DAVID'S SANDWICH SHOP, INC., APPELLANT,
v.
WOMETCO VENDING OF SOUTH FLORIDA, INC., APPELLEE

Fla. 3d DCA | 1969-03-25
No. 68-558
Before CHARLES CARROLL, C. }., and PEARSON and HENDRY, JJ.
220 So. 2d 639 Florida District Court of Appeal, Third District (1969) Positive Treatment
Cited by 5 cases

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Holding

The court held that the dismissal of the third amended complaint was proper because the pleadings failed to allege that the defendant assumed the obligations of the original contracting party.

Facts & Procedural History

Appellant sued appellee for breach of a contract entered into with Mar-Tab Vending Company. Appellee purchased Mar-Tab's assets and business, and appe…

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Topics
Third Party Beneficiary Breach Of Contract

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Opinion of the Court
HENDRY, Judge.

HENDRY, Judge.

This is an appeal from an order dismissing Appellant’s Third Amended Complaint with prejudice. Appellant was the plaintiff below in an action wherein it sought damages against the appellee which it alleged were incurred by the appellee’s failure to abide by a certain contract. This contract was entered into by the appellant, a food and vending machine supplier, and another business known as Mar-Tab Vending Company.

The assets and business of Mar-Tab were purchased by the appellee, Wometco Vending of South Florida, Inc. In the action below, the appellant contended that Womet-co failed to perform the above contract with regard to its obligations owed to the appellant. The trial judge dismissed the appellant’s Third Amended Complaint with prejudice reciting no reasons therefor in the order. However, the appellee’s motion to dismiss, which resulted in the order now being appealed, set forth as grounds for dismissal the fact that the appellant had failed to allege that Wometco Vending of South Florida, Inc., had assumed the obligations of the contracting party, Mar-Tab Vending Company.

The pleadings demonstrate an absence or circumstance which would impose an obligation on the third party to perform the contract. Therefore, the appellant’s action was correctly dismissed. Jenkins v. City Ice and Fuel Company, 118 Fla. 795, 160 So. 215. See also Henock v. Yeamans, 340 F.2d 503 (5th Cir. 1965).

Affirmed.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Int'l Expositions, Inc. v. City OF Miami Beach, 274 So. 2d 29 (Fla. 3d DCA 1973)
    …s an absence of circumstances upon which the appellant could support a claim for relief. Therefore, the court quite properly dismissed the complaint with prejudice. David’s Sandwich Shop, Inc. v. Wometco Vending of South Florida, Inc., Fla.App.1969, 220 So. 2d 639. The appellant, not having bargained for and paid the City of Miami Beach for the exclusive right to use its Convention Hall, has no cause of action against the City for leasing its facility to others who desired its use. The Convention Hall is ope…
  • David's Sandwich Shop v. Wometco Vending of S. Fla., Inc., 225 So. 2d 921 (Fla. 1969)
    …Certiorari denied without opinion. 220 So. 2d 639.…
  • Int'l Clothing OF Fla., Inc. v. Miami Elegante, 379 So. 2d 1041 (Fla. 3d DCA 1980)
    …PER CURIAM. Affirmed. Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100 (Fla. 4th DCA 1969); David’s Sandwich Shop, Inc. v. Wometco Vending of South Florida, Inc., 220 So. 2d 639 (Fla. 3d DCA 1969); and Fla.R.Civ.P. 1.110(b).…

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