Opinion
January 22, 1952.
Appeal from the Circuit Court for Dade County, William A. Herin, J.
Sibley Davis, and Darrey A. Davis, all of Miami Beach, for appellant.
Schonfeld, Greenberg Heller and Harold Zinn, all of Miami Beach, and Joseph A. Wanick, Miami, for appellees.
In this case the appellant filed a bill of complaint in the Circuit Court of Dade County against the appellees praying for the imposition and enforcement of an equitable lien against real property owned by the defendants, appellees here. The appellees contracted with Allied Construction Company to furnish labor, services and materials for the construction of apartments on the property in question at an agreed contract price. Upon completion of the building it was found that the defendants, appellees here, were indebted in the sum of $12,600 for balance due for labor, services and materials. The appellees wished to use the apartment buildings and lot as security for a mortgage loan. In order to accomplish this they represented to and agreed with the building contractor that if he would not file a lien, as he had a right to do under the Statute, they would pay him the agreed indebtedness out of the mortgage proceeds when the mortgage was placed. In furtherance of this understanding and agreement appellees made a promissory note payable to the contractor in the sum of $12,600. At the time of delivery of this note the appellees also gave to the contractor a letter in which they said: "We are turning over to you a note in the sum of Twelve Thousand Six Hundred Dollars ($12,600.00), which is for work performed on the two four unit apartment buildings located at 7330 Carlyle Avenue and 7327 Dickens Avenue. There is no mortgage on either of these buildings at the present time and as soon as the mortgage is placed we will pick up this note."
In reliance upon this agreement the building contractor relinquished his right to file and encumber the property with a statutory lien.
Thereafter the building contractor sold the note to the appellant and delivered the same, together with a letter to the appellant. Immediately thereafter the appellant notified the appellees in writing that he was the owner of the note, with all the rights and securities securing the same. Four days thereafter the appellees placed a mortgage on the property and received the proceeds from said mortgage, but failed and refused to pay the indebtedness to the appellant although requested to do so.
The appellant, being the assignee of the building contractor, claims an equitable lien against the property.
There is no allegation that the appellees are insolvent; that they are secreting their property, or their money; or that they will carry the same beyond the borders of the State of Florida where it cannot be reached. The only allegation from which any inference could possibly be drawn that the appellant did not have an adequate remedy at law is paragraph X. of the bill of complaint, which reads as follows: "Plaintiff is informed and verily believes, and upon information and belief, alleges that defendants are about to transfer and convey the above described property, and in doing so, intend to defeat the plaintiff's right of collection of said indebtedness and destroy the plaintiff's lien upon the above described property as hereinabove set forth."
The facts in this case, with one important exception, are somewhat analogous to Jones, Trustee v. Carpenter, 90 Fla. 407, 106 So. 127, 43 A.L.R. 1409, and Palmer v. Edwards, Fla., 51 So.2d 495. In each of these cases there was a direct and positive allegation that the defendants were insolvent. The defendants being insolvent, there was no adequate remedy at law unless an equitable lien could be impressed upon the particular property which had been improved by the furnishing of labor and materials.
In this case there was no allegation of insolvency, or any other allegation showing that the remedy at law was inadequate. The Chancellor made an order in which he found: "The bill of complaint is wholly without equity", and dismissed the bill, without leave to amend.
It may be that the appellant could, by amendment, bring his case within the rules laid down in Jones, Trustee, v. Carpenter, supra, and Palmer v. Edwards, supra. It is our conclusion that the motion to dismiss the bill of complaint should have been sustained with leave granted to amend.
Affirmed in part and reversed in part, for further proceedings in accordance with this opinion.
SEBRING, C.J., and TERRELL, CHAPMAN, THOMAS, HOBSON, and ROBERTS, JJ., concur.