Tracy Collins Bank & Trust v. Dickamore
| Decision Date | 12 August 1982 |
| Docket Number | No. 17437,17437 |
| Citation | 652 P.2d 1314 |
| Parties | TRACY COLLINS BANK & TRUST, a corporation, Plaintiff and Appellant, v. Earl A. DICKAMORE and LaVon Dickamore d/b/a Dickamore's Custom Built Homes and Brent Atkinson, Defendants and Respondents. |
| Court | Utah Supreme Court |
John L. McCoy, Salt Lake City, for plaintiff and appellant.
Phil Patterson, Ogden, for Dickamore.
Parley R. Baldwin, Ogden, for Atkinson.
Plaintiff, Tracy Collins Bank & Trust, brought this action to enforce its rights as an alleged creditor third-party beneficiary of a contract between defendants, Earl A. Dickamore and LaVon Dickamore, d/b/a Dickamore's Custom Built Homes, and Brent Atkinson. Based on stipulated facts and exhibits presented to the trial court at a pre-trial settlement conference, the court found no cause of action and dismissed the complaint with prejudice. Plaintiff appeals.
On October 25, 1974, Atkinson approached Earl A. Dickamore and negotiated from him the purchase of certain concrete forms known as Symons forms. Atkinson paid $3,000 down and agreed to pay another $17,000 at the rate of $589.39 per month for 36 consecutive months with interest at 15% per annum. An escrow account at the First Security Bank, Brigham City office, was established for the receipt of Atkinson's payment. He claimed the escrow was set up to provide a record of his payments. The terms of the written escrow agreement provided in part:
All funds collected on this escrow are to be distributed as follows:
First: To the payment of all escrow fees, charges, and expenses of the escrow agent incidental to this account ...
* * *
Third: The balance is to be remitted to See Attached Schedule at the following address ____________, or any other address subsequently furnished by the above named party entitled to receive funds collected on this escrow.
No schedule was ever attached to the escrow agreement. However, unbeknown to Atkinson, each month $250 was sent by First Security to Tracy Collins which claimed a security interest in the forms under the Uniform Commercial Code, Section 70A-1-101 et seq. Utah Code Ann. 1953. Atkinson testified that he was completely unaware of any interest in the concrete forms by Tracy Collins or that it was a creditor of Dickamore. Atkinson was aware that Dickamore was in financial difficulty at the time of the sale and that some money had been owed on the forms to the Exchange National Bank of Chicago. He checked at the Box Elder County offices in Brigham City where he thought any liens would be filed, and was advised that no lien had been filed there against the concrete forms.
Atkinson made timely monthly payments on the escrow account for approximately one year at which time he was sued by Exchange National. He consulted an attorney who reached a settlement with Exchange National stipulating that Atkinson pay $5,165.31. Atkinson paid that amount in cash and then considered his obligation on the note to Dickamore fulfilled since he had lost the benefit of making installment payments. He discontinued payments to the escrow account.
Plaintiff then brought this action to enforce the Atkinson-Dickamore contract as a third-party creditor beneficiary. It made no attempt to enforce any rights it may have had as a secured party. Plaintiff's sole contention on this appeal is that the court erred in failing to find that the Atkinson-Dickamore contract was made in part for plaintiff's benefit.
Generally, the rights of a third-party beneficiary are determined by the intentions of the parties to the subject contract. 2 S....
To continue reading
Request your trial
-
U.S. v. Johnson
...because the Decedent’s children agreed therein to pay any estate taxes as they became due and payable. See Tracy Collins Bank & Trust v. Dickamore , 652 P.2d 1314, 1315 (Utah 1982) ("Where it appears from the promise or the contracting situation that the parties intended that a third party ......
-
Ron Case Roofing and Asphalt Paving, Inc. v. Blomquist
...See, e.g., Wasatch Bank of Pleasant Grove v. Surety Ins. Co. of Cal., 703 P.2d 298, 300 (Utah 1985); Tracy Collins Bank & Trust v. Dickamore, 652 P.2d 1314, 1315 (Utah 1982); Mel Trimble Real Estate v. Fitzgerald, 626 P.2d 453, 454 (Utah 1981); E.B. Roberts Constr. Co. v. Concrete Contracto......
-
Krause v. Comm'r of Internal Revenue, Docket Nos. 16425-86
...beneficiaries and would be entitled to enforce the debt obligations personally against the limited partners. Tracy Collins Bank & Trust v. Dickamore, 652 P.2d 1314, 1315 (Utah 1982); Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497, 506 (Utah 1980); Schwinghammer v. Alexander, 21 Utah 2d 418, 44......
-
Bybee v. Abdulla
...benefits conferred by contracts are presumed to flow exclusively to the parties who sign the contracts. Tracy Collins Bank & Trust v. Dickamore, 652 P.2d 1314, 1315-16 (Utah 1982) (citing Restatement (Second) of Contracts § 302 (1981)). A third party may claim a contract benefit only if the......