Nesbitt v. Brothers of the Order of Hermits of St. Augustine

SCHWARTZ, Chief Judge.

We agree with the position of the defendant Order, asserted on cross-appeal, that as a matter of law the plaintiff-appellant Nesbitt is not entitled to recover. Nesbitt sued as the third party beneficiary of a contract in which the Order agreed to pay the college expenses of Nesbitt’s children in return for one O’Malley’s voluntary dismissal of a federal court suit O’Malley was maintaining against the Order. Since it is uncontradicted that O’Malley did not dismiss the suit, the Order had no obligation to pay the expenses claimed. See Binz v. *345Helvetia Florida Enterprises,…