Opinion
June 27, 1950.
Appeal from the Circuit Court, Marion County, F.R. Hocker, J.
Greene Ayres, Ocala, for appellants.
Green Bryant, Ocala, for appellee.
Plaintiff-appellee filed suit in the court below to foreclose a mechanic's lien against certain property of the defendants, appellees here, claiming an unpaid balance due of approximately $5,800.00 out of a total sum expended of some $20,000.00 for materials and labor furnished in the construction of a skating rink for defendants. The defendants answered, denying the liability, and alleging by way of counterclaim that plaintiff had performed the work under a written contract which provided for the construction of the building at cost plus 10 percent, with a maximum over-all cost of $16,000.00; that plaintiff had breached this contract; and that defendants had been damaged by such breach in the amount of $10,000.00. In reply to defendants' answer, plaintiff denied that the written contract was entered into and alleged further that such contract, if ever adopted, had been abandoned by mutual agreement between the parties, and that no work was performed nor payments made thereunder.
The lower court found the equities of the cause to be with plaintiff; and, after disallowing certain items for labor and materials claimed by plaintiff, decreed that the sum of $3,295.86, plus interest, was due plaintiff; that his lien had been properly perfected; and ordering the property to be sold to satisfy such lien. From such decree, defendants have perfected this appeal.
We will not recite in detail the voluminous testimony heard by the Chancellor, but will say only that the questions of fact were resolved by him in the plaintiff's favor on the basis of ample evidence to support a decree that the equities were with the plaintiff. Under such circumstances, this court is not authorized to substitute its judgment for that of the chancellor.
It is argued, however, on behalf of defendants, that the plaintiff is barred from relief in this case because of "unclean hands." The defendants contend that it may be inferred from plaintiff's testimony that the contract between plaintiff and defendant was entered into solely for the purpose of persuading a third person to finance the building and without any intention to abide by the $16,000.00 maximum cost provision of the contract. It appears that the third-person mortgagee, who was not a party to the contract nor a party to this suit, actually advanced the sum of $14,500.00 for the construction of the building. However, it is not contended that the third-person mortgagee would have been called upon to pay any amount in excess of the sum of $16,000.00, and the record is devoid of any indication that either the plaintiff or the defendant intended to "bilk" the mortgagee. We hold, therefore, that as between the plaintiff and the defendant, such secret agreement, if it in fact existed, would not operate as a bar to plaintiff's suit under the "clean hands" doctrine.
Since the mortgagee is not a party to this suit, we do not have before us the question of priorities as between his mortgage lien and the lien claimed by plaintiff, and it is therefore not necessary to determine whether or not the plaintiff, by his alleged conduct above referred to, would be estopped from claiming that his lien, or any portion thereof, is superior or prior to that of the mortgagee.
There being no reversible error, the decree appealed from should be and it is hereby
Affirmed.
ADAMS, C.J., and TERRELL and THOMAS, JJ., concur.