Summary
Equitable petition. Before Judge Pendleton. Eulton superior court. June 20, 1916.
The -bill of exceptions, assigns error on a judgment sustaining certain demurrers to a petition and dismissing the action brought by George W. Muller Bank Fixture Company in the superior court of Fulton county. The defendants were E. Morgan, a resident of Chatham county, and the Southern Seating and Cabinet Company (hereinafter called the company), with its principal office in Jackson, Tenn. The petition alleged the following, in substance: All of the parties were building contractors. Morgan had a contract to remodel and make certain improvements on the bank building of the Georgia State Savings Association in the City of Savannah, for which he was to receive about $34,000, if completed within four months, the time specified within which the work should be performed. Morgan sublet the inside work of the building and other parts thereof to the defendant company at the price of about $16,-000. At the end of about two years the company, having failed to finish its contract with Morgan, made a contract with plaintiff to finish the work. This contract, omitting the formal parts, was as follows:
“This agreement made the 13th of January, A. D. 1912, between Southern Seating & Cabinet Company, of Jackson, Tenn., of the first part, and George W. Muller Bank Fixture Company, of Atlanta, Ga., both parties being duly incorporated companies of the said respective States, witnesseth: Whereas the first party made contract with E. Morgan, of Savannah, Ga., to perform and do the things detailed and required under part three of the specifications and plans of H. W. Witcover, architect, for the improvement of the building and office of the Georgia State Savings Association of Savannah, Ga., and whereas the first party has partly performed the said contract, but is ready and willing to retire therefrom and have the second party perform and complete the said contract according to the said plans and specifications, or at least to the satisfaction and acceptance of the said Georgia State, and said architect and E. Morgan, without offset or counter-charge. Now, therefore, this agreement witnesseth that the said party of the second part, in consideration of the sum of fifty-six hundred dollars to be paid them by the said E. Morgan, contractor, (the said first party assigning all amounts coming to them out of said contract to the second party) doth covenant and agree to underwrite, complete, and perform the said contract made by the first party with E. Morgan, according to the said plans and specifications, or at least to the entire satisfaction of the said Georgia State. It is further covenanted and agreed that the said second party will complete the said contract in all respects within ninety days from the date of these presents. It is further covenanted and agreed that the said second party will look solely to the said E. Morgan for payment for the work, labor, and services done by the said second party in the completing of the said contract, and the second party shall bo entitled.to all moneys under the contract with the first party and E. Morgan, except as hereinafter shown. It is further agreed that it is understood and stated by the said E. Morgan that there is a balance of $6512 odd cents, that would now be payable to first party if the said contract had been completed. The second party is hereby authorized by the first party to collect the entire amount that may be due and payable by the said E. Morgan to the first party, payments to be made as provided for in part one of the said plans and specifications. The second party, however, agrees to pay to the first party, upon the completion of the said contract, the amount of $912 odd cents, said payment to be made on the said completion of the said contract, the second party giving its note .for the said amount, due 100 days after date hereof (being the time at least within which completion should be made). In the event -there shall be no deduction made by reason of the curly birch-that has been used on said contract, the second party agrees to pay the first party an additional six hundred dollars, upon the completion of the said contract. The second party shall have the right to use any and all material on the said job owned by the said first party without extra charge. The first party guarantees -to the second party that there are no unpaid bills for work done or material furnished by the first party on said job, to any other person whatsoever, and to indemnify and hold harmless the second party against any such bills, for work or material or labor, liens or otherwise, incurred by the first party on account of said job, prior to the date of these presents or the time when the second party put its men on the said work. The second party agrees to give bond, with surety acceptable to first party, to indemnify and hold harmless the first party in the performance of this present contract expressed in these presents, and for the payment of all bills for labor and material and work done in the completion of the said contract, said bond to be in the sum of $1,000.00. The first party, in consideration of the premises, does hereby assign, transfer, and set over unto the second party all of the moneys due to or become due by the said E. Morgan to it by reason of the said contract had and held by the first party with the said E. Morgan on the said Georgia State Savings Association contract and building, the excess of said moneys over and above $5,600.00 to be collected by the second party and accounted for to the first party as hereinbefore provided for; the intent of these presents being, that, in consideration of this assignment and transfer, the said second party agrees to underwrite the said contract with E. Morgan, take and [taking?] place of a contractor for the completion of the same, and to pay over to the said first party the said excess over $5600.00 on the completion of the said contract; and if the said curly birch is for any reason accepted and no deduction is made on said account therefor, the second party is to pay the sum of $600.00 in addition to the said excess over $5600.00 to the first party.”
Concurrently with the execution of the foregoing contract, the company gave to the plaintiff a written assignment of all moneys coming to it from Morgan under the contract, which assignment, omitting formal parts, is as follows:
“Know all men by these presents, that we, Southern Seating & Cabinet Company, a corporation, having fully assigned and set over unto the George W. Muller Bank Fixture Company, of Fulton County, Georgia, all sums that are due or may hereafter become due to us by E. Morgan, of Savannah, Georgia, by virtue of the work done and services performed by us in improving the property of Georgia State Savings Association of Savannah, Ga.: Now, therefore, we do hereby authorize and empower the said George W. Muller Bank Fixture Company, upon the completion of the said’ contract made by us with said E. Morgan, and from time to time’ as the same is being completed, to collect from the said E. Morgan in our name, place, and stead all sums that may be due and owing on our contract with the said E. Morgan, all such payments made by said E. Morgan to our said assignees being hereby acknowledged to be authorized and proper; and we hereby acquit the said E. Morgan from any claim or liability on our part in making any such payments to the said George W. Muller Bank Fixture Company during its completion and upon, completion of the said contract.”
At the time of making the contract the plaintiff and the company estimated that it would take about 100 days to complete the work, and the plaintiff gave its note to the company for $912, due in about 100 days thereafter. When the note became due the plaintiff had not completed its contract; and the note was renewed for the same amount, to become due in 50 days. Plaintiff was paid at intervals the sum of $4596.50, leaving a balance due of $1916 which Morgan refuses to pay, on the ground that the defendant company has damaged him in that amount on account of its long delay, the delay having occurred before plaintiff took charge of the work. Plaintiff demanded the balance from 'Morgan, but he took the position that he had never recognized plaintiff as a “separate and independent contractor,” and that there was no contractual relation existing between him and plaintiff; and he proposed to withhold the amount to cover his damage sustained on account of delay in completing the work. When the renewal note for $912 fell due, the defendant company instituted a suit thereon in the city court of Atlanta. A defense was filed; but, being unfamiliar with the merits of the claim of Morgan, plaintiff was not prepared to properly defend the suit in the city court. The note and the contract with the defendant company constitute the same contract, and are to be construed together; and when so taken, plaintiff “does not owe said note,” and the said note “is without consideration,” the same having been given for the amount coming to the defendant company from Morgan, over and above $5600 which plaintiff was to collect for the defendant company, plaintiff being liable only for the amount in the event it collected the same from Morgan. Morgan did not claim any damage from plaintiff, but only against the defendant company. If Morgan recovers against the defendant company and the recovery amounts to the balance due plaintiff, the defendant company will be liable to plaintiff under this contract for such amount, “less any amount which your petitioner may owe to said company.” While plaintiff was to look to Morgan for its money, it did not assume responsibility for previous damage, nor did plaintiff know of any such claim for damage at the time it contracted to do the work. Upon the facts alleged the following prayers were set forth: (1) That the defendant company be enjoined from prosecuting its suit in the city court. (2) That on the trial the defendant company recover from Morgan, for the use of plaintiff, the sum of $1916, the balance due under the contract. (3) That all of the issues involved in the. contracts between the defendant company and Morgan and all the issues involved in the contract between the plaintiff and the defendant company be tried in one ease. (4) That whatever amount the defendant company may recover from Morgan go as a credit on the plaintiff’s claim against the defendant company, and that all the equities and rights claimed by plaintiff against the defendant company and all of the equities and rights claimed by the defendant company against Morgan be tried in this ease, and a decree be entered settling the rights between all the parties. (5) For general relief and process. The amendment alleged the following, in substance: Both defendants have waived objection to the jurisdiction of the court; the company, by filing a general demurrer and answer, and Morgan by filing a general demurrer. And further, plaintiff was. assignee of the defendant company of its contract with Morgan, “by which the sum of $5600.00 was to be paid by said Morgan to the said company, and represented and covenanted by said Morgan and by the said company to be without set-off or counter-charges; that Morgan accepted said assignment, without claim for any offset dr counter-charge, until the plaintiff had finished the work and payment on the contract had been made down to the sum of $1916.00; that, in order to avoid paying plaintiff, Morgan claimed that he had an offset or- charge against the Southern Seating and Cabinet Company;” that the basis of the plaintiff’s contract with defendant com-' pany was the amount to be owing by Morgan to that company at the conclusion of the work and at the time of the assignment aforesaid; that it is impossible for the plaintiff’s claim against defendant company to be settled without an accounting and a settlement of the account of the defendant company with the defendant Morgan; “and it is necessary for an accounting to be had between all of said parties.” Upon these allegations it was prayed that plaintiff have judgment against Morgan, that there be an accounting between all the parties, and that their rights be decreed. The defendants filed separate d&murrers, both of which complained among other things: (a) that no cause of action was set forth; (b) that there was an unauthorized joinder of parties and causes of action, rendering the petition multifarious; (c) that it appears upon the face of the petition that the court is without jurisdiction.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
