R. 132, 140. An officer must be possessed of the requisite knowledge, but such knowledge on his part is presumed. 2 Am.Jur.2d, Affidavits, § 5. Under F.S. § 608.40, F.S.A. the president of a Florida corporation is required to be a director. The directors of a corporation are chargeable with knowledge of corporate affairs, as it is their duty by proper diligence to keep informed of facts which the corporate books and records disclose. Redstone v. Redstone Lumber & Supply Co., 1931, 101 Fla. 226, 133 So. 882. Mr. Gray’s affidavit complies with the essential requirements of RCP 1.510(e).

United urges that the lower Court erred in concluding that the terms of the contract between Dura-Stress and McCall were immaterial, citing Patton v. Carlson, Fla.App.1961, 132 So.2d 793, as authority. But in Patton, defendants filed a motion for a more definite statement of the contract sued upon, which was not done in the case sub judice.

We think that the complaint, the pertinent part of which is quoted above, sufficiently sets forth the material terms of the contract in compliance with RCP 1.130.

The judgment appealed is therefore

Affirmed.

HOBSON and MANN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (12 total)

  • …ge and belief.” Such a statement was insufficient because it is qualified, not positive. Hahn v. Frederick, 66 So. 2d 823 (Fla.1953); P & T Electric Co. v. Spadea, 227 So. 2d 234 (Fla. 4th DCA 1969); United Bonding Insurance Co. v. DuraStress, Inc., 243 So. 2d 244 (Fla. 2d DCA 1971). As for the meritorious defense, although appellant has not favored us with a copy of the belated answer and cross-claim, appellee’s affidavit shows that she and appellant are both claiming to be the wife of the deceased and, th…
  • Alvarez v. Fla. Ins. Guar. Ass'n, Inc., 661 So. 2d 1230 (Fla. 3d DCA 1995)
    …it is based on personal knowledge where the affiant is shown to be in a position where he would necessarily possess the knowledge. Carter v. Cessna Fin. Corp., 498 So. 2d 1319, 1321 (Fla. 4th DCA 1986); United Bonding Ins. Co. v. Dura-Stress, Inc., 243 So. 2d 244, 246 (Fla. 2d DCA 1971) (“[W]hen an officer of a corporation makes an affidavit in its behalf, it is not necessary that he should state the source of his knowledge.”), rationale approved, Beverage Can-ners, Inc. v. E.D. Green Corp., 291 So. 2d 193 (…
  • Dep't OF Revenue v. M.E. Rudd and Jean C. Rudd, 545 So. 2d 369 (Fla. 1st DCA 1989)
    …v. Boulevard National Bank of Miami, 327 So. 2d 830 (Fla. 3d DCA 1976), rather than based on supposition, Landers v. Milton, 370 So. 2d 368 (Fla.1979), or the affiant’s “best knowledge and belief,” United Bonding Insurance Co. v. Dura-Stress, Inc., 243 So. 2d 244 (Fla. 2d DCA 1971), Valerie’s affidavit was admissible and disputed the nature of two transactions underlying the note. The Rudds, therefore, failed to demonstrate the requisite degree of certainty that no material fact issues existed, and summary j…

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