HomeMy WebLinkAbout0636 The Defendant owners did not voluntarily put them-
. selves in the situation where they became primary debtors for
the carpet to the Plaintiff.
In order to create privity under the lien statute,
there must be, in addition to knowledge of the owner that a
certain person is furnishing labor or material for the con-
tractor to be used in the execution of his contract, an express
or implied assumption by the owner of a contractual obligation
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to pay for the labor or materials furnished. See Haruer Lumber
& Mfg. Co. v. Teate 125 So.21 (S. Ct. 1929) While such privity
may be made out by circumstantial,. as well as direct and positive
evidence, the ultimate conclusion must be made to appear that the
owner voluntarily put himself in such situation toward the material-
man ox laborer as to make him liable on an implied agreement to
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pay for the labor or material furnished, not as a secondary, but as
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a primary debtor on the account. Tompkins Land Co., Inc. v. Edge '
341 Sold 206 (4 DCA 1976) In this case, the invoice for the
carpet was made directly to the general contractor and not to the
owners; the order form for the carpet was also made directly to
the general contractor and not to the owners. The Defendants ;
merely selected the color and type of carpet and did not assume a
direct primary obligation to pay the account for the carpet to
' Plaintiff.
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Since all of the construction funds were disbursed and
there are no remaining, funds on hand, there can be no equitable
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lien. Crane Co. v. Fine 221 Sold 145 (S. Ct. 1969).
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It is thereupon
~ ORDERED and ADJUDGED that Plaintiff, Carpet Showcase,
Inc., take nothing by this action, and that Defendants, Joseph
Piazza and Lucy Piazza his wife go hence without day. Jurisdiction
is reserved for the assessment of attorneys' fees and costs, to
be determined at a later hearing.
DONE and ORDERED in Vero Beach, Indian River County,
Florida this day of December, 197 .
871490
Copies furnished to: ~ ~ 3 rcu u :y
~ Vincent A. Lloyd, Esq.
N. Richard Schopp, Esq.
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