29 S.E.2d 662 | Ga. Ct. App. | 1944
The petition as amended set forth a cause of action against all of the defendants, and the judge of the superior court did not err in overruling the general and special demurrers to the petition and the amendments thereto.
The contract between the State Highway Board and Saunders and Perkins was canceled before the project was completed; and this suit was filed more than one year after the cancellation of the master contract. The plaintiff alleged, as the reasons for not bringing suit within a year of the cancellation, his ignorance of the cancellation and his not having received any kind of notice thereof.
The defendants filed both general and special demurrers, all grounds of which were overruled by the trial judge. In his order the judge recited that amendments filed by the plaintiff met, in his opinion, all the objections raised by the special demurrers, and that the only ground of the general demurrers which gave any serious difficulty was the ground attacking the action as showing on its face that it was barred by the statute of limitations, which he overruled on the reasoning that the statute should be strictly construed, and therefore it could not be read into the statute that the intent of the legislature was to include "cancellation" as "completion and acceptance." The bill of exceptions assigns error on the overruling of the demurrers.
1. It will be noted from the above facts that this petition was brought against the National Surety Corporation, hereinafter called surety, in Glynn County, Georgia, and alleged that it was a foreign corporation with an office and place of business in Glynn County, and that service was perfected on the other two defendants. who resided in counties other than Glynn. There were several grounds of the general demurrer. We think that one only is deserving of consideration, that is, whether the surety is liable at all, under the allegations of the petition. If the surety *840
is not liable, then it necessarily follows that the suit fails as to the other defendants, since they are not residents of Glynn County. See Boatenreiter v. Williams,
It is not contended in the argument here that the petition alleged facts sufficient to arrest the running of the statute of limitations, under the principle set forth in American NationalBank of Macon v. Fidelity and Deposit Co.,
2. The contract sued on is in the form of a letter from Saunders and Perkins, addressed to J. D. Wright. The letter concludes with the statement that "if the above rental agreement meets with your approval, your signature below will be a good and binding agreement." The signature of J. D. Wright, the addressee, and that of C. A. Wheldon, appear at the bottom of the letter. One *842 special demurrer to the petition is grounded on the contention that the contract appears to be a joint one, and that C. A. Wheldon was not made a party. The petition alleges that the defendants are indebted to the plaintiff on the contract sued on. Whether that is true or not does not appear on the face of the petition. The answer to that question depends on what the evidence shows. The return of the letter to Saunders and Perkins with two signatures was a counter-proposal by Wright and Wheldon, as well as an acceptance by Wright, depending on what action was taken by Saunders and Perkins. They could have accepted the counter-proposal by the two men, in which event the contract would have been a joint one, and in which event C. A. Wheldon would have been a necessary party to an action on the joint contract. If the counter-proposal was not accepted, and if Saunders and Perkins refused to deal with Wheldon, and dealt solely with Wright in carrying out the contract, the action could proceed as brought. The petition does not show on its face that Wheldon was a necessary party, and this demurrer was properly overruled. It was not error to overrule the general and special demurrers.
Judgment affirmed. Sutton, P. J., and Felton, J., concur.