263 So. 2d 858 | Fla. Dist. Ct. App. | 1972
This appeal is by the plaintiff in a third party complaint from an order dismissing the third party defendant Gladding Corporation. The third party complaint alleged default by Gladding Corporation under a certain written contract made by it and its subsidiary with the third party plaintiff and another.
The defendant Gladding moved to dismiss, contending the third party complaint failed to state a cause of action for the reason that it affirmatively appeared therefrom that the defendant Gladding had fully performed under the said contract.
The third party complaint alleged breach of the contract by Gladding, by failure to make certain payments as provided for therein. On examination thereof, we find no merit in Gladding’s contention in its motion to dismiss that the third party complaint shows performance by Gladding. We hold the third party complaint was sufficient to require response by the defendant Gladding.
The order of dismissal appealed from is reversed.
