Willard, Inc. v. Miller , 150 Fla. 458 ( 1942 )

The sole question for determination is the sufficiency of a declaration in two counts filed by the plaintiff-in-error against the defendant-in-error and the point of investigation may be further narrowed to a consideration of the particular defect presented to the trial court in the sixth ground of the demurrer, namely, the vagueness, indefiniteness and uncertainty of the pleading.

The plaintiff was described in both counts as a "plastering subcontractor" and the defendant as a "general building contractor." The gist of the action, averred in identical phraseology in both counts, was that "plaintiff and the defendant entered into a contract wherein and whereby in consideration of the mutual covenants and promises each to the other made, to be by each, respectively, kept and performed, the plaintiff agreed to supply all the plastering work on a construction project known as 'Second Addition to Liberty Square, Miami, Florida' for which construction project the defendant was the general contractor, and the defendant agreed to pay the plaintiff the sum of Ninety Thousand ($90,000.00) Dollars for said plastering work, which sum of Ninety Thousand ($90,000.00) Dollars was by the tacit agreement of the parties to be paid the plaintiff according to general custom and usage in construction contracts prevailing in Dade County, Florida; to be paid in semi-monthly installments as the work progressed until completion of the entire project when all sums remaining due were to be paid in full; and that both plaintiff and the defendant had knowledge of said custom and usage at the time the contract between them was made and that the parties hereto in the making of said contract, contracted with reference to the aforesaid custom and usage. . . ."

In both counts the defendant was charged with having breached the contract by notifying the plaintiff that he, the defendant, would not perform and would not allow the plaintiff to do so and in both of the counts the damage alleged was the loss "of the profits it [plaintiff] would have made by virtue of said contract." Although the nature of the damage claimed is the same in the first and second counts the latter contained additional allegations that expense was incurred by the plaintiff because he "arranged for the issuance of a surety bond" and "made all necessary arrangements for the procurement of . . . supplies."

We think it is fundamental that the plaintiff must allege the elements of the contract with precision so that the person against whom he seeks redress may properly defend himself in the action, Kennedy v. McDiarmid, 157 Ala. 496, 47 So. 792, Slaughter, et al., v. Barnett, 144 Fla. 352, 154 So. 134, and when this test is applied to the pleading here under scrutiny it is obvious that it is wanting in that degree of certainty with which the agreement should be declared. It will be noted by adverting to the quoted part of the declaration giving the gist of the cause of action that no mention is made of the quality of the work which was to be performed or the quantity of it. It is to be presumed, in the absence of allegations on the subject, that no time for the performance of the contract was agreed upon and no date adopted by the parties as the time for commencement of the work. There is no reference to any plans or specifications and the only means of identifying a particular construction is the allusion to "Second Addition to Liberty Square, Miami, Florida." The status of that so-called addition, whether merely contemplated or projected, or in actual progress, cannot be ascertained from the pleading.

In the second count there is the statement that the plaintiff was advised that it should obtain a surety bond in the same sum it was to receive for the work but these figures shed little light on the supposed agreement because of a total lack of any averment indicating the grade or amount of plastering that was to be done or the speed with which the contract was to be executed. These elements are of great importance because the damage claimed is the loss of profits and these profits would vary according to the quality and quantity of the work and the rapidity with which it was to be done.

Even the statement of the manner of payment for the work as it progressed is decidedly vague. It is alleged that the agreement in this respect was tacit and that installments were to be governed by custom and usage "in construction contracts . . . in Dade County." In pleading custom and usage as a basis for evidence of the method of compensation it was necessary to state the custom and usage more specifically. True the periods at which payments were to be made are given but there are no averments of the proportion of the work to be paid for from time to time hence the accumulated amount to be discharged at the completion of the contract.

The declaration did not comprise allegations justifying proof of that feature of the contract. The court cannot take judicial knowledge of custom and usage in a particular locality and they must, therefore, be pleaded with certainty. Pittsburg Steel Co. v. Streety, 61 Fla. 393, 55 So. 67. Essential elements of the contract were not so adequately averred in the declaration as to make it impregnable to attack by demurrer and we conclude that the circuit judge ruled with unquestionable propriety when he sustained the demurrer to it.

Affirmed.

BROWN, C. J., BUFORD, and ADAMS, JJ., concur.

WHITFIELD, TERRELL and CHAPMAN, JJ., dissent.