First National Bank v. Perkins

Citations

• 81 Fla. 341
• 87 So. 912

Syllabus

<p>1. A contract for street improvement provides “that fifteen per cent of the entire contract price shall be retained and held by the city * for a period of thirty days after the completion of said grading, paving and curbing of said * Avenue, and that said per cent, of said contract shall be held and retained by the said city * for the purpose of having a sufficient sum of money to make any alterations or repairs and to do any work the contractors may neglect, fail or refuse to do,” and also “that before the last payment is made to the contractors, that said contractors shall produce to the city good and sufficient proof that all bills for labor and material furnished or performed, in reference to said street, by other persons to the contractors, have been fully paid. It is the intention herein that the contractors shall show that they have paid for all work and material before they receive their last payment for work and material under this contract.” Held, that such provisions are not so definite as to clearly evince an intention upon the part of the contracting parties to create a trust fund for the benefit of unpaid creditors of the contractors who might have supplied labor and material to them in prosecuting the work under the contract. Whitfield, J., dissenting.</p> <p>2. In order that a promise made by one person to another for the benefit of a third 'person shall constitute the first the debtor of the third and entitle the third person to sue the first on such promise, it must appear that there was a clear intent upon the part of both the first and the second that the first person shall become such debtor. The mere fact that the third might be benefited is not sufficient.</p> <p>3. The purpose of the statutory provision that “any civil action at law may be maintained in the .name of the real party in interest” is to relax the strict rules of the common law so as to enable those directly interested in, but not parties to, a contract, to maintain an action f