Mullikin v. Harrison

Citations

• 53 Fla. 255

Syllabus

<p>MECHANICS’ LIEN — SUB-CONTRACTORS NOT IN PRIVITY WITH OWNER — CONDITIONAL PROMISE — CONSTITUTIONAL LAW.</p> <p>1. Under the provisions of section 1743 Rev. Stats, of 1892, section 2211, General Statutes of Florida, 1906, the only way that a party not in privity with the owner can acquire the statutory sub-contractor’s or material-man’s lien therein provided, is by serving the owner or his agent with written notice to the effect that the contractor is indebted to the party giving the notice for labor or material, stating the amount thereof. The statutory lien exists only from the time of the service of such written notice, and only for such amount as may be due and unpaid by the owner to the contractor at the time of the service of such written notice. Such notice also creates .a personal liability against the owner to the extent of the amount that he owes and has not paid to the contractor at the time of the service of such notice.</p> <p>2. Where the owner of a lot contracts with a building contractor for a stated sum for the furnishing of all the materials and labor 'for the erection of a building on such lot, and, during a short temporary absence of the contractor, agrees with the laborers employed by such contractor to see that they were paid for their work and materials “in the event the contractor did not return,” such conditional promise terminates and ceases to be further binding and obligatory upon such owner upon the return and resumption of the contract within a reasonable time by the contractor.</p> <p>3. Where sub-contractors and material-men employed by the building-contractor, bring suit against the owner, resting their claim against him solely upon an alleged special agreement with them by the owner to pay them for their labor 'and materials, it is error for the court to instruct the jury as follows: “If you believe from a preponderance of evidence that the defendant Mulliken contracted with the defendant Lowe to construct the building mentioned i