8 S.E.2d 135 | Ga. Ct. App. | 1940
The provisions of the act of 1916 (Ga. L. 1916, pp. 94, 95; Code, §§ 23-1705 et seq.), requiring bonds from contractors engaged in the construction of public buildings and other public works, conditioned "for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract," are for the protection of one furnishing materials to a subcontractor of the contractor, to be used in the construction of a public building, and an action may be maintained on such bond in the name of the materialman against the contractor and the surety on the bond to recover the purchase-price of materials furnished to the subcontractor and actually used in the construction of the public building.
This question has been decided adversely to the contention of the defendants in Whitley v. Bryant,
Under Code, § 23-1705, the bond required of the contractor shall be "for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract . . saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons, under, or for the purpose of, such contract, and for a compliance with the laws appertaining thereto." Under a proper construction of this section any person furnishing labor and materials to a subcontractor of the contractor, where the labor and materials furnished are for the purpose of the contract, comes under the protection of the bond. While Code, § 23-1708, provides that a person furnishing labor or materials to the contractor for the purpose of the contract may intervene in a suit instituted on the bond of the contractor, or by the obligee named therein, it also provides that "any other person having a cause of action on such bond shall have the right to intervene and be made a party to such action, and the court shall determine the rights of all parties thereto." Therefore, under the provisions of Code, § 23-1708, a person furnishing labor or materials etc., to a subcontractor for the purpose of the contract, who under § 23-1705 comes within the protection of the bond, may intervene in a suit by the obligee on the bond. Therefore, Code, § 23-1708, does not, as contended by counsel for the plaintiff in error in this case, exclude from the benefits of the bond persons furnishing labor or materials to a subcontractor for the purpose of the contract.
However, counsel for the defendants contends that Whitley v.Bryant, and Western Casualty Surety Co. v. Fulton SupplyCo., are wrong, and are not in harmony with Pittsburgh PlateGlass Co. v. Peters Land Co.,
None of the Georgia cases cited by the defendants dealt with a statutory bond given by a contractor to construct a public building, the giving of which bond is absolutely essential to the validity of such contract, and they are not authority against the rulings of this court in Whitley v. Bryant, supra, andWestern Casualty Surety Co. v. Fulton Supply Co., supra, which rulings are now followed and approved in the decision of this case. The contention made by the defendants is contrary to the great weight of authority. See annotations, 111 A.L.R. 311 and 70 A.L.R. 308. In United States c. v. American Surety Co.,
The decision in American Surety Co. v. Small Quarries Co., supra, is not authority to the contrary. In that case, with one justice dissenting, the Supreme Court held that the bond therein dealt with was not a statutory bond, in that the condition provided in the statute under which it was purported to have been made, that the bond was given "for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of" the contract, was not incorporated in the bond therein sued on, and that such words would not be read into the bond as actually made between the parties. The bond sued on in this case provided that the obligor was bound to the owner "for the use of said obligee and all persons doing work or furnishing *292 skill, tools, machinery, supplies or materials under or for the purpose of the contract."
It is our opinion that the trial judge did not err in overruling the general demurrer of the defendants.
Judgment affirmed. Sutton and Felton, JJ., concur.