Opinion
39042, 39074.
DECIDED NOVEMBER 29, 1961.
Action on bond, etc. Chatham Superior Court. Before Judge McWhorter.
Alton D. Kitchings, for plaintiff in error.
Corish, Alexander Smith, Malberry Smith, Jr., contra.
Where the petition brought against the surety shows a variance between the date of the contract of the principal in the surety's bond and the date of the contract of the principal alleged in the petition, and further shows a dissimilarity between the bond's description of the work undertaken by the principal and that of the principal alleged in the petition, no cause of action was stated.
DECIDED NOVEMBER 29, 1961.
The Mayor Aldermen of the City of Savannah brought this action against the Glens Falls Insurance Co. on a performance bond issued by the defendant in favor of the plaintiffs, which was alleged to cover a contract between Chippewa Terrace, Inc. and the plaintiffs.
Defendant filed general and special demurrers to the original petition. Thereafter the defendant filed renewed and additional demurrers to the petition as twice amended. The trial court overruled the demurrers on each and every ground.
The plaintiffs made a motion for summary judgment on the issue of liability alone. Six affidavits were annexed to the motion. The defendant filed a motion for summary judgment assigning eight reasons why there was no breach of the bond sued on for which the defendant could be held liable.
After a hearing, the trial court in a written opinion found on the evidence that the surety did not give the bond as a general performance bond and that the condition of the bond was never broken by the principal's not paying for materials furnished. The court granted the defendant's motion for summary judgment.
The main bill of exceptions brought by the plaintiffs assigns as error the overruling of the plaintiffs' motion for summary judgment and the granting of the defendant's motion for summary judgment.
The cross-bill of exceptions assigns error on the trial court's overruling of all of the defendant's demurrers to the petition and the petition as amended by the order dated January 12, 1959, and further assigns error and excepts to the order and judgment of the court dated July 14, 1959, overruling all of the defendant's demurrers as renewed and as supplemented by additional demurrers.
The defendant surety's bill of exceptions assigns error on the overruling of the defendant's general and special demurrers.
The general demurrer is based on the contention that the petition of the plaintiff shows that there is a fatal variance between the purported contract bond of the defendant, copy of which is attached to the petition, and the alleged contract of its principal, a copy of which is also attached to the petition. The defendant suggests that this fatal variance exists by reason of the fact that the purported bond of the defendant was signed, sealed, and dated August 27, 1956, and secures the performance by Chippewa Terrace, Inc. of a certain written contract dated August 27, 1956, for furnishing materials in connection with the renovation of a sewer system in the Chippewa Terrace Subdivision, whereas the contract attached to the petition and entered into by Chippewa Terrace, Inc. was dated August 31, 1956, and obligated that corporation to renovate the sewer system in the subdivision and also in the Chippewa Terrace Annex Subdivision.
Accordingly, it is urged, the petition of the plaintiffs fails to show any breach by the defendant of any duty or obligation owing by it to the plaintiffs under the provisions of the bond attached to and made a part of the petition.
The petition alleges that the defendant surety's principal, Chippewa Terrace, Inc., on August 31, 1956, entered into a contract with the plaintiffs, that the defendant's principal failed, and after demand for performance continues to fail, to perform its obligation under the contract by not renovating the sewer system; and that defendant's principal breached the contract by failing to have the renovated system completed for acceptance and connected with the plaintiffs' sewer system, and by failing to accord the plaintiffs their rights to receive payment of the water rentals and sewer charges from a designated date.
The contract of the defendant surety, attached to the petition, names Chippewa Terrace, Inc. as the principal, and is dated August 27, 1956. It specifically recites that it is signed, sealed, and dated the 27th day of August, 1956.
Quoting from the contract bond, insofar as it is relevant here, it states that: "Whereas, Principal and Obligee have entered into a certain written contract (hereinafter called the contract), dated 8/27, 1956 for furnishing materials in connection with renovation of present sewer system in Chippewa Terrace Sub-division, Chatham County, Georgia a copy of which is or may be attached hereto, and is hereby referred to and made a part hereof.
"Now, Therefore, the condition of this obligation is such that if Principal shall well and truly perform the contract and make payment to all persons who have furnished Principal labor or material in the prosecution of the work provided for in the contract, then this obligation to be void, otherwise to remain in full force and effect; provided, however, this bond is executed by the Surety, upon the following express conditions, which shall be precedent to the right of recovery hereunder. . ." (Emphasis added.)
Construing the petition most strongly against the plaintiffs, as it must be upon demurrer, it charges default of the defendant's principal in the performance of a contract dated August 31, 1956, requiring the principal, inter alia, to renovate a sewer system in the Chippewa Terrace Subdivision, while the contract of the defendant surety as annexed to the petition by its terms makes the surety liable upon a contract between the principal and the plaintiffs dated August 27, 1956, for furnishing materials in connection with renovation of present sewer system in Chippewa Terrace Subdivision.
It is thus quite apparent that there is a variance in the date of the contract identified in the surety's bond and the date of the agreement alleged in the petition as covered by the bond.
It is equally clear that there is a dissimilarity between the bond's description of the work to be performed by the principal and the undertaking of the principal as alleged in the petition.
"The contract of suretyship is one of strict law, and the surety's liability will not be extended by implication or interpretation." Code § 103-103. The undertaking of a surety being one stricti juris, he cannot either at law or in equity be bound further or otherwise than he is by the very terms of his contract. Bethune v. Dozier, 10 Ga. 235. "The date of a contract may or may not be material. If it is a written contract and is described as having been made on a certain date, the allegation as to the date, if specifically stated, becomes a part of the description of the contract to such an extent that the declaration can not be supported by proof of a written contract dated on some other day." Williams Meadows v. Johnson, 8 Ga. App. 651, 652 ( 70 S.E. 89). See also Mead v. McGee, 215 Ga. 574 ( 111 S.E.2d 234); Tate v. National Surety Corp., 58 Ga. App. 874 ( 200 S.E. 314); Glens Falls Indem Co. v. Southeastern Const. Co., 207 Ga. 488, 490 ( 62 S.E.2d 149).
Under the allegations of the petition, the surety did not undertake any liability for failure of performance on the contract pleaded. The surety obligated itself for the performance of a contract for furnishing materials under a contract dated August 27, 1956. Accordingly, the surety is not liable for the alleged breach of a contract dated August 31, 1956, to renovate a sewer system.
While there is a general allegation in the petition to the effect that the bond was given to secure the performance of the contract attached to the plaintiff's petition, this general charge is refuted by the express language contained in the respective instruments. Construing the petition most strongly against the pleader, the express allegations must prevail.
As the surety's liability cannot be extended by implication or interpretation, the petition did not state a cause of action under the bond sued on. The trial judge erred in overruling the general demurrer to the petition. It follows that the subsequent proceedings were nugatory, and it is unnecessary to rule upon the main bill of exceptions.
Main bill of exceptions dismissed. Judgment on the cross-bill reversed. Felton, C. J., and Hall, J., concur.