SAMUEL BERKOWITZ AND ALLYN S. BERKOWITZ, HIS WIFE, APPELLANTS,
v.
ANDERSON & WALLACE CONSTRUCTION CO., INC., A FLORIDA CORPORATION, APPELLEES

Fla. 3d DCA | 1972-04-04
No. 71-778
Before BARKDULL, C. J., and CHARLES CARROLL and HENDRY, JJ-
260 So. 2d 551 Florida District Court of Appeal, Third District (1972) Positive Treatment
Cited by 5 cases

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.

Synopsis

Homeowners appealed a foreclosure judgment on a mechanics' lien filed by a construction contractor. The court affirmed the contractor's right to recover for work performed but modified the judgment to allow a setoff for defective work that the homeowners were forced to pay another contractor to correct.


Holding

The trial court properly entitled Wallace to recover payment for work performed, but erred by failing to allow appellants a setoff for the reasonable cost of correcting defective work. The judgment was modified to reduce the amount due by $1,500 to reflect the cost of correcting the defects.


Headnotes

[1] A contractor is entitled to payment for the proportion of the contract performed, subject to a set-off for defects in the work.

[2] A party is entitled to a set-off for the cost of repairing defective work and completing construction when the original contractor abandons the project.

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“The trial court was eminently correct in holding that Wallace was entitled to payment for the proportion of the contract performed, but with a set-off to appellants for defects in the work.”

Establishes the core holding that contractors may recover for work performed subject to setoff for defective work

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Appellants contracted with Anderson & Wallace Construction Co. to build an addition for $6,232.25, payable in installments. At the two-thirds completi…

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.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the defendants below from a judgment for foreclosure of a mechanics’ lien.

Appellants contracted with the appellee, Anderson & Wallace Construction Co., Inc., herein referred to as Wallace, for construction by Wallace of a certain addition on the residence of the appellants, for a stipulated cost of $6,232.25, payable one-fourth at the outset, with the remaining payments to be made after one-third completion, two-thirds completion and upon completion. The one-fourth payment which was due upon two-thirds completion was withheld because of noted defects in the work. The position of the appellants was that they were unwilling to make such payment until the defects were corrected. Wallace announced willingness to correct such defects but only after the payment then due was made. Wallace continued work for some time beyond that two-thirds completion point, but when the above mentioned impasse continued Wallace refused to perform further. Appellants employed another contractor who corrected the defects and performed the work necessary to complete the construction.

Wallace filed suit to enforce a lien for the balance due. Appellants counterclaimed *552for damages for defective work. Judgment was entered holding Wallace had performed eighty percent of the required construction, and finding there was due from appellants to Wallace the sum of $1,869.-60.1 In addition, the judgment awarded Wallace $261.76 interest, $1,500 for attorney fees and $633 costs, making a total of $4,264.36, for which foreclosure was ordered.

On appeal therefrom appellants contend the court erred by failing to rule on their counterclaim, and by failing to determine and allow appellants damages for the defective work which the evidence disclosed. Secondly, that it was error to allow recovery by Wallace, contending Wallace had breached the contract. Upon consideration of those contentions in the light of the record and briefs, we find the latter unsound, but find merit in the former.

The trial court was eminently correct in holding that Wallace was entitled to payment for the proportion of the contract performed, but with a set-off to appellants for defects in the work. To the extent that the defective work or items could be considered a breach of the contract, Wallace had announced willingness to correct the same, and was reasonable in insisting that payments be made as provided for in the contract.

The evidence disclosed that appellants were required to pay $3,348.69 for repair of the defects and completion of the work after Wallace left the job. The contractor subsequently employed testified that of the total charge made by him for such work, “$1,500 or $1,600” was attributable to correcting or “redoing” the defective work. The appellants were entitled to a set-off for that amount, based on their counterclaim, and we agree with appellants’ contention that the trial court should have so held.

Accordingly, the judgment is amended and modified by reducing it by $1,500. Thereby the total amount of $4,264.36, which in the judgment was found to be due by the appellants to Wallace, is reduced to $2,764.36.

Judgment modified, and as modified, af-firméd.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • D.D. Jackson v. Riley, 427 So. 2d 255 (Fla. 5th DCA 1983)
    …. 4th DCA 1977); Marchese v. Taylor, 252 So. 2d 820 (Fla. 4th DCA 1971); Ballard v. Krause, 248 So. 2d 233 (Fla. 4th DCA 1971). . Dynamic Builders, Inc. v. Tull, 365 So. 2d 1032 (Fla. 3d DCA 1979); Berkowitz v. Anderson & Wallace Constr. Co., Inc., 260 So. 2d 551 (Fla. 3d DCA 1972). . Chatios v. Morse Auto Rentals, Inc., 183 So. 2d 854 (Fla. 3d DCA 1966).…
  • …Certiorari denied. 260 So. 2d 551. ROBERTS, C. J., and ADKINS, BOYD, McCAIN and DEKLE, JJ., concur.…
  • …g so, the court erred because when a contractor sues to foreclose a mechanic’s lien, the property owner is entitled to a setoff for expenses incurred in repairing defects and completing the contract. Berkowitz v. Anderson & Wallace Construction Co., 260 So. 2d 551 (Fla.3d DCA 1972). Consequently, we reverse and remand. On remand, the trial court shall receive evidence as to the expenses which Sherton reasonably incurred in completing the contract, and award this amount by setoff or counterclaim as may be app…

Full citator, related cases, and AI research tools

Open in FLexlaw