53 Ga. App. 804 | Ga. Ct. App. | 1936
The Standard Oil Company of New Jersey, on January 16, 1934, brought an action against Jasper County and its county commissioners for the purchase-price of certain gasoline sold by the plaintiff to Copeland-Wey Incorporated, and used by the latter in the construction of a State aid highway running from Monticéllo in Jasper County to the county line in the direction of Covington, Georgia. The petition was in seven counts, of which only a few allegations need be stated. The first count alleged an indebtedness of $2832.99; that in September, 1931, a contract was made between the State Highway Department and Jasper County for the construction of projects numbers 193-A and 649-A, the county agreeing to furnish and deliver all the material and to perform all the necessary work; that the county procured CopelandWey Incorporated as contractor to perform certain work and to furnish material for it; that the plaintiff furnished to the contractor certain material used in the construction of the road to the amount of $2831.99; that payment was demanded of the contractor, which refused pay and informed the plaintiff of its inability to pay; that the contractor was insolvent; that the county did not take from the contractor the bond required by the act of August 19, 1916 (Ga. L. 1916, p. 94; Code, § 23-1705); that the petitioner had demanded payment, which the defendants refused; that the plaintiff would sustain loss in said sum because of the failure to take the bond required by the act of 1916 (Code, §§ 23-1704, 23-1705); that the contractor had completed its work, and the amount sued for was due; and that the petitioner had filed with the defendant notice of its claim within twelve months from the time the same became due and payable and within twelve months from the final completion of the work. The second count contained the same allegations as count 1, except that the amount claimed was $1562.99, and there was an allegation that the defendants received the benefit of the material making up the account, and used the material to improve its roads and highways; and that it would be a fraud on the plaintiff not to hold the defendants liable for the material so used by it. Count 3 contained,
The plaintiff amended its petition by substituting the figures “679-A” for " 649-A,” and by adding to each count a new paragraph which alleged that the material was used on a paved road beginning at Monticello, Georgia, and extending to the Newton County line, a distance of 13.269 miles, on State route 11 of the highway system of Georgia, and forming one complete paved road. To this amendment were attached copies of the contracts between
The defendants answered all counts with general denials of liability, and, as to counts 1 and 2, with a denial of any necessity for taking bond from Copeland-Wey Incorporated, because there was no valid and binding contract between Jasper County and said contractor, and a denial that the plaintiff had suffered loss by failure of the defendants to comply with the act of 1916. The answer to each count was amended by adding a paragraph which alleged that the right of action of the plaintiff, if any it ever had, accrued or became payable more than one year before the presentation of the claim and more than one year before the filing of the petition, and therefore it was barred. The case was referred to an auditor, who reported in favor of the defendant on the ground that the claim was barred by the statute of limitations. To this report the plaintiff filed exceptions of fact alleging that the auditor’s finding was contrary to law and to the evidence and without evidence to support it. On the trial of the exceptions the court directed a verdict in favor of the defendants. The plaintiff excepted.
The evidence need not be detailed. There is no conflict as to the facts which must determine the decision of the case. Jasper County made certain contracts with the Highway Department, as alleged in the petition. The county in May, 1931, made a con
By the terms of the contract between the plaintiff and Copeland-Wey Incorporated the whole of the plaintiff’s account had become due by July 1, 1932. Since the Code, § 23-1602, provides that “all claims against counties must be presented within twelve months after they accrue or become payable,” it is necessary to determine when a claim such as the present one “accrues or becomes payable.” The act of 1916 (Ga. L. 1916, p. 95; Code, § 23-1706), which declares that a public body “ shall be liable to all persons furnishing labor, skill, tools, machinery, or materials to the contractor,” for any loss resulting to them from the failure to take bond, does not prescribe the time when the loss shall be deemed to have resulted, or any time during which the public body may be called upon by demand or by suit to pay the furnisher of labor, materials, etc. When bond is given, any action thereon is limited to one year from the completion of the contract and the acceptance of the work by the proper public authorities. Ga. L. 1916, p. 97; Code, § 23-1709. But it was held in Decatur County v. Southern Clay Mfg. Co., 34 Ga. App. 305 (129 S. E. 290), that a material-
It is contended that the contract between the plaintiff and the contractor was so modified, on November 4, 1932, as to make the plaintiff’s account payable when the contractor completed all its projects in Jasper County and when the same were accepted and final estimates paid to the contractor, and that the evidence showed the suit was brought within a year from the time when the account became due. This contention can not prevail, because no consideration was received by the plaintiff for the agreement made after the due date of the account which was then past due. Consequently when the contractor became insolvent in December, 1932, the plaintiff could then have brought suit, notwithstanding its gratuitous agreement not to sue before the projects were completed. Bowdon Oil Co. v. Bank of Bowdon, 32 Ga. App. 206 (122 S. E. 723); Millsaps v. Hayes, 38 Ga. App. 483 (144 S. E. 326); Brooks v. Jackins, 38 Ga. App. 57 (142 S. E. 574); Manry v. Phœnix Mutual Life Ins. Co., 42 Ga. App. 24 (155 S. E. 43); Barrow County Cotton Mills v. Powell, 45 Ga. App. 823 (165 S. E. 882); Holliday v. Poole, 77 Ga. 159 (2); Tatum v. Morgan, 108 Ga. 336 (33 S. E. 940); Code, § 20-115.
In counts 6 and 7 of the petition the liability of the county is based on the theory that the contractor which failed to give bond acted as the agent of the county in buying the materials, and
Judgment affirmed.