Opinion
40583.
DECIDED MARCH 17, 1964. REHEARING DENIED MARCH 31, 1964.
Complaint. Hall Superior Court. Before Judge Smith.
R. F. Duncan, for plaintiff in error.
Herbert Edmondson, contra.
A materialman cannot recover from the general contractor on a public works contract not bonded as required by Code Ann. §§ 23-1705 and 23-1706 for materials furnished to an insolvent subcontractor and used on the job.
DECIDED MARCH 17, 1964 — REHEARING DENIED MARCH 31, 1964.
Electrical Equipment Company filed suit in Hall Superior Court against Daniel for $4,991.80, alleging that the defendant entered into a contract with the Board of Education of Forsyth County, Georgia, to furnish all labor and material for the construction of a school gymnatorium in Cumming, Ga.; that defendant entered into a subcontract with Dalco, Inc., whereby said subcontractor was to furnish and install certain electrical equipment in said gymnatorium; that thereafter plaintiff sold to said subcontractor certain electrical equipment which was installed in said gymnatorium for the stated amount of $4,991.80; that said Dalco, Inc. is insolvent and fails and refuses to pay plaintiff for said equipment; that the defendant upon entering into the contract with Forsyth County School District failed to execute and file the performance and payment bonds as required by Code Ann. §§ 23-1705 and 23-1706, resulting in the damage and injury to the plaintiff in the amount stated.
Upon the sustaining of the defendant's general demurrer to the petition by the trial court, the plaintiff excepted and assigns error on said ruling.
Code Ann. § 23-1705 requires contractors entering into contracts with a "public board or body" of a county to give a performance bond and a payment bond "for the use and protection of all subcontractors and all persons supplying labor, materials, machinery and equipment in the prosecution of the work provided for in said contract." When such required bonds are given by the general contractor (the premium cost of said bonds being passed on to said public body or agency) Code Ann. § 23-1708 provides the manner in which persons entitled to such protection may proceed.
While Code Ann. § 23-1705 conditions the validity of the contract upon the giving of the required bonds, Code Ann. § 23-1706 clearly provides liability for loss resulting from such failure of the public body to take a payment bond by providing: "If such payment bond, together with affidavit when necessary, shall not be taken in manner and form as herein required, the corporation or body for which work is done under the contract, shall be liable to all subcontractors and to all persons furnishing labor, skill, tools, machinery or materials to the contractor or subcontractor thereunder, for any loss resulting to them from such failure."
As aptly stated by the trial court in its order sustaining the general demurrer, "if the public body chooses to reduce its cost by omitting bond, its liability to a materialman under the statute seems clear." The statutes clearly place the burden upon the contracting public body to see that such bonds are given, or else suffer the penalty of liability for "loss resulting . . . from such failure."
However, as pointed out by this court in Hackman v. Fulton County, 77 Ga. App. 410 ( 48 S.E.2d 706), before a person can recover from the county or public body for labor or materials furnished to such contractor or subcontractor doing work for such agency, he must show that the loss sued for resulted from the failure of the county or body to take from the contractor the bond required by law. In that case, a petition merely alleging a demand upon and refusal to pay by the contractor was insufficient to show loss resulting from such failure to take the required payment bond and was therefore dismissed on general demurrer.
The trial court did not err in sustaining the general demurrer of the defendant in this case, the county school district having failed to require the defendant to give a payment bond as required by statute.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.