652 P.2d 1314 (Utah 1982), 17437, Tracy Collins Bank & Trust v. Dickamore

Docket Nº:17437.
Citation:652 P.2d 1314
Opinion Judge:HOWE, Justice:
Party Name: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.
Attorney:John L. McCoy, Salt Lake City, for plaintiff and appellant. Phil Patterson, Ogden, for Dickamore. Parley R. Baldwin, Ogden, for Atkinson.
Case Date:August 12, 1982
Court:Supreme Court of Utah
 
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Page 1314

652 P.2d 1314 (Utah 1982)

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.

No. 17437.

Supreme Court of Utah.

August 12, 1982

John L. McCoy, Salt Lake City, for plaintiff and appellant.

Phil Patterson, Ogden, for Dickamore.

Parley R. Baldwin, Ogden, for Atkinson.

Page 1315

HOWE, Justice:

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...

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