In re Advisory Opinion to the Governor , 74 Fla. 250 ( 1917 )

Whitfield, J.

In a bill brought by the appellee to enforce a materialman’s lien, it is alleged that E. E. Skipper, the owner of Lot 4, Block “K.” and Lot 7, Block ‘“J.” Wades addition &c., contracted with M. Boot for the erection of two houses ;on the first mentioned lot and one house on the second mentioned lot; that complainant “furnished material, lumber and other building material for the use of the said M. Boot in constructing the said houses upon the above described property; that complainant “gave M. Boot and E. E. Skipper written notice” which was duly filed and recorded in the following words:

“To M. Root and E. E. Shipper, Owners and All Whom It Moa/ Concern:

“Yon will take notice that there is due G. S. Thomas, the sum as below, for work and labor and material furnished, done upon certain buildings and structures situate upon the following described lands, situate and lying and being in the County of Polk, State of Florida, and particularly described as follows, to-wit:

“2 houses in rear of Bank Building on Lot 4, in Block “K.” and one house in rear of hotel in Lot 7, in Block “J.” all in United States Lot One (1), section 33, township 31 S., range 28 East Wade’s Addition and re-subdivision of Frostproof; which said work was completed on the 20th day of January A. D. 1915, and the sum of Three Hundred Thirteen and 60/100 Dollars is due for material furnished and used in the construction of said buildings and structures on said lands, and that said claim is a lien upon same for said amount.

“You will also take notice that said G. S. Thomas, intends to hold a lien for said above amount on all and singular the said above described buildings, structures and the land on which same are situated.

“G. S. THOMAS.

“State of Florida,

“Polk County.

ss

“Personally appeared before me, G. S. Thomas, who being duly sworn, says that the facts set forth in the above notice are true in all particulars; that the total amount of Three Hundred Thirteen and 60/100 Dollars, is justly due and unpaid; that said G. S. Thomas hereby acknowledges that the above notice has been given for the purposes therein expressed, and prays that the same may be duly recorded.

“G. S. THOMAS.

“Sworn to and subscribed before me this

22nd day of March, A. D. 1915.

“JOHN C. BUBLEIGH,

“Notary Public.

“My commission expires July 13th, 1915.

“Endorsed on Back as Follows:

“Filed for record 24th day of March, 1915, and recorded in Lien Book D on page 205.

“J. A. JOHNSON.”

It is further alleged “that at the time of the service of said notice of lien there was due and owing to the contractor M. Boot by said E. E. Skipper an amount in excess of the amount due by the said M. Root to complainant for materials furnished;” that neither of the said defendants has paid complainant the balance of $285.34 due for such materials. The prayer is in effect that a lien be decreed and enforced. E. E. Skipper demurred separately on grounds that the bill of complaint does not show the amount of material used in the several buildings on different lots and that the written notice is not sufficient. This demurrer was overruled and Skipper appealed.

The statute provides for a lien upon the owner’s real estate “by the delivery to him, or his agent, of a written notice that the contractor * * * for whom the materials have been furnished, is indebted to the person * * * furnishing the materials in the sum stated in the notice.” “A lien shall exist from the time of the service of the notice for the amount unpaid on the contract.”

An allegation that the materialman gave the owner of the land written notice, is a sufficient allegation of the delivery of the notice to the owner and where a written notice is given to the owner, it is a sufficient service for the purpose of the lien created by the statute. The notice as found is sufficient in view of the relation of the parties as shown. See Reed v. Southern Lumber & Supply Co., 73 Fla. 886, 75 South. Rep. 29.

It is not essential to show a lien in a case of this character that the bill of complaint alleges the amount of material used in the construction of each of the several buildings. If the proofs show any material furnished and used for each building the lien exists and the amount due is a matter of proof.

Decree affirmed.

Browne, C. J., and Taylor, Ellis and West, J. J., concur.