*1 ground they above decisions that are unsound and violate Code, 6-701, constitution, review, Code, Upon 2-401. § § majority regard being harmony of this court them with the Code, 64-111, 64-110 and rulings adhere to the made. §§ unsound, that are The writer thinks decisions an unwarranted extension of the mandamus and a virtual destruction of new they a motion for trial. But prosecute can be overruled justices, only by the concurrence of all six and until so overruled are binding upon the writer well as the other members of court. rule, error, writ application present showing On above 2. subsequently judgment overruling general that the defendant’s petition demurrer for mandamus the case was tried before in a jury, resulting petitioner, verdict for a judgment entered, exception of mandamus absolute was demurrer, judgment overruling general must be dismissed. Writ error dismissed. All the Jusiices concur. Duckworth, J., specially. concurs
No. 15043. October 1944. Oollins, and Joseph Pat Haralson G. in error. Wood, Butt, William Crawford, S. and Thomas H. John contra.
WHITLEY et al. v. BRYANT. Rehearing September 1944. denied October 14900. 1944. No. in error. plaintiffs Murphy, J. C. Gardner, W. L. contra. Bryan, D.
J. Justice. This comes us on certiorari Presiding Jenkins, It was a suit on a Appeals. contractor’s the Court labor, material and furnishing compliance one 23-1705, to the State Code, Highway Department for the a contract for certain public A works. performance faithful suit was brought within less than originally twelve months from the date of the of the contract completion and the acceptance suit, work authorities. however, That dis missed, and the now before us was more than twelve *2 after the work, months and completion of said acceptance six within months after the dismissal suit; of the prior and it is thus sought to the time comply requirement to its institu by Code, tion the of invoking provisions 3-808, the relating § the renewal of actions which would otherwise be barred under the statute of limitations. The question presented is whether section 23-1709, which provides that “No action can be instituted on said- after the year completion bond one of the said contract and the of said acceptance work public building public by the proper authorities,” should be treated as a condition annexed to a of action created the or whether right it constitutes a statute of If merely limitations. the former interpretation be correct, under then of authority Parmelee v. F. & Savannah W. E. Ry., 686), Ga. S. and Chamlee Co. Lumber Crichton, 136 Ga. S. E. action would too late, while if latter interpretation be correct the renewal statute in section 3-808 as embodied would be given application and the maintainable. would be It cannot be suit said that the case is We decision. have read and easy one of considered the majority of the opinions and Court of Appeals, both of dissenting which are considered and strongly presented. well We have also had the briefs from counsel, able painstaking benefit presenting each After a full consideration side of of all question. of this val after aid, and additional research our own, uable the question one of considerable difficulty. remains still The syllabus in the of the Court of Appeals seems to majority opinion base its ruling, 23-1709, Code, provides merely that limitation and does an inherent condition to new constitute not materialmen, that largely fact favor time limit for in the bond obligee to the as well as to applies suit the material- while it is stated in the men; opinion, and that this reason might controlling legislative intent, altogether not be nev that, absence of any stated language ertheless contrary, that presumed legislature not be intended it will the words limit have double that meaning, the time to set one fixing limit for the of the action time bringing obligee a different materialman, limit for the “to whom of action is right given the first time.” The majority also stresses the fact opinion act time limit was for in provided not the paragraph created a action” in favor the material- “new cause of man, but was in a numbered placed separately paragraph applying alike. dissenting and the materialmen obligee to both the 23-1709 is a mere limi- the view that section opinion expresses exer- statute, but constitutes a condition to creation and tation statute; and in of action created right sup- cise of new had that view it is that '“whatever port urged him the action, maintain the present bring and he is shut into now under consideration act of legislature of that act.” Both the majority terms and limitations on the appear agreement proposition thus dissenting opinions one, is a action in favor of materialman new the cause of suits, statute which a time limit for imposes the same created *3 to the statement as laid down in 34 Am. agree and both apparently is, rule that “a statute which in itself 16, 7, that the general Jur. action it a an to enforce unknown liability, gives new creates a law, time within which that action may and fixes common the a statute of limitations. It is a statute of commenced, is not be the of action within the it creation, the commencement time and the the liability of and of action an condition indispensable fixes is while majority opinion, agreeing it permits.” the materialman is created in favor of action American Jurisprudence just rule quoting and while from without to take of stated, operation undertakes outlined; which have been the reasons whereas the that rule for full to the rule as application general dissenting gives opinion rule is true that the from American quoted think it We quoted. not,-as is recognized by majority should opinion, Jurisprudence but more the nature controlling, absolutely taken as be earmark. We know no reason indicium or why powerful a new of action and yet by not create cause plain statute a statute of limitations provide rather unambiguous language and See annotations in 67 A. to its exercise. L. 11. a condition than Therefore, in A. It. 1065. order to 1074; 111 L. determine here, as in all of the other legislature, meaning interpre- real statutes, tations of must be taken and language construed for at purpose the true intent and arriving of the purpose leg true, islative body. This the fact that the time being limitation all embodied, beneficiaries under the applying bond is not as a proviso to the cause of action as was the case in Parmelee Savan v. & nah F. W. Ry., and not as a condition supra, which would malee the carrse of good action as was the case in Lumber Co. Chamlee Crichton, but as a supra, separate independent paragraph in the act and as a original Code section separate independent codified, and the fact that the time limit relates both to the in the bond and obligee materialman, throw any but not strong, altogether controlling, light upon the actual intention of the was. If the rule law-making body stated American Jurispru dence and quoted absolute, majority opinion and if the stated premise dissenting to the effect that opinion cause of action only which the materialman had was to him under and by virtue of the then that would be an end to matter, and the conclusion arrived at dissenting judge would follow. But even if necessarily the rule stated American be taken as not Jurisprudence absolutely controlling, an earmark, affords, nevertheless, indicium or where applicable, intent, thus, evidence of the if powerful legislative applicable, lines of the two Court of leave a reasoning by Appeals question of considerable in much doubt. importance
This us to consideration of another and brings different phase Does act fact create the in favor question. liability the materialman and on the against bond? surety Both and minority seem to assume majority opinions it does. not, exists, If it does if the not under the statute, but in accordance on the the main difficulty *4 eliminated, at a conclusion would be arriving entirely since the from American Jurisprudence rule would not quoted apply. It the bond was true in accordance enough with the re- statute, and that the on the bond quirements liability results statute, from the of but the statute in requirements itself does a could not create cause of action not and against particular or in favor a particular defendant of The plaintiff. cause of ac- rest, under bond, would seem to not tion but on the defendant became the surety and the on the bond not by virtue of 332 statute, but his own voluntary agreement. He contracted Highway Department the benefit
with
of
materialmen
any
within the
come
terms of its protection.
who
It
might
be
a
bond,
bond is
statutory
is;
said that the
and so it
but the statute
create an involuntary liability
or
against any person
does
class
made
liability
whose
and exists
virtue
persons
solely by
statute, such, for
as statutes
example,
giving
recovery
cities and counties for
caused
damages against
injuries
mobs.
Hill v. Board of
N Y. 344
Supervisors,
See
N. E.
921).
the statute
is the
contrary,
provides
On
aof
giving
it is
when
under his
surety,
contract,
voluntary
as
in accordance with
liability
sumes the
the terms of the statute but
him,
on the bond
action arises against
not under
under his contractual
obligation which he has thus
in accordance
the provisions
assumed
of thé statute. Under
was
everyone
law
entitled to
common
enforce his rights under
This
view has
particular
been dealt with in a
agreements.
case on
with this
United States
all fours
Circuit Court of Ap
circuit, in
Kansas
eighth
City Hydraulic
P. B.
peals
Co.
Co.,
333
after the reversal
failure.’ The present
action was commenced
after the
year
within less than one
dismissal of
action,
the former
more than six months after the completion
but
of the improvement.
So, unless it is
the statute
by
last
it
protected
quoted,
is barred by
the six months’ limitation fixed
by
original statute.
In sup
defense,
its
based on the statute
limitations,
port
defendant
first
of action is
urges
right
given by statute, and the
is, therefore, a
of the
part
limitation
so that
right,
had
no
citing
of action after the
of the six
expiration
cause
months’ period;
Co.,
Pac.
65
dman
v. Mo.
Kan. 645
Ry.
642,
Pac.
(70
59
Ro
Ct.,
The
119
L. R. A.
U. S. 199
704),
Harrisburg,
(7 Sup.
In
140, 30 L. ed.
our
358).
judgment, plaintiff’s cause of action
The
is
statute.
rule invoked is
given by
applied
not
un
rights
law, and created
known to the common
solely by
such as
for death
recovery
act
right
wrongful
(The Harrisburg,
140,
358;
30
199,
119
S.
7
Ct.
L. ed.
Sup.
U.
Boston & Maine R.
Hurd,
116,
615,
108 Fed.
47
A.
R.
C. C.
56 L. R.
193;
v.
A.
Co.,
P. R.
64
v.
12
Theroux Northern
C. C. A.
52);
Fed.
cities and
damages against
to recover
counties for
right
injuries
v. Board of
119
Supervisors,
mobs
N. Y.
23
(Hill
caused
case,
In the
while the
present
E.
921).
required
N.
furnish
of action is not
created by
contractor
It
no
the defendant.
liability upon
statute.
On
imposed
arises
out of
liability
solely
defendant’s
contracts
contrary,
into
entered for a valuable
voluntarily
consideration.
In the
which
liability,
stockholders’
the cause
creating
of statutes
of action
the statute than in
upon
case,
more
closely
present
much
rests
limitation in
held that the
such statutes
it is
is not a part
and yet
The
liability, Thoirgh statutory
is con
origin,
right.
of the
Knowles,
Ramsden
nature.’
v.
151 Fed.
in its
tractual
R.
105, 108,
S.) 897).
10 L. A.
(N.
A.
limitation
C. C.
therefore,
case,
is no
part
right,
relates
present
just
The case
remedy.”
quoted
from is the
exclusively
find,
which we have been able to
whose
cited
facts
one
the same as
which bears
substantially
are
directly
However, the
we
principle
are now
problem.
discussing
our
determined
&
similarly
have been
Fidelity
Deposit
appears
Lindholm,
2d,
Fed.
A.
Maryland
(1)
Company
the Ninth Circuit Court
in which
of Appeals held:
R.L.
“The
oí a
on an
liability
surety
administrator’s bond the giving
which is
a statute
the terms and conditions
required
prescribing
thereof
created
statute’ within the
‘liability
meaning
aof
of the statute of limitations
within
provision
fixing
period
*6
which action must be
to
a
brought
enforce such
Texas
liability.”
McCord,
550,
Portland Cement Co. v.
Judgment affirmed. J., dissent. Wyatt, and who ROE MOTION REHEARING.
ON an submit their motion for line rehearing on impressive Counsel in thereof authorities which state support they argument, failed in their brief. had to discuss original argument they it, that, is as we understand under the minority urged, now since rule, committed, to this which State is a third person American a his ordinarily permitted enforce made for bene- promise that it is because the here involved ex- fit, it follows authorized the materialman sue on bond that he has pressly and action is under the stat- consequently such right, Thus, not on the bond. in what we and it will say, ute mind that there are three in involved: the questions major borne barred; as to whether the action controlling question light on the ancillary question throwing question, to controlling the cause action lies under the wit, whether statute or on the bond; mentioned, finally, throwing on the light question last whether, raised on the motion for ex- question rehearing for the express statutory authority, could sue on cept bond in his own name. Most of what in is now said response for will to the motion bear the third and last of rehearing upon named. the questions Code, 3-108, that,
While it is true that
“As
provides
rule,
contract,
the action on a
whether
or
general
express
implied,
seal,
record,
or whether
or under
or of
shall be
by parol
the name of the
whom
interest
party
such con
legal
vested, and
tract is
who made it in
against
party
person
it is also true
all
that'nearly
of the numerous decisions
agent,”
statutory
recognizing
provision,'
case of
including
leading
v.
Ga.
S. E.
Sheppard
Bridges,
245), give effect to
rule,
and have
it as a rule
exception
adopted
of proced
ure that a suit
be maintained in the
may
name of a third party
where the
has been made
promise
express purpose
con
him.
a benefit
See Carruth
ferring
upon
v. Ætna
Insurance
Life
Co.,
157 Ga.
S. E.
In the
226).
cited,
just
it was
held
headnote
quoting
Sheppard
that,
Bridges, supra,
where
is made for the
“promise
purpose of
a benefit
conferring
he be not a
contract,
person, though
party
or furnish
he can
promise,
it;”
the consideration
suit
bring
case, in
in the same
headnote
1(a),
was said: “A contract for
a third
which
person,
the benefit of
evidences an intent
to benefit
third
and an
person
such
on the
obligation
part of the promisee to
third
creates an
person,
equitable right
interest in the bene
out of the trust
ficiary, growing
relationship,
be en
may
real
or her
beneficiary
forced
personal representative;” and,
that,
in headnote
it was held
“A
1(b),
person not a party to the
*8
and not a
privy
contract
consideration
if the
may,
contract
benefit,
into for his
maintain
was entered
an action on it if he has
or
interest in the
either a legal
equitable
performance of the con
This rule was reiterated though
tract.”
not adjudicated in Stone
Coleman,
161
v.
Ga.
413 (131 S. E.
cypher
75).
It appears
rule, as
the
recognized by
the
decisions
court,
be
of this
that
Code, 3-108,
that
provisions
requiring
while
a suit be
in
“in the name of the party
whom the
brought
legal interest
in
vested,”
bars an action
a third
contract
person who
such
has
in
an incidental benefit
merely
performance, it does not preclude
in
of a
an action
the name
third
who has a
person
direct
or
legal
interest in
performance
contract,
of the
equitable
whose
for
In
Whisenant,
benefit it was
undertaken.
Reid
expressly
v.
S. E.
44 A. L.
Ga.
R.
even
(131
599),
the two dis
Justices,
a stricter
sought
who
senting
compliance
the Code
section
used this language: “By the
quoted,
weight
authority
be
action cannot maintained
because the
merely
third person
will be
benefited
incidentally
performance
contract;
must,
be a
the consideration,
but he must
or the
party
contract
been entered into
his
he must have
benefit,
some legal
for
or
interest
in its
equitable
performance.”
(Italics
Thus
ours.)
it was held
this court American Surety
Quarries
Co.
Small
v.
Co.,
33Ga.
S. E.
movant,
cited
that a ma
on the
terialman could not sue
bond in that case. The bond there
was executed to the
not,
here,
involved
did
county
contain
their
the additional words or
“for the use
equivalent,
of the obligee
skill, tools,
all
work or
persons doing
Burnishing
and of
machinery,
under
for the
or materials
of such
purpose
contract.”
But
Dawes,
Co. v.
Rehearing HOTEL CANDLER INCORPORATED v. CANDLER. Rehearing September No. 14920. 1944. 1944. denied October