44 Ga. App. 769 | Ga. Ct. App. | 1932
Koehring Company brought an action against American Surety Company of New York, in the' superior court of Eulton county, to recover the agreed rental of a dragline crane leased to
The single question for our consideration is whether or not the stipulated rental for machinery furnished and used in the prosecution of the work under the contract comes within the purview of the condition of the contractor’s bond. It appears from the briefs of counsel that courts in different jurisdictions, having the identical question for adjudication, have arrived at precisely opposite conclusions; and that neither of our appellate courts has heretofore had the question presented. Perhaps the nearest approach to such a case in this State is that of Yancey Bros. Inc. v. American Surety Co., 43 Ga. App. 740 (160 S. E. 100), wherein a recovery was held permissible for labor and materials used in incidental repairs to a contractor’s equipment employed in the prosecution of work under such a contract. It is pointed out that several of the Federal courts, including the Supreme Court of the United States Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 Sup. Ct. 614, 61 L. ed. 1206), as well as a number of State courts, have held the surety liable for Tental of equipment or machinery in similar circumstances, while, as indicated, courts of other jurisdictions have' adopted the contrary view. We are in accord with the recognized view that the condition of such' bonds should be given a liberal interpretation. It is true that courts generally, including our own (Yancey Bros. Inc. v. Am. Surety Co., supra), have refused to permit a recovery of the purchase-price of machinery and equipment furnished to a contractor; but we think there is a reasonable distinction to be drawn between the purchase-price of machinery, on the one hand, and the rental value thereof on the other. While the action was not brought, as suggested by counsel for the plaintiff in error, for compensation for wear and tear upon the machinery
We perceive no error in the judgment of the trial court overruling the general demurrer.
Judgment affirmed.