
    L.J. CLARK CONSTRUCTION COMPANY, Appellant, v. HARDRIVES COMPANY, INC., a Florida corporation, Appellee.
    No. 87-1547.
    District Court of Appeal of Florida, Fourth District.
    July 19, 1989.
    Rehearing Denied Sept. 14, 1989.
    Karen M. Zann, Fort Lauderdale, for appellant.
    Kenneth G. Stevens, Fort Lauderdale, for appellee.
   WALDEN, Judge.

The defendant/appellant, L.J. Clark Construction Company, planned to develop a townhouse complex on certain property. Although the construction company did not own the property it set up its headquarters there. The plaintiff/appellee, Hardrives Company, Inc., was in the business of mining and selling fill for construction sites. Hardrives entered into a contract with the construction company whereby Hardrives was to deliver fill to the construction site even though the construction company only anticipated that it might need fill at some future date if the property was developed. Because the construction company had no immediate use for the fill the contract provided that the construction company would not have to pay for the fill until it was actually “used.” A considerable time later the construction company abandoned the concept of building the townhouse complex and vacated the work site without ever spreading the fill. At a later date some unknown third party spread the fill on the land.

Hardrives brought suit against the construction company to recover the price of the fill. The construction company responded that it was not required to pay for the fill because it had not “used” it; rather, some unknown third party had used it. The trial court ruled in favor of Hardrives and required the construction company to pay for the fill. We reverse.

The contract requires that the construction company use the fill before an obligation to pay for it arises. There is no basis in the record for concluding that the construction company “used” the fill. The record merely indicates that some unknown third party spread the fill upon the land long after the construction company had abandoned the idea of building the townhouse complex and had departed from the work site. The record reflects that Har-drives was aware that the construction company had left the work site. Thé construction company was not obligated, under the contract, to notify Hardrives if it decided not to use the fill. Further, there was no benefit conferred upon the construction company by the spreading of the fill since the construction company did not own the land. Since the record does not support the conclusion that the construction company “used” the fill there is no basis for holding it accountable under the contract.

REVERSED AND REMANDED for further proceedings consistent herewith.

ANSTEAD, J., concurs specially with opinion.

LETTS, J., dissents with opinion.

ANSTEAD, Judge,

concurring specially.

I agree with Judge Walden that there is no evidentiary basis for concluding that the transaction in question was an absolute sale at the time the contract was entered, so as to place the responsibility on the appellant to pay for the fill even if it did not use it or otherwise benefit from its use. Under the contract, the appellee was authorized to file a lien on the property in order to protect its investment in the fill. As Judge Letts notes, we are faced with a record that tells us nothing about who did “use” the fill or whether any liens were filed. The record does not demonstrate, however, that the appellant “used” the fill.

LETTS, Judge,

dissenting.

The appellee, a company in the business of mining and selling uncrushed fill had ten thousand cubic yards thereof available which, by written contract, it sold to appellant, a construction company. Pursuant thereto, the construction company picked up the fill and hauled it to the designated site which the construction company did not own, but on which it planned to develop a townhouse complex. The site had already been demucked by the construction company preparatory to spreading fill there. However, because the local economy had suffered a downturn, it was agreed that the construction company would not have to pay for the fill until it was actually “used,” that is, spread on top of the muck. Some considerable time thereafter, the construction company abandoned the work site without ever spreading the fill stockpiled thereon. Nonetheless, some unknown-party did, at a later date, spread it on the demucked site. The record does not shed any light on why the owner of the de-mucked site is not a party to this law suit. Nor, are we advised as to whose unseen hand it was that generously and gratuitously caused the fill to be “used” or spread. Instead, we are only asked to consider whether the construction company should pay for the fill because it was actually used or whether the fill company should bear the loss because the fill, although used, was not in fact spread by the construction company.

At the outset, it should be noted that some of the foregoing recited facts are in dispute and not all of them are recounted. Suffice it to say, there is competent and substantial evidence in the record to support the decision of the trial judge in this non-jury trial. Marsh v. Marsh, 419 So.2d 629 (Fla.1982). I, therefore, would affirm.

In essence, the construction company argues that it did not purchase the fill at all, but agreed merely to stockpile it at the site, and pay for it only if and when the construction company “used” it, there being no purchase until actual use. The construction company admits that the fill was spread, but argues that since it had nothing to do with, and knew nothing of, the spreading, it did not purchase the fill and cannot be held accountable to pay for same. This argument, predicated on the theory of bailment, was advanced at trial, but rejected by the trial judge who found the contract to be one reflecting a sale. The contract in question is reproduced as follows:

I cannot label the trial judge s conclusion an abuse of discretion though I have difficulty with some of his reasoning. To his way of thinking, “use” was the sole issue. In other words, had all ten thousand cubic yards been removed from the site by thieves in the night, the construction company would still be responsible for payment. It is not necessary for me to decide whether such a theft would constitute a “use” which could trigger payment because in the case at bar the “use” contemplated under the contract was inescapably the spreading of the fill on this particular property. Moreover, the site was the construction company’s place of business which it had already demucked in preparation for the spread of the fill. That is exactly what occurred. The construction company would, at a minimum, have had a duty to advise the fill company that it did not plan to use the fill and ask to return it. It could not simply stand by, as it did, and let the fill be employed for the very purpose for which it was intended, yet avoid any responsibility therefore. See Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569 (Fla. 2d DCA 1976).

There is a second issue on this appeal. The construction company also argues it was error for the trial judge to refuse to hear evidence that the fill company had illegally mined the very fill under discussion, had in effect stolen it and therefore had no right to recompense. However, no proffer of any such evidence was made at trial. Moreover, on the petition for rehearing, the fill company introduced satisfactory evidence to establish that it had, in fact, paid for the fill which it had mined. Accordingly, I find no reversible error on this point, nor do I find any other reversible error. I would affirm. 
      
      . By way of classic example, the appellant argues that the contract was not one of sale, but was merely a stockpiling agreement on which no sale took place before use. That is contrary to the findings of the trier of the fact which come to us clothed with the presumption of correctness.
     