bill of complaint represents the true meeting of | 590, 52 South. 799, 138 Am. St. Rep. 171; minds between this defendant and R. Rosenthal Southern States Fire Insurance Co. v. Bann, & Son. 69 Fla. 544, 68 South, 645. [2] In reforming a policy of insurance, like that of any other written contract, the want of conformity to the agreement of the parties must be occasioned by a mistake which is mutual and common to both parties to the instrument. A mistake on one side may be a "This defendant further answering says that the policy in question contained an acknowledgment on the part of R. Rosenthal & Son that they were the owners in fee simple of the land upon which the building in question was located, and that said policy was issued with the understanding that R. Rosentha! & Son were the owners in fee simple of said property. The policy contained the following provision: "The entire policy shall be void, if the subject of in-ground for rescinding, but not for reforming, surance be a building on ground not owned by the insured in fee simple.' And that the policy in question provided that if they were not the owners in fee simple of the property, then the said policy should be null and void. And this defendant says that neither R. Rosenthal & Son, nor R. Rosenthal, nor D. Rosenthal were the owners in fee simple of said land upon which the said building and contents were located. This defendant further says that it would not have issued said policy of insurance on the merchandise and fixtures had it known that the said R. Rosenthal & Son were not the owners of the land upon which the building was located. And having learned that the complainant is not the owner of said land hereby declares the policy void and tenders into court the premium of $60 paid on said policy." There were other allegations not essential here. Testimony was taken before a master, and on final hearing the court decreed that: "The court is of the opinion that the equities of the cause are with the defendant, and that the complainant herein has failed to sufficiently establish by the testimony the material allegations of his bill of complaint to the effect that there was a mistake made by the insurance company in writing the policy sought to be reformed, as expressed in the bill. It is thereupon, upon consideration thereof, ordered, adjudged, and decreed that the relief and prayer asked for in the bill of complaint be denied, and said bill dismissed." On appeal taken by the complainant the errors assigned are that the court erred in rendering the decree, in denying the relief prayed, and "in ignoring the items of fixtures insured by the policy." the contract; where the minds of the parties South. 585; Bexley v. High Springs Bank, 74 [3] Equity will reform a written instrument when by mistake or fraud it does not contain the true agreement of the parties; but it will only do so when it is satisfactorily made to appear that a mistake has been made or a fraud committed, for the writing should be deemed to be the sole expositor of the intent of the parties until the contrary has been established beyond reasonable controversy; and in such a case the burden is upon the complainants to establish the facts relied on for reformation by clear and satisfactory eviGriffin v. Société Anonyme la Flor dence. 980. [4] In a suit for the reformation of a written instrument, when the evidence is conflicting and the finding of the chancellor thereon does not clearly appear to be erroneous, it will not be disturbed on appeal. Robinson Point Lumber Co. v. Johnson, 63 Fla. 562, 58 South. 841. [1] Where because of fraud or mutual mis-idienne, 53 Fla. 801, 44 South. 342; 34 Cyc. take a policy of fire insurance does not express the contract entered into by the parties, a court of equity may reform the policy so that it shall express the contract intended to be made, and in the same suit may enforce the obligations of the policy. Unless the complainant by appropriate allegations and proofs shows that he is entitled to have the policy reformed, the policy cannot properly be enforced in the equity suit and the bill should be dismissed. Where by inadvertence or otherwise a poiicy of fire insurance is issued contrary to the intention of the parties thereto, a court of equity may in a proper case reform the policy so as to make it express the real agrecment and intention of the parties, and as so reformed to enforce the policy in order to do complete justice in the controversy. The right to the reformation of an instrument is not absolute, but depends on an equitable Where the chancellor upon a consideration of the evidence denies reformation, his ruling will not be disturbed unless it is clearly erroneous, particularly where the evidence is conflicting in material particulars and the complainant has not substantially carried the burden of proof imposed by law in such cases. It is alleged "that through mistake and error on the part of the defendant's agents" the policy does not "express the true agreement of the parties," that the property insured is "upon leased premises," and reformation in this particular is prayed. The chan 59-CONTRAC The complainant herein has failed to suffi- 16. PRINCIPAL AND SURETY ciently establish by the testimony the material TOR'S BOND-CONSTRUCTION. allegations of his bill of complaint to the effect In determining the legal effect of a bond that there was a mistake made by the insurance given to secure the performance of a building company in writing the policy sought to be re-contract, all of its provisions should be considformed, as expressed in the bill.” ered, and effect should be given to the intent of the parties, as shown by the entire instrument, taken in connection with the contract, when such intent is not unlawful. 7. CONTRACTS 147(2)-CONSTRUCTION-IN A careful consideration of the evidence does not lead to the conclusion that the chancellor clearly erred in his specific finding, and, in accordance with the established rule TENT OF PARTIES. in such cases, the finding will not be disturb-consideration of all parts of a contract, should The real intention, as disclosed by a fair ed by the appellate court; the testimony be- control the meaning given to mere words or ing conflicting and unconvincing, and the bur- particular provisions, when they have reference den of proof cast by law upon the complain- to the main purpose. ant not being clearly sustained. Complainant 8. MECHANICS' LIENS 315-CONTRACTOR'S BOND-CONSTRUCTION-RIGHT OF ACTION. not being entitled to reformation, there is no Where a bond is given to secure the performbasis for relief in an equity forum, and the ance of a building contract, the owners of the decree is affirmed without prejudice to any property being the obligees, and the bond is exright of action at law the plaintiff may have. pressly given to indemnify the owners and "all persons who may become entitled to claims or liens under the contract according to the provisions of the law in such cases made and pro It is so ordered. BROWNE, C. J., and TAYLOR, ELLIS, vided," the provisions of such bond should not and WEST, JJ., concur. (74 Fla. 346) be held to give rights of action thereon in favor of those who furnished labor and material to the contractor, but have no claims under the law against the property owners, obligees in the bond, unless the terms of the bond clearly DEKLE et al. v. VALRICO SANDSTONE CO. require it to be so interpreted. et al. (Supreme Court of Florida. Nov. 19, 1917.) (Syllabus by the Court.) RECOVERY 1. MECHANICS' LIENS 35 2 MECHANICS' LIENS 114(2)-LABOR AND Appeal from Circuit Court, Hillsborough County; F. M. Robles, Judge. Bill in equity by Lee Dekle and T. B. Sherrill against the Valrico Sandstone Company, a corporation, and others. Special demurrers to parts of the bill of complaint sustained, and complainants appeal from such interlocutory orders. Orders reversed. McKay, Withers & Phipps and Whitaker, Himes & Whitaker, all of Tampa, for appellants. Sparkman & Carter, W. C. Bigger, Victor H. Knight, James F. Glen, Shackleford & Shackleford, and William H. Jackson, all of Tampa, for appellees. Where the assignees or the sureties of the Contractors undertake to complete a contractor's abandoned contract, the lien of laborers and materialmen may attach for the amount unpaid WHITFIELD, J. It appears that V. Spoon the contract, but not for a greater amount. to, P. Spoto, and S. Spoto, owners of lot 3. MECHANICS' LIENS 111(1)-COMPLETION 1, block 78, Ybor City, contracted in writing BY OWNER-AMOUNT OF LIEN. Where the contractor abandons the building contract, and the building is completed by the **ter of the land, liens may be obtained for amounts not greater than the amount due to the Contractor under the terms of the contract. 4. MECHANICS' LIENS 114(2)-SUCCESSION TO CONTRACTOR'S INTEREST INTEREST OF OWNER. An assignee of a building contractor, or a sirety on a contractor's bond, may be a sucCessor in interest to the contractor; but the interest of the owner of the building is adverse to that of the contractor. MECHANICS' LIENS 111(1) - ABANDONVENT OF CONTRACT-LIABILITY OF OWNER. Where the contractors abandon a building eontract when no liens of materialmen or laborers had been acquired against the property, and When there was nothing due and unpaid to the atractor on the part performance of the contract, and nothing afterwards became due to the tractors or their successors in interest on the contract, because the owner completing the biling at a loss on the contract price, no liens ach to the owner's property for those who furnished material and labor to the contractor bere he abandoned the contract. on June 8, 1914, with Parrish & Goin, copartners, that the latter should on or before October 8, 1914, erect, finish, and deliver a building of stated specifications on the lot for $16,250, the contractors to furnish all material and labor; that to secure the performance of the contract by Parrish & Goin, and for the protection of the owners of the lot and others referred to in the instrument, a bond in the penal sum of $8,500 was executed June 8, 1914, by Thomas S. Parrish and James D. Goin, copartners, as principals, and by Lee Dekle and T. B. Sherrill, as sureties; that about September 19, 1914, the contractors abandoned the contract, leaving the building unfinished; that the owners completed the building at a cost equal to or in excess of the contract price. On January 28, 1916, Lee Dekle and T. B. Sherrill filed a bill of complaint in equity against the appellees, including those who furnished material and labor to the contractors in erect ing the building and the owners of the lot and the contractors, alleging that the building was completed prior to December 15, 1914; that subsequent to the completion of the building 36 of the defendants in this suit, whose names are stated in full, have brought 36 actions against the complainants herein on their bond for the payment of labor or materials alleged to have been furnished to the contractors for and during the construction of the building; that the aggregate amount of such claims is $3,310.45, or more, and for attorney fees; that 6 of the other defendants in this suit will institute like suits for $2,287.66; that the owners of the lot and building claim and will sue for a liability against complainants upon their bond of $3,061; that the aggregate claims amount to $8,659.11, and with interest total not less than $9,500, exclusive of attorney fees. The bill of complaint contains the following allegations: (6) That the first-named 36 defendants in this suit "and the defendants American Sheet Metal Works, Jetton Lumber Company, Tampa Electrical Supply Company, T. W. Ramsey, Coates Plumbing Supply Company, and Hillsborough Lumber Company, to the extent to which they, or any of them, performed any labor or furnished any material in or for the construction of the building herein before referred to, did the said work for, and furnished the said material to, the contractors aforesaid, without the said plaintiffs and said defendants, or any of them, before or during the performance of the said labor and furnishing of said materials, delivering or causing to be delivered to the said owners, or any of them, or his or their agent, any written cautionary notice that said plaintiff's and said defendants, or any of them, would do said work, or any work, or would furnish said materials, to or for said contractors. And your orators aver that no such cautionary notice as aforesaid, or any cautionary notice, was given by said 36 plaintiffs and said other defendants, or any of them, to the said owners or any of them, or his or their agent, before or during the furnishing of the alleged labor and materials to the said contractors. And your orators further aver that the said plaintiffs and the said defendants American Sheet Metal Works, Jetton Lumber Company, Tampa Electrical Supply Company, T. W. Ramsey, Coates Plumbing Supply Company, and Hillsborough Lumber Company, and each of them, at all times before the filing of this bill of complaint, neglected and failed to deliver or cause to be delivered to the said owners, or any of them, or his or their agent, any written notice that the said Parrish & Goin, contractors, were indebted to them, or any of them, in any sum, at any time when any amount was unpaid on the building contract herein before referred to by the said owners, which then was or thereafter became due, owing, or payable by the said owners upon the said contract. And your orators further aver that there was no amount due, owing, or payable upon the building contract herein before mentioned from the said owners at the time of the delivery, or after the delivery, of any lien, notice or notices, given, or attempted to be given, to said owners, or any of them, or his or their agent, by any of the [defendants who are the] said plaintiffs [in the 36 pending suits referred to], or the six defendants last above named. ** (7) "That at the time of the execution and delivery of the bond hereinbefore mentioned named therein, to wit, the owners, the full amount of the contract price agreed by the said construction of the building provided for in owners to be paid to the said contractors for the said building contract, to wit, the sum of sixteen thousand two hundred fifty dollars; that as between your orators and the said owners, bond, was held by the said owners in a trust the said money, after the execution of the said capacity, to be applied in the manner, and no other, prescribed in said building contract for the payment of the same to the said contractors; that the said owners were without right or authority to disburse or pay out the said funds in any manner other than as prescribed and set forth in said contract. That nevertheless the said owners, without the consent or acquiescence of your orators, or either of them, and to the prejudice of your orators, and each of them, made material departures from, or changes in said building contract hereinbefore mentioned, in the time and manner of the making of the payments of the contract price for contractors, and that large payments made by the construction of said building to the said. said owners, the exact amount of which is unknown to your orators, aggregating five thousand dollars or more, were paid out by the said owners to the said contractors in violation of provisions made in said contract, in that said payments exceeded, when made, more than 80 per cent. of the cost of materials furnished and built in, and the cost of labor performed on the said building, and said payments were made without a certificate from A. L. Shaw, the architect therein named, and who was then acting as architect, under the said contract, to the effect that said architect knew that said work was correctly and thoroughly done, and that the said architect considered the said payments properly due, and that said payments were made without there being a certificate obtained from the clerk of the circuit court of Hillsborough county, Florida, that said clerk had carefully examined the public records of said county and found no liens or claims recorded against said building, or on account of the said contractors, and without a certificate from said architect, receipted by each artisan and laborer employed upon the said building, that he had been paid in full, and without the said contractors, or either of them, making oath according to the said architect's certificate that all bills had been paid and that there were no unpaid accounts against the said building, and large payments were made, amounting to five thousand dollars, or more, the exact amount being to your orators unknown, without said owners reserving 20 per cent. during the progress of the work to be paid upon the final completion and full acceptance thereof, and further payments of large sums of money were made the exact amount being to your orators unknown, more frequently than weekly, as provided for in said contract. "And your orators further charge that on or about the 19th day of September, 1914, the said contractors having received from the said owners payments upon the said contract price for the construction of said building in violation of the terms of the building contract aforesaid, as above stated, and largely in excess of the amount to which said contractors had become entitled, under the terms of the said contract for the work done, the said contractors totally abandoned the said contract and the construction of the building therein provided for, leaving the said building largely unfinished, and afterwards the said owners completed the construction of said building at a necessary cost and expense to said owners equaling or in excess of the balance then unpaid by said owners upon said building contract, the exact amount being to contract." said contract, if any right ever accrued to such defendants, and that by virtue of such departures from and violation of the terms and conditions of said contract your orators were released from any and all liability upon the said bond." The bill contains other allegations not essential to be stated here. It is prayed, among other things, that the pending suits be enjoined; that the institution of other suits be enjoined; that the bond be canceled; that, if relief asked is not proper, then for an accounting; and for general relief. Some of the defendants, laborers and materialmen, demurred specially to a portion of section 6 of the bill of complaint, others to section 7, and still others to section 7% of the bill of complaint. These several special demurrers to portions of the bill of complaint were sustained, and the complainants appealed from such interlocutory orders. By the terms of the bond the obligors"are held and firmly bound unto V. Spoto, P. Spoto, and S. Spoto, as well as unto paid by said owners to said contractors before, the abandonment as aforesaid is to your orators unknown, and the amount expended by the said owners in the completion of the said building is to your orators unknown; that your orators, shortly after the abandonment of the said contract by the said contractors, as alleged, were requested by the owners to complete the said building contract, but your orators refused so to do. for the reason that your orators were then mformed and believed, and are now informed and believe, that they were discharged from any ability or obligation to the said owners under the bond hereinbefore mentioned, by reason of the material departures and changes to the prejudice of your orators agreed to and participated in by the said owners in the making of the aforesaid payments to the said contractors otherwise than as provided for in the building contract that had been theretofore entered into, and in violation of the provisions of the said (74) "That the bond herein before set forth was executed and delivered to the obligees there in named to secure the faithful performance of the building contract therein referred to and made a part thereof, upon the terms and conditions and in the manner contained and set forth in the said contract, and not otherwise; that among other things said contract provided that payments should be made to the contractors at all persons who may become entitled to liens certain times and upon certain conditions, as under the contract hereinafter mentioned, in the set forth in the said contract, and not other- sum of $8,500.00, * ** to be paid to the wise, and that your orators had a right to ex- said V. Spoto, P. Spoto, and S. Spoto, and to pect and did expect that the said terms of the the said parties who may be entitled to liens as said contract for the faithful performance of aforesaid," and conditioned that if the contracwhich they became sureties would be strictly tors "shall in all things stand to and abide by complied with by and on the part of the princi- and well and truly keep and perform all the pal parties thereto, but that, disregarding their covenants, conditions, and agreements in the duty to so comply with such terms, and with- above-mentioned contract * * for the conout the knowledge or consent of your orators, struction of said building described in said conand to their prejudice, the said owners and the tract, and shall duly and properly pay all insaid contractors made material departures from debtedness that may be incurred by the said and violated the terms and provisions of the Parrish & Goin in carrying out the said consaid contract in the manner following, to wit: tract, and complete the said building in accord"That from time to time payments were made ance with the terms of said contract, and shall which exceeded eighty (80%) per cent. of the save and keep harmless the said V. Spoto, P. cost of material furnished and built in and the Spoto, and S. Spoto, and the said building and costs of labor performed on the said building at the land on which the same is erected, from all the time of such payments and without reserv- and every claim and lien for materials, labor, or ing twenty (20%) per cent. of such costs as pro- otherwise incurred by the reason of the erection vided in said contract; that payments were and completion of said building, and shall turn Ede at times other than the weekly or semiover to said V. Spoto, P. Spoto, and S. Spoto, Earthly periods provided for in said contract; free and clear from such liens and claims for that payments were made without a certificate material or labor in any wise incurred by reafrom A. L. Shaw, the architect therein named, son of the erection of said building, and so truly and who was then acting as architect under the keep and perform the covenants, conditions, sad contract, to the effect that said architect and agreements in said contract hereinbefore knew that said work was correctly and thor- mentioned on their part to be kept and performoughly done, and that he considered said pay-ed, at the time and in the manner and form ment properly due; and that payments were ing attorney's fees, that any of the parties for therein specified, and shall pay all costs, includDade without there being a certificate obtained whose benefit this bond is made may be put to from the clerk of the circuit court of Hillsbor- in enforcing the payment and collection of any azh county, Florida, that said clerk had careand all indebtedness incurred by the said Parfly examined the public records of his said rish & Goin in carrying out this contract by and found no liens or claims recorded the said Parrish & Goin, then this obligation against said building or on account of said con- shall be void; otherwise, to remain in full force * and virtue. * And it is mutually agreed by and between all the parties to this bond that this bond is made for the use and benefit of all persons who may become entitled to claim or liens under the aforesaid contract according to the provisions of the law in such cases made and provided, and that this bond may be sued upon by them as if executed to them in their own proper person." tra-ters. "Your orators further aver that the payments improperly made amount to a large sum, the exact amount of which is to your orators known, but that they are informed and believe that said payments amount to more than the of five thousand ($5,000.00) dollars, and at all such improper payments were made before any notice or notices of lien, or of intenon to claim a lien, on the property described in ad contract, and on account of any matea furnished or work done under said contra, were filed or attempted to be filed or sed by or on behalf of any of the defendants to this suit, and before any rights under the bond accrued to any of the defendants who farished material or performed labor under the [1] Section 2211, General Statutes 1906, provides that a laborer or materialman not in privity with the owner may have a lien by delivering to the owner or his agent a written notice that the contractor is indebted to him for labor or material in the sum stat ed in the notice; but if a person who is performing or is about to perform, by himself or other, 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 notice that he will do certain work, or will furnish certain material, 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. Such service shall also create a personal liability against the owner of the property in favor of the lienor giving such notice for the amount | due him as aforesaid, but not a greater extent than the amount of such original contract. contractors or their successors in interest, as the owners completed the building at a loss. Under these circumstances liens were not acquired by the laborers and materialmen. The owners were not successors in interest to the contractors. The interests of the owners and of the contractors were adverse. [5-7] In determining the legal effect of a bond given to secure the performance of a building contract, all of its provisions should be considered, and effect should be given to the intent of the parties as shown by the entire instrument, taken in connection with the contract, when such intent is not unlawful. See Brown v. Beckwith, 60 Fla. 310, 53 South. 542. The real intention, as disclosed by a fair consideration of all parts of a contract, Section 2213, General Statutes 1906, pro- should control the meaning given to mere vides that: words or particular provisions, when they have reference to the main purpose. L'Engle v. Overstreet, 61 Fla. 653, 55 South. 381. Where a bond is given to secure the per "In every suit at law or in chancery the contractor or the person for whom the labor was performed or the materials furnished must be made a party defendant to the suit; and the judgment or decree may provide for the recov-formance of a building contract, the owners ery from the contractor or other person as aforesaid of the amount due by him, and from the owner of the amount due by him to the contractor or other person as aforesaid, at the time of the service of the notice provided for by section 2211, as well as decree and enforce the lien against the property of such owner for such amount." of the property being the obligees, and the bond is expressly given to indemnify the owners and "all persons who may become entitled to claims or liens under the contract according to the provisions of the law in such cases made and provided," the provisions of such bond should not be held to give Under this statute there can be no recov- rights of action thereon in favor of those ery from the owner, or liens upon the prop- who furnished labor and material to the erty of the owner, for labor and material contractor, but have no claims under the furnished to the contractors and used in a law against the property owner obligees in building, except for "the amount due by" the the bond, unless the terms of the bond clearowner to the contractors, or to their as-ly require it to be so interpreted. See Gato signees or sureties, at the time the liens are perfected, or subsequently. [2] Where the assignees or the sureties of the contractors undertake to complete a contractor's abandoned contract, the lien of laborers and materialmen may attach for the amount unpaid on the contract, but not for a greater amount. See King v. Ramsey, 66 Fla. 257, 63 South. 439; Carter v. Brady, 51 Fla. 404, 41 South. 539. [3] Where the contractor abandons the building contract, and the building is completed by the owner of the land, liens may be obtained for amounts not greater than the amount due to the contractor under the terms of the contract. Lowry v. Downing Mfg. Co., 74 South. 525. [4] The statute contemplates the completion of a building contract by the contractor, or by one who takes his place under the building contract, and that a part of the contract price shall be due and unpaid to the contractor or his successors in interest at the time or after the written notices of contemplated liens are delivered or served. In this case it appears that the contract was abandoned by the contractors when no liens had been acquired, and when there was nothing due and unpaid to the contractors on the part performance of the contract, and noth v. Warrington, 37 Fla. 542, 19 South. 883. The bond expressly stipulates: "That this bond is made for the use and ben efit of all persons who may become entitled to claims or liens under the aforesaid contract according to the provisions of the law in such cases made and provided." "The persons who may become entitled to claims or liens under the" building contract according to law are those who furnish labor or material used in the construction of the building, and who deliver to the owner or his agent a written notice as provided for in section 2211 of the General Statutes of 1906. If a sufficient written cautionary notice of labor or material being furnished, or about to be furnished, is delivered to the owner or his agent, or if a sufficient written notice of a stated indebtedness of the contractor for labor and material used in a building is delivered to the owner or his agent, the statute gives to such laborer or materialman a lien upon the building and the land on which it stands, "from the time of the service of the notice for the amount unpaid on the contract," and provides that in a suit by a laborer or materialman “the judgment or decree may provide for the recovery from the owner of the * * |