Truelson v. Southern Lumber & Supply Co.

West, J.

This is a suit to foreclose an alleged statutory lien on real estate for material furnished contractors who were erecting a building for appellants, defendants below. The bill of complaint was demurred to. The demurrer was overruled. This appeal is from that order.

In the brief of counsel for appellants it is said that the sole question involved is whether the form of notice served by the appellee on appellants is a sufficient compliance with the provisions of the statute to entitle the appellee to a lien on the premises of the owners appellants.

The statute provides that “if a person who is performing-or is about to perform, by himself or others, labor, or is furnishing or is about to furnish materials shall so desire, he may deliver to the owner, or his agent, a written cautionary notipe that he will do certain work, or will furnish certain materials, or both. A lien shall exist from the time of the service of the notice for the amount unpaid on the contract of and by the owner to the contractor or the person for whom the work was done or the' material furnished.” Section 3518, Rev. Gen. Stat.

It is admitted that the form of notice follows substantially the language of section 3518, but it is contended that it does not comply with the intent and proper construction of this statute and does not put the owner on notice that the appellee intends to claim a lien. The notice is as follows:

“Tampa, Florida, May 21st, 1921.

“To: Dr. T. Truelson, owner of Lot six, Block ten, West Hyde Park Subdivision according to the map or plat of said Subdivision recorded in the public records of Hillsborough County, Florida.

“You will please take notice that the Southern Lumber and. Supply Company is furnishing, and is about to furnish materials, to-wit: Lumber and mill supplies, to W. W. Hawkins, contractor, for the erection of a building on the above described premises.

“Southern Lumber and Supply Company,

“By T. E. Lucas, Secretary.

“I hereby certify that a copy of the within cautionary notice was delivered to Dr. T. Truelson, owner, and P. F. Kennard, agent of owner, on the 23d day of May, A. D. 1921.

“T. Marshall.

“ at 11 :Í0 A. M. Dr. T. Truelson and

“at 11:25 A. M. Mr. Phil Kennard”

It is contended that the notice is insufficient in two respects: Fwsi, it does not contain a statement that the person furnishing the material intends to claim a lien upon the premises of the owners appellants; and second, that the amount or sum claimed is not stated. •

By the express provisions of the statute the lien is acquired and “exists” from the “time of the service of the notice.” The giving of the notice operates to establish the lien. This is its legal effect under the statute. It would therefore be superfluous to state that the material-man intends to claim a lien upon the property. The statute does not expressly require, in a notice of this kind, the amount of the account to be stated. When the materialman delivers “to the owner or his agent a written cautionary notice that he will * * * furnish certain material,” he is not required to state in detail the “certain” material referred to. Reed v. Southern Lumber & Sup. Co., 73 Fla. 886, 75 South. Rep. 29. Yet nevertheless, in order that the lien may “exist” and its protection be afforded, the person who “is furnishing or is about to furnish materials” is required to “deliver” the “written cautionary notice to the owner, or his agent.” But in the very nature of things it may not be possible, at the time of giving the “cautionary” notice, to accurately state the amount of the account which in whole or in part is to subsequently come into existence and which may be augmented or diminished from time to time as materialds furnished under the contract or running open account- and' payments made and credits entered thereon. This Court has held that a lien for labor or material supplied may be acquired “under a contract or a running open account that is designed to continue until the completion of the structure.” People’s Bank v. Arbuckle, 82 Fla. 479, 90 South. Rep. 458. If the lien may be acquired by supplying material under a contract or “a running open account” which may vary in amount from day to day, it may also “exist, as the statute provides upon the delivery of a “written cautionary notice” to the owner or his agent in favor of a person who is'“furnishing or is about to furnish material” under a contract or “a running open account,” the exact amount of which may not be ascertainable at the time of service of the cautionary notice and which may vary from time to time “until the completion of the structure.”

The confusion no doubt arises from an expression in Ramsey v. Hawkins, 78 Fla. 189, 82 South. Rep. 823, to the effect that the purpose of the notice is to advise the owner of the amount required to pay for such material that the owner may protect himself by reserving a sufficient amount to pay therefor. The case of People’s Bank v. Arbuckle, supra, was subsequently decided, and to the extent that there is inconsistency, the former was overruled by the latter.

The order is affirmed..

Whitfield, P. J., and Terrell, J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.