147 So. 264 (Fla. 1933), Marianna Lime Products Co. v. Mckay

Citation:147 So. 264, 109 Fla. 275
Opinion Judge:DAVIS, Chief Justice.
Party Name:MARIANNA LIME PRODUCTS CO. v. McKAY.
Attorney:[109 Fla. 277]John H. Carter and John H. Carter, Jr., both of Marianna, for plaintiff in error. Carter & Pierce, of Marianna, and W. J. Oven and James Messer, Jr., both of Tallahassee, for defendant in error.
Case Date:March 24, 1933
Court:Supreme Court of Florida
 
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Page 264

147 So. 264 (Fla. 1933)

109 Fla. 275

MARIANNA LIME PRODUCTS CO.

v.

McKAY.

Florida Supreme Court

March 24, 1933

Rehearing Denied April 10, 1933.

En Banc.

Error to Circuit Court, Jackson County; Amos Lewis, Judge.

Action by C. A. McKay against the Marianna Lime Products Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

COUNSEL

Page 265

[109 Fla. 277]John H. Carter and John H. Carter, Jr., both of Marianna, for plaintiff in error.

Carter & Pierce, of Marianna, and W. J. Oven and James Messer, Jr., both of Tallahassee, for defendant in error.

OPINION

DAVIS, Chief Justice.

Judgment was recovered against the plaintiff in error on its express undertaking in writing to assume and pay, among other liabilities of the Florida Basic Rock Company, a certain promissory note in the principal sum of $2,000. The declaration in substance alleged that while a suit was pending between C. A. McKay and the Florida Basic Rock Company, upon a note executed by that company to Couch & Mosehall, Inc., and owned by McKay, Marianna Lime Products Company bought from the stockholders of the Florida Basic Rock Company all of its stock, and as part of the consideration for the trade, expressly agreed in writing under seal to assume and pay off, as a part of the liabilities of Florida Basic Rock Company, the note for the amount of which the judgment appealed from in this case was recovered.

The rule in this state is that when a contract shows that it was intended to be for the benefit of a third party, such [109 Fla. 278] third party may, under section 4201, Comp. Gen. Laws, section 2661, Rev. Gen. St., 1 sue thereon. In such cases the test is, not that the promisee is liable to the third person, or that there is some privity between them, or that some consideration moved from the third person, but that the parties to the contract intended that a third person should be benefited by the contract. It is the undertaking on the part of the promisor, as a consideration to the promisee, to benefit the third person, that gives rise to a cause of action by the beneficiary against the promisor, resting upon the contract itself. American Surety Co. of New York v. Smith, 100 Fla. 1012, 130 So. 440; Enns-Halbe Co. v. Templeton, 101 Fla. 609, 135 So. 135; see, also, Dean v. Walker, 107 Ill. 540, 47 Am. Rep. 467; Tweeddale v. Teweeddale, 116 Wis. 517, 93 N.W. 440, 61 L. R. A. 509, 96 Am. St. Rep. 1003.

Under the foregoing rule which is based on our statutes, where A contracts with B to pay a debt due from C to D, D can maintain an action against A on the contract in the event of A's default, as much so as if the contract were merely one by which A contracts with B to pay a debt B owes to C. The case of Luria v. Bank of Coral Gables (Fla.) 142 So. 901, is not to the contrary, since the aforementioned proposition was merely adverted [109 Fla. 279] to, but was not decided in that case, a decision of the point being unnecessary to a disposition of that suit.

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