Elliot Shiels Planing Mill Co. v. American Automobile Insurance Co.

McDONALD, Chief Justice.

This is a summary judgment case, and arose out of the same factual situation as involved in Frymire Engineering Co. v. City of Mesquite, Tex.Civ.App., 331 S.W.2d 380. The City of Mesquite contracted with Caplan & Miller for Caplan & Miller to build a fire station for the City. Cap-lan & Miller defaulted and the City completed the job out of the retainage. Thereafter, Frymire, a furnisher of material to Caplan & Miller, who had not been paid, filed suit against the City asserting a lien against the retainage. The City deposited the balance of the retainage in the…