136 Ga. 849 | Ga. | 1911
The plaintiffs in error filed, in the court below, suit agajnst, fil. C. Seiz as principal, and iEtna Indemnity Company as surety, on a bond, given for the faithful performance of a contract for. .the erection of a dwelling. The suit was instituted to recover from the defendants the amount of a judgment in favor of certain materialmen, obtained by them in a lien-foreclosure proceeding against the property of the plaintiffs above referred to, growing out of. th.e. erection of the building by the defendant Seiz, and his failure to pay said materialmen’s claims. It was alleged that this judgment had been paid off and satisfied by the petitioners. The Indemnity Company demurred generally to the petition, which demurrer was sustained, and the plaintiffs excepted.
It is contended by the defendants in érror that the demurrer was jjroperly sustained!, on the ground that the suit was not brought within the time required by the following provision contained in the.bond: “If any suits at law or proceedings in. equity are brought against said surety to recover any claim hereunder, the same must be instituted within six months after the completion of the work specified in said contract.” It is evident from the allegations of the petition that this suit was not instituted within the time stipulated in the foregoing clause of the bond.
On the other hand, it is contended by the plaintiffs in error, that, since materialmen have twelve months from the time their claim becomes due in which to commence a proceeding to foreclose the same, the foregoing clause of the bond is at variance and irreconcilable with the following clause contained therein, to wit: “The surety shall not be liable under this bond to any except the obligee, but it is agreed that the obligee, in estimating his damage, may include the claims of mechanics and materialmen, arising out of the performance of the contract, and paid by him, only when the same, by the statutes of the State where the contract is to be performed, 'are valid liens against his property.”
A former suit, instituted by the same plaintiffs against these defendants to recover the amount claimed by the same materialmen whose judgment is referred to in the present suit and who were then proceeding to foreclose the same, was dismissed by this court on the ground that the same was prematurely brought, it appearing from the petition in that case that the liens so set up had not been paid bv the plaintiffs, and it not being alleged that the same
This ease is controlled by the ruling above quoted; and the petition was properly dismissed on demurrer, because the same was not filed within the time required by the terms of the bond.
Judgment affirmed.