Benjamin R. Pitt, Plaintiff in Error, vs. W. J. Acosta, Defendant in Error, 18 Fla. 270

The Chief-Justice delivered the opinion of the court. The liability of Acosta to Pickard was, under the original contract, to pay him by a note at six months. The money was not to be paid until after six months. Pitt did not by furnishing Pickard the materials to build a house for Acosta, and tiling his lien, acquire a right under the contract to compel Acosta to give him the note, nor did Pitt acquire a present right to sue Acosta for the'money by reason of a breach of the contract by the refusal to give the note to Pickard. Pitt had no right of action against Acosta on the contract.

By virtue of his lien, he had under the statute a right to the money, to be paid when it would become due, by. the terms of the contract, and to collect it out of the property.

Chapter 8042, Laws 1877. When the lien attached, and Acosta had notice of it, he could not satisfy Pitt’s lien by giving his note to Pickard, yet this would have been a compliance with his contract, and no action could have been maintained by Pitt upon the contract. Pitt’s suit was brought to enforce his lien to the extent of the amount due, or to become due, from Acosta. With the contract he had no concern, except as it fixed the time of payment and the amount. Pitt was therefore not entitled to a note, nor does he sue to compel the giving of a note according to the terms of the contract.

The convention of the parties after notice of the lien, as shown by the testimony, did not change the status, nor did the unexecuted naked agreement that the note should be given by Acosta to Pitt for the $200 at six months give a right of action recoverable under his declaration in this proceeding to enforce a furnisher’s lien. If there arose any present right of action by Pitt against Acosta, it was not by virtue of the original contract but under the new agreement, but this is not the subject of this suit.

The verbal promise of Acosta to give a note to Pitt instead of Pickard, thus paying so much of Pickard’s debt to Pitt, leaves the parties in statu quo. This new agreement, and the consideration and compromise leading to it, were at most evidence of the amount unpaid and to be paid on the original contract and the extent of the lien. Pitt suffers nothing by failing to get the note. His lien, if valid, authorizes him to enforce it against the property within twelve months after the expiration of the credit, and his security meantime is good.

It is insisted that the defendant having refused to give the note to Pitt, he has a present right of action to sue for the money. But none of the authorities cited warrant this conclusion. There was no election reserved in the contract to pay the money or give a note, the contract calling on defendant to give his note to Pickard. Pickard was the only party entitled to sue for damages for the refusal to give the note (the only breach), and he was perhaps 'es-topped by the filing of the lien and notice to defendant thereof.

Eor authorities sustaining the foregoing position reference is made to the briefs of counsel on both sides. The plaintiff, in conclusion, claims that even if he was not entitled to a judgment for $200, yet he was entitled to a judgment for $38, because Pickard’s testimony establishes an indebtedness at the completion of the building amounting to $258, $25 of which was paid before Pitt gave notice to Acosta, and excluding the $200, covered by the note, there still remained $33 due and payable at the beginning of the suit, and for which judgment should have been given in plaintiff’s favor.

It is true that Pickard states the amount due him at $258 on account of extra work, &c., but at'the conferences of the parties it appears Acosta claimed certain deductions on account of defects in the building, and the amount was compromised at $225, of which $25 was paid to mechanics before the lien of the plaintiff attached, and there is nothing in the evidence to show that this compromise was not just. All the testimony given was on the part of plaintiff. The result is, that the testimony offered failed to show a present right of action against the defendant, Acosta.

The testimony of the plaintiff was properly refused, and the demurrer to all the evidence offered by the plaintiff should be, as it was, sustained.' The judgment is affirmed..