19 S.E.2d 737 | Ga. Ct. App. | 1942
A petition in a suit by a materialman for material furnished under a highway contract brought against the contractors and the surety company, which shows the furnishing to the contractors of "skill, tools, machinery or materials under or for the purpose of such contract, consisting of connecting rods, head gaskets, spark plugs, brake fluid, hand gaskets, belts, gears, battery cable, clutch facings, brake parts, batteries, bolts, washers," and similar articles, sets out a cause of action for recovery on a surety bond given under the Code, § 23-1705. This is true, notwithstanding the skill, tools, etc., were furnished and used on two projects, only one of which was covered by the bond, where the materialman can show what proportion of them went into the project covered by the bond. The petition, as amended, alleges this, and is therefore good as against general demurrer.
Barber demurred to the petition as amended on the ground that it appears from the petition that no cause of action is alleged against him, and because it does not appear what "skill, tools, machinery or materials were used and consumed" in the project covered by the bond, and because it affirmatively appears from the petition "that the items sued for were not used or consumed solely on the project covered by the bond sued on and did not specially contribute to the execution of the contract covered by the bond sued on and nothing else, it affirmatively appearing that the articles sued for were properly chargeable to the plant and equipment of the contractor and were available and used not only for the work covered by the bond sued on but for other work as well." St. Paul Mercury Indemnity Company, separately demurred to the petition as amended on the same general grounds. The judge sustained the demurrers and dismissed the action, reciting in his order as follows: "I can not escape the logic of the contention of the defendants that notwithstanding the fact that these several highway projects described in the petition were contiguous, that is to say, they adjoined each other on the same highway, nevertheless, they were separate jobs, separate contracts, and the skill, labor, and material furnished were not only of such a character that they could be used on other jobs, other contracts, but as a matter of fact they actually were used on these two separate jobs of contiguous highway pavement." The judge then stated in his order that for such reason and under the authority of Yancey Brothers Inc. v. American Surety Co.,
The Code, § 23-1705, provides that one contracting to construct or grade a public highway shall give a bond "for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges *239
that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons under, or for the purpose of, such contract." A bond given under this section is to be liberally construed to effect the purpose of the law in requiring contractors to execute such bonds. SomersConstruction Co. v. Atlantic Coast Line Railroad Co.,
It follows that the court erred in sustaining the general demurrer to the petition.
Judgment reversed. Sutton, J., concurs. Felton, J.,dissents.