Opinion
December 4, 1951.
Appeal from the Circuit Court for Dade County, Grady L. Crawford, J.
Joseph A. Wanick, Miami Beach, and Rivers H. Buford, Jr., Tallahassee, for appellant.
Graham C. Miller and Ralph G. Goberna, Miami, for appellee and cross-appellant.
A bill "in the Nature of a Interpleader" was filed by 100-21st Street Realty Corporation against the appellant and the appellees. From the allegations of the pleading it appears that the corporation was holding in escrow a sum of money to be released when appellant as well as appellees approved, and when the corporation received the former's "Waiver of Lien." Parenthetically, the money was retained by the corporation from the amount it owed appellees for work in setting marble, part of it performed by appellant as a sub-contractor.
The escrow arrangement was set out in a letter addressed to the appellees and signed by the corporation and the appellant. It was averred in the bill that notwithstanding this instrument the appellees had brought an action in the Civil Court of Record of Dade County against the appellant and the corporation for the amount retained, so to save harassment and inconvenience the present suit was instituted by the corporation for the purpose of staying the action, and the money, admittedly the entire balance owed by the corporation for the work performed, was tendered into the court pending a determination of the proper payee.
In their answer the appellees claimed the whole fund and disputed any right of the appellant to it on the ground, as we construe the pleading, that he had filed no lien and had never been in privity with the owner. The appellant answered, too, claiming the full amount as the payment of its share of the work done and representing that the accounts were so complex an accounting should be taken under supervision of the court and the money paid accordingly.
The appellees moved for a summary decree and supported the motion with an affidavit, reiterating their assertion that the appellant had no claim against the particular fund deposited in court, that it was due only to them, the appellant having held no lien or assignment upon which he could base a right to it.
The chancellor sustained this position by summarily ordering the deposit, after deduction of costs and attorneys' fee, paid to appellees leaving the appellant to his "remedy at law in regards to the differences and disputes arising out of the subject matter of this suit," which we understand to mean the enforcement in another action of any claim he may establish against appellees for work done by him at their request.
We are not fully in accord with the chancellor's disposition of the case. It may be literally true that at the time of the entry of the decree the appellant had no claim to the specific fund because of the absence of a notice of lien and the lack of privity with the owner, but such a view does not take fully into account the history of the relationship among the parties. It is clear that the appellant as well as the appellees did the work for the payment of which the corporation was responsible. It is equally plain that when the job was completed there was no question about the balance the corporation owed, but only about the proper recipient of the money. The attitude of the appellees that the appellant had no claim to the fund itself, irrespective of any debt the appellees owed him for his contribution in labor and materials to the construction, seems not to have been assumed until they answered in the present suit.
They admitted in their pleading that an agreement had been reached by them, the corporation, and the appellant that the corporation was to hold in escrow the balance due "pending the settlement of the differences and the conflicting claims * * * between the" appellees on the one hand and the appellant on the other. (Italics ours.) In this way they recognized a dispute about the amounts to which each was entitled but not about the character of the sum retained. When we turn to this so-called agreement we find specific reference to release of the stipulated balance upon receipt of waiver of lien by the appellant and upon approval by him as well as appellees. This is not consistent with the claim subsequently made and upheld that the balance was payable only to the latter and the former should be relegated to another action to recover whatever might be justly found to be due him. Also the appellees at the time of the agreement had accepted all money due under the original contract except the amount now on deposit in the court. If their present position is sound one can only wonder why they did not at that time demand the entire balance. Furthermore, they admitted in their answer that they brought suit in the Civil Court of Record not only against the corporation but also against the appellant. Here again they recognized that he had some interest in the remainder of the money due for work done and materials furnished.
In this situation it seems to us that it would be sensible and logical to proceed to a determination of the relative claims of appellant and appellees to a fund which represents work done by all of them for which an undisputed amount is due and actually available. In this way appellant and appellees would be spared the trouble and expense of another action and thus would justice be done, for certainly even the appellees would not gainsay that the appellant actually contributed in labor and materials to the construction for which the money on deposit is the final payment.
It would be more in consonance with present efforts to simplify the administration of justice to conclude the matter in this one suit rather than pay to appellees the money, then force the appellant to sue separately for an amount equal to his part. And to do so would be in perfect harmony with the principle that equity having acquired jurisdiction for one purpose will retain it for all.
The decree is reversed with directions to proceed to an accounting and distribution of the fund remaining after deduction of the costs and expenses of the plaintiff in the interpleader suit.
Reversed.
SEBRING, C.J., and TERRELL, CHAPMAN, ROBERTS and MATHEWS, JJ., concur.
HOBSON, J., concurs specially.
I concur in the conclusion reached by Mr. Justice THOMAS solely because of the so-called escrow agreement wherein the appellant, the corporation, and appellees agreed that the corporation was to hold the balance due "pending the settlement of the differences and the conflicting claims * * between the" appellees and the appellant.
I agree with the position taken by the appellees that the appellant has never had a claim to the fund itself by virtue of having performed any labor or furnished any materials for it is clear to my mind that the appellant did not perfect a lien by complying with the provisions of our statute, nor was he ever in privity with the owner.