162 Ga. 388 | Ga. | 1926
The case was previously before this court on a certified question from the Court of Appeals. American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617). In answering the certified question then propounded this court held that “One who furnished materials to the contractor to be used, and which were used, in the performance of his contract with the county can not maintain an action therefor in his own name against the principal and surety on the bond, by virtue of the provisions of the act approved August 19, 1916 (Ga. Laws 1916, p. 94).” This ruling was the result of our conclusion that the bond was not statutory, that is, that it was not given under and in compliance with the statute just mentioned. The ruling then made is, of course, now the law of the case. From the question now propounded it appears that subsequently to the aforesaid decision an amendment was offered to the petition, making the suit proceed in the name of the “ County of Bibb as plaintiff suing for the use and benefit of Small Quarries Company.” It also appears that the bonding company objected to the allowance of such amendment, “upon the grounds that no cause of action was set out against it in the original petition; and that since no cause of action was set out in the original petition, it was not amendable; that the bond did not inure to the benefit of the plaintiff; that the plaintiff had no right of action thereon in suing for the use and benefit
The Wheeler case, cited above, was a suit on account, and the court held: “Where the legal title to a chose in action is in one person and the beneficial interest is in another, an action thereon by the latter may be amended by inserting the name of the former as suing for the use of the plaintiff.” The Holcombe case was a suit brought by an insurance company against a railroad for the negligent burning of cordwood. It was alleged that the insurance company had insured Holcombe, the owner of the wood, and had paid him the amount of his loss. The defendant demurred to the petition, on the ground that there was no right of action in this insurance company against it; that there was no privity between them; that the defendant had destroyed no cordwood belonging to the insurance company. The demurrer was sustained, and the plaintiff excepted. This court held that the declaration was demurrable as showing no privity between the parties and no right of action on behalf of the plaintiff against the defendant, but also held that the declaration “was amendable by inserting the
From a consideration of the authorities quoted and cited we are led to the conclusion that the true test as to whether the petition in this case was amendable so as to make 'it proceed in the name of the county for the use of the materialman depends upon whether the materialman “has a beneficial interest to protect.” Under the Thrift case, supra, only two things are essential to permit one to sue in the name of another for his own use; one is the holding of a beneficial interest, and'the second is the legal right to sue being in the other. What, therefore, is meant by the phrase “if he has a beneficial interest to protect?” Undoubtedly, having furnished material to the contractor to be used for the benefit of the county under a legal contract, the materialman has an interest to protect in the matter of collecting the agreed price of the material furnished. Is this the “beneficial interest” mentioned above, or does that phrase “beneficial interest” refer to some interest in the surety contract, or both? Under the previous decision, American Surety Co. v. Small, supra, it has been adjudicated that under the contract of suretyship there was no direct obligation on the part
We reply to the Court of Appeals that the amendment was not allowable. The above reply answers both questions.