135 Ga. 814 | Ga. | 1911
(After stating the facts.) The meaning of the petition as amended, construed in the light of the contracts set .forth, briefly stated, is as follows: The plaintiff, in consideration that Doss would build a dwelling of stated style and dimensions on a given parcel of land, and would enclose the land with a wire fence of a certain kind (all to be accomplished within a prescribed time), transferred to him the right to cut and remove the timber and cord-wood from the land. Contemporaneously with the signing by Doss of the last contract between him and the plaintiff, which was merely an elaboration of the original contract, Watters entered upon this second contract an agreement, signed by him, in which he undertook “to guarantee” the performance of this contract by Doss. Such agreement by Watters was without any independent consideration flowing to him, and he was not in law a guarantor, but merely a surety for, Doss for his performance of the contract. Watters entered upon the land under some agreement or arrangement between himself and Doss, and cut and removed the timber and cord-wood therefrom. Neither the dwelling nor the fence was ever
In the brief of counsel for the plaintiffs in error the following points only are relied upon, viz.: (a) The petition did not set out a cause of action. (5) Under the facts alleged, neither a joint judgment against the defendants nor a judgment against either of them was authorized, (c) “The law of an undisclosed principal.can not be invoked in this case.” (dj “In an action by the vendor, on a contract made by the purchaser in a deed, the assignee of the purchaser can not be joined with the purchaser as a party defendant.” (e) “Watters is not liable, even if any claim existed against Doss; for no one is bound by a sealed instrument except the parties who sign it.” (/) “Plaintiff must allege title, before she can recover. This is specially true as against Watters.” (g) “The agreement in the contract to obtain ratification of plaintiff's title is a condition precedent.” (h) “Purchasers who go in possession with a covenant of warranty must rely upon their warranty.” (i) “In. the case at bar there is no covenant or warranty. In this State there is no implied warranty of title to land in the sale of it, but. in the contract sued on there is an express covenant to acquire title.”
In our opinion none of these points is well taken. There was no effort to make Watters liable as an undisclosed principal, but on the contrary it was alleged that he signed an agreement whereby he became surety for Doss for the performance of his contract. If Doss went into possession of the land under the plaintiff, and in pursuance of his contract with her, and Watters was Doss's surety on such contract, and under an agreement with Doss went into the possession of the land and cut and removed therefrom the timber and cord-wood, then Doss, and Watters as his surety, would both be liable to the plaintiff for Doss’s failure to erect the building and the fence as he had agreed to do, and this is so. though the plaintiff did not allege that she had title to the land. See, in this connection, the next preceding ease of Watters v. Hertz, ante, 804; Fields v. Willis, 123 Ga. 272 (51 S. E. 280). We are unable to perceive any merit in the other points made in the brief. It follows that the judgment of the trial court overruling the demurrers must be • Affirmed.
