Prestige Furniture Corp. v. King-Hunter, Inc.

PARKER, Judge.

The motion for summary judgment was properly allowed. Nowhere in any of the voluminous pleadings in this case has any party alleged that the failure of the roof was in any way due to any defect in the materials manufactured by Fry or in Fry’s specifications for installing those materials. Indeed, insofar as allegations in the pleadings are concerned, failure of the roof was due either to faulty design in the drainage system or to failure on the part of Stroup to install the roof in accordance with the applicable Fry specifications. All of the testimony and evidence which was presented at the trial which took place among the three original parties was directed to establish one or the other of those causes for failure of the roof, for neither of which was Fry in any way responsible. No genuine issue has been presented that the roof failure was in any way caused by defect in the Fry materials or in its specifications for application of those materials.

This leaves as the only ground upon which Stroup seeks to rest its claim for recovery against Fry the execution and delivery by Fry to Prestige of the twenty-year bond. By its terms, this bond runs only in favor of Prestige and not to any other party. Thus, any right which Stroup may have under this bond could only be such as Stroup may have obtained from Prestige by virtue of the written instrument dated 30 June 1972 by which Prestige assigned to Stroup all of its rights, title and interest in this civil action. It should be noted that in this action Prestige asserted no rights as against Fry, either under the bond or otherwise, and it is questionable whether any rights under the bond were transferred to Stroup. However that may be, and even if it be conceded that Stroup as assignee of Prestige has such rights against Fry as Prestige may have had under the bond, summary judgment dismissing Stroup’s action was still proper. By the terms of the bond Fry obligated itself to repair only damage “caused by ordinary wear and tear by the elements,” and no genuine issue has been raised that the damages were due to the causes referred to in the bond.

The judgment appealed from is

Affirmed.

Judges Campbell and Vaughn concur.