Opinion
No. 68-558.
March 25, 1969. Rehearing Denied April 18, 1969.
Appeal from the Circuit Court for Dade County, Ralph O. Cullen, J.
Milton E. Grusmark, Miami Beach, and Natalie Baskin, Miami, for appellant.
Dubbin, Schiff, Berkman Dubbin, and Paul E. Gifford, Miami, for appellee.
Before CHARLES CARROLL, C.J., and PEARSON and HENDRY, JJ.
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 Wometco 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.