Fidelity & Cas. Co. of New York v. Plumbing Dept. Store, Inc.
| Citation | 157 So. 506,117 Fla. 119 |
| Parties | FIDELITY & CASUALTY CO. OF NEW YORK v. PLUMBING DEPARTMENT STORE, Inc., et al. |
| Decision Date | 30 October 1934 |
| Court | United States State Supreme Court of Florida |
Rehearing Denied Nov. 30, 1934.
En Banc.
Certiorari to Circuit Court, Dade County; Paul D. Barns and Worth W Trammell, Judges.
Action by the Plumbing Department Store, Inc., formerly known as Markowitz & Resnick, Inc., and another against the Fidelity & Casualty Company of New York. To review a judgment of the circuit court affirming a judgment of the civil court of record in favor of the plaintiffs, the defendant brings certiorari.
Certiorari quashed.
COUNSEL Blackwell & Gray, of Miami, for petitioners.
Francis M. Miller, of Miami, for respondents.
This case is before the Supreme Court on writ of certioriari to a judgment of the circuit court of Dade county affirming a judgment of the civil court of record of Dade county, Fla rendered in favor of the plaintiff in that court. Respondent has interposed a special motion to quash writ of certiorari on technical grounds, and also on the merits. Such a motion is unnecessary for a disposition of the case as this court always, in considering a case pending here on certiorari, will either quash the judgment or quash the writ that brings it here. Ulsch v. Mountain City Mill Co., 103 Fla. 932, 138 So. 483, 140 So. 218, and cases cited.
The suit in the civil court of record was on a common-law bond given by a construction company to an owner in consideration of the execution of a building project. The condition of the bond was in substance that the construction company (contractor) should 'promptly make payment to all persons supplying labor or materials for use in the prosecution of the work' provided for in the building contract.
The bond sued on also contained a special provision for the benefit of third parties as gift promisees or donee beneficiaries, reading as follows:
'This bond is made for the use and benefit of all persons, firms, and corporations who may furnish any material, or perform any labor for or on account of said work, buildings or improvements, and they and each of them are hereby made obligees hereunder the same as if their own proper names were written herein as such, and they and each of them may sue hereon.'
In defense of the suit on the bond, the defendant surety company by appropriate pleas attempted to plead, in avoidance of liability to the plaintiff materialman on such bond, that a materialman may not recover on a common-law bond executed by a building contractor, as principal, and a compensated surety company, as surety, even where the bond is expressly conditioned for the 'payment' of all persons supplying materials in the prosecution of the work, in addition to being conditioned for the performance of the contract for erection of the building, where the formal obligee (owner) defaults in such manner and to such extent that the principal (contractor) is without funds to pay the gift promisee (materialman) for the materials furnished, where the materials were supplied on the contractor's credit, or in reliance upon a statutory lien,...
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...beneficiaries. Third party beneficiaries in the first two classes have a right to sue. Fidelity & Guaranty Co. of New York v. Plumbing Department Store, Inc., et al., 117 Fla. 119, 157 So. 506 (1934); Enns-Halbe Co. v. Templeton, 101 Fla. 609, 135 So. 135 (1931). On the other hand, third pa......
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