121 Ga. 794 | Ga. | 1905
This case comes up on exceptions to the overruling of a demurrer to the plaintiff’s petition, and to the allowance of an amendment over the objection of the defendant that it set up a new and distinct cause of action. The petition makes substantially the following case: Joyce had contracted to bore an artesian well for the City of Albany, and as an incident to the fulfillment of his contract had become indebted to the Cameron & Barkley Company, a South Carolina corporation, on account of material used in the well. After having bored several hundred feet without obtaining a flow of water, it became necessary to change the casing, as that being used was too large to permit of further penetration of the soil; and the contract between the city and Joyce was amended accordingly. Joyce then sought to obtain further supplies from the Cameron & Barkley Company, but that company refused to furnish him any more material unless the City of Albany would agree to protect it against loss on the material that it had already furnished Joyce, as well as on whatever other material he might obtain from it to be used in the construction of the well. Joyce then communicated with the city authorities in writing as follows: “ The Cameron & Barkley Com
If in reality the agreement relied upon by the plaintiff as the. basis of a recovery was not a contract of guaranty, the mere incidental use of that word in describing the' transaction would not make the petition a suit upon such a contract, and the allowance of the amendment was not erroneous. In other words, the transaction speaks for itself, regardless of the terminology employed by the pleader; and as he is not bound in his petition to classify his. action (McNorrill v. Daniel, 121 Ga. 78), he will be allowed to amend his pleading in order to correct any looseness of phra? seology that it may contain. And we are decidedly of the opinion that the contract declared on was not one of suretyship or guaranty, but was merely an agreement on the part of the city to be bound by an assignment by Joyce of. money that might after^ wards become due him. A guaranty is an obligation to pay the debt of another on consideration of a benefit flowing to the guarantor. 6 Enc. Dig. 811, citing Civil Code, § 296=6; Manry v. Waxelbaum, 108 Ga. 17. Except incidentally, there was no obligation on the part of the city in this case to pay the plaintiff' any debt due it by Joyce. Until Joyce fulfilled his contract and' the city became indebted to him, it could under no circumstances become liable to the plaintiff. It undertook to pay not a dollar in addition to the sum for which it would be bound in any event. It merely agreed, with the consent of the contractor and at his request, to divert a part of the amount which it would be due him upon the fulfillment .of his contract, and pay it to the plaintiff. We can not see that it makes any difference that the sum sued for was made up partly of money that Joyce already owed the plaintiff at the time the agreement was made by the city, and partly of an indebtedness that arose subsequently thereto. We. know of no legal obstacle to prevent a municipal corporation from consenting to an assignment, by a contractor with whom it has
Judgment affirmed.