Opinion
33325.
DECIDED MARCH 2, 1951.
Certiorari; from Fulton Superior Court — Judge Pharr. September 12, 1950.
Charles W. Anderson, J. Milam Morris Jr., Scott Lay Jr., for plaintiff.
C. Donald Lowrie, for defendant.
1. The portion of the instrument sued on as to making a bond is ambiguous, and it is therefore a question for a jury to determine the meaning of the instrument in this respect.
2. The petition not showing that the assignor of the plaintiff was damaged by reason of the alleged breach of the instrument declared on, the petition was subject to the demurrer.
3. The judgment sustaining the demurrer is affirmed with direction as stated in the opinion.
DECIDED MARCH 2, 1951.
T. D. White sued H. R. Trippe Jr., in the Civil Court of Fulton County and alleged: "(2) Plaintiff was surety on a certain bond given to M. K. Melvin, conditioned upon the wrecking of buildings located at 449 Seminole Ave., N.E., Atlanta, Ga., by the defendant and the sale of the materials gained therefrom, and for the leaving of the said premises in a clean and neat manner, suitable for construction. A copy of said bond is hereto attached marked "Exhibit A", and made a part hereof.
"(3) Petitioner respectfully shows that defendant failed to perform in accordance with the terms of said bond in that he did not properly wreck the buildings on the aforesaid property and did not leave the premises in the condition required by said bond, and thereby breached said bond.
"(4) Plaintiff shows that defendant is indebted to him in the sum of $1,000.00 plus interest, by reason of the fact that plaintiff paid to M. K. Melvin that amount of money to satisfy said bond, which money was paid to M. K. Melvin because of the breach of said bond, and was paid on the 4th day of September, 1948."
A copy of the instrument referred to as a bond, and attached to the plaintiff's petition as Exhibit A, is as follows: "State of Georgia, County of Fulton. This agreement and indenture entered into between the parties hereto on this the 25th of May, in the year of our Lord Nineteen Hundred and Forty-Eight.
"Whereas M. K. Melvin, known as the party of the first part; and H. R. Trippe, known as the party of the second part agree and contract as follows:
"The party of the second part, for and in consideration of the buildings and materials located on property in the City of Atlanta, Ga. known as Number 449 Seminole Ave., N.E., and 448 Moreland Ave., N.E. said property being one continuous tract lying between Moreland Ave., and Seminole Ave., the said party of the second part agrees to clear the said property, removing the building and materials, and leaving said lots in a clean, neat, manner suitable for construction or otherwise: That said removal of buildings and equipment and materials will begin immediately and that the lots will be cleared off on or before July 1st, 1948.
"The said party of the first party hereby warrants that he owns this property and that he can and does give good title to the consideration herein, namely the materials located on the said property, to the party of the second part upon his complying with the terms of this contract.
"Further that the party of the second part, H. R. Trippe, principal, and T. D. White, security, hereby agree to make bond in the sum of $1000.00, One Thousand Dollars, said bond to be payable to the party of the first part in the event that he suffers damages for the failure of the party of the second part to comply with the provisions herein, or failure to complete by date agreed upon. This bond to be cancelled and satisfied upon completion of this contract.
"Witness our hand and seal; on this day above written.
H. R. TRIPPE (L. S.) T. D. WHITE (L. S.) M. K. Melvin "Signed, sealed, and witnessed on this the Ray Miller Witness C. R. Rauchenburg Witness"For value received, I hereby transfer the within contract to T. D. White, without recourse.
"This September 4th, 1948. /s/ M. K. Melvin."
The defendant filed a general demurrer to the petition, on the ground that it failed to set out a cause of action against him. The trial judge sustained the demurrer and dismissed the action. The plaintiff in a petition to the Superior Court of Fulton County for certiorari assigned error on that judgment. The petition for certiorari was overruled and dismissed by the superior court, and the plaintiff excepted.
The instrument sued on is a contract between Melvin, the owner of certain buildings and lots, and Trippe, who agreed to remove the buildings and material from the lots and to leave the lots clean and suitable for construction, and as a consideration for doing this work, Trippe was to have the wrecked buildings and material. The statement in the instrument, "That the party of the second part, H. R. Trippe, principal, and T. D. White, security, hereby agree to make bond in the sum of $1,000.00 . . said bond to be payable to the party of the first part in the event that he suffers damages for the failure of the party of the second part to comply with the provisions herein, or failure to complete by date agreed upon. This bond to be cancelled and satisfied upon completion of this contract," is ambiguous, and it is a question for a jury to determine whether the parties intended for this portion of the instrument to be the bond or suretyship contract referred to, or whether this was an agreement on the part of Trippe and White to execute a bond, that is, to execute another instrument as a bond.
The petition does not show that M. K. Melvin was damaged or sustained any loss by reason of the alleged breach of the instrument declared on, and consequently the petition was subject to the defendant's demurrer, even though the instrument should be construed as a bond or suretyship contract.
The judgment is affirmed, with direction that the judge of the superior court give direction to the Civil Court of Fulton County to allow the plaintiff to amend his petition, if he so desires; and if the petition is amended to meet the defendant's demurrer, that the case be tried on the theory as above indicated.
Judgment affirmed, with direction. Felton and Worrill, JJ., concur.