George W. Muller Bank Fixture Co. v. Southern Seating & Cabinet Co.

147 Ga. 106 | Ga. | 1917

Atkinson, J.

The' allegations of the petition are to be con-

strued in connection with the contract of assignment between the-defendant company and the plaintiff, and also the power of attorney executed by the defendant to the. plaintiff; copies of which were attached to the petition as exhibits. The defendant Morgan was not a party to either of these papers, and the petition is not to be construed as alleging any contractual relation between plaintiff and Morgan. The allegations as to payment by Morgan to the plaintiff of portions of the contract price, from time to time, should be construed as allegations of payment to the defendant company with whom Morgan had his contract; the plaintiff collecting them in a representative capacity in pursuance of its written power of attorney. To hold otherwise would require a strained construction in favor of the pleader. It would amount to a holding that Morgan, though not a party to the writing,' had discharged the defendant company and accepted the plaintiff as a substituted contractor; a result entirely foreign to the provisions of the contract, and evidently not contemplated by the parties. In the absence of contractual relation between Morgan and the plaintiff, it was but natural that Morgan should raise no- objection to the defendant company engaging the plaintiff to perform its work under supervision of the architect, and to allow the plaintiff to collect payments during the progress of the work under power of attorney. If a substitution of the plaintiff for the defendant company had been contemplated by all of the parties, Morgan would have been a necessary party to the contract, and there would have been . no occasion for the power of attorney from the defendant' company to the plaintiff. Construing the petition as not alleging any contractual relation between plaintiff and Morgan, an instance is presented of a plaintiff joining in one action a party defendant with whom he has a contract, and another party défendant with whom he has no contract, and against each of whom he seeks general judgments in personam; in one instance, for an amount due the plaintiff under its contract, and in the other instance for an amount due plaintiff’s contractor by the other defendant in the case. It may be otherwise stated as an effort by an alleged creditor to join in one action his own debtor and the debtor of the latter; against whom the first had no cause of action, for the purpose, first, of rcovering a judgment against his debtor, and, to the end that he might facilitate the collection of his judgment, that he be allowed in his own name, or in the name of his debtor, to obtain in the same action a general judgment against his debtor’s debtor. Under the circumstances, Morgan would not be interested or afEected by any relation between the plaintiff and defendant company, nor by any accounting between them, nor by the result of the injunction feature of the petition, whereby it was sought to enjoin the pending action in the city court of Atlanta. As this was an efEort to join in one action separate and distinct claims' against different parties, where there was no common right to be established, the petition was subject to demurrer upon the ground that it was multifarious. Civil Code, §§ 5523, 5419, 5515; Stuck v. Southern Steel Co., 96 Ga. 95 (22 S. E. 592); Van Dyke v. Van Dyke, 120 Ga. 984 (48 S. E. 380); White v. Worth Georgia Electric Co., 128 Ga. 539 (58 S. E. 33). In Ansley v. Davis, 140 Ga. 615 (79 S. E. 454), a petition was held subject to demurrer upon the ground that it was multifarious. There were other grounds.of demurrer which went to the merits of the defendant’s claims as to causes of action alleged in the petition. It did not appear upon which ground of demurrer fhe petition was dismissed, but it was held that the judgment would not be reversed, for it was proper upon other grounds. .Accordingly the judgment was affirmed upon the ground, as indicated. With respect to the other matters alleged, it was said, in the course of the opinion:' “If we should pass upon the merits of the several claims, it would be possible for a plaintifE to include in one action a multitude of disconnected claims against as many separate persons, and thus procure a decision upon the merits of each, .and in effect avoid the rule above announced against joining in one action separate claims against separate persons.” Applying the rule last stated, no decision will be made on the merits of the several claims set out in the petition in this. case.

Judgment affirmed.

All the Justices concur.