Cerp Construction Co. v. J. J. Cleary, Inc.

Plaintiff Cerp, a subcontractor, sues Trapani, the owner of the construction site, for the amount due it for work ordered by Cleary, the purported general contractor. Recovery is sought on two theories: first, that plaintiff is the third-party creditor beneficiary of a cost-plus contract between Trapani and Cleary; and second, that Cleary was acting as agent for Trapani, relative to plaintiff’s work as subcontractor.

Plaintiff has failed to show it is a third-party creditor beneficiary under the primary construction contract, which provided for payment of construction costs, plus 10%…