American Sur. Co. of New York v. De Wald

• Decision Date: 10 July 1923
• Docket Number: 14586.
• Citation: 118 S.E. 703,30 Ga.App. 606
• Parties: AMERICAN SURETY CO. OF NEW YORK v. DE WALD.
• Court: Georgia Court of Appeals

118 S.E. 703

30 Ga.App. 606

AMERICAN SURETY CO. OF NEW YORK v. DE WALD.

No. 14586.

Court of Appeals of Georgia, First Division

July 10, 1923

Syllabus by the Court.

The court properly overruled the general and special demurrers interposed to the petition.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Mrs. N. J. De Wald, for use, etc., against the American Surety Company of New York. Judgment for plaintiff on demurrer, and defendant brings error. Affirmed.

Stephens Barrow & Heyward, of Savannah, for plaintiff in error.

H. W Johnson and Jacob Gazan, both of Savannah, for defendant in error.

BROYLES C.J. (after stating the facts as above).

The main question raised by the demurrers, and the only one which we deem it necessary to discuss, is whether or not this suit can be maintained in the name of Mrs. De Wald for the use of the materialmen? We think it can. In some states an action upon a contract may be brought directly by the beneficiary in his own name, in order to avoid circuity of action. See 27 Cyc. 314, and cases cited in footnote. But the rule is different in Georgia. Our statute upon this subject is as follows:

"As a general rule, the action on a contract, whether express or implied, or whether by parol or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent." Civil Code 1910, § 5516.

And in the case of North British & Mercantile Ins. Co. v. Speer 7 Ga.App. 330, 66 S.E. 815, it was held:

"When A. makes a contract with B. for the benefit of C or when C. is equitably or justly entitled to claim the benefit of a contract made by A. with B., C.'s right is to sue in the name of A., as nominal plaintiff suing for the use of C. In such cases C. has the right to use A.'s name, even without the latter's consent. Fain v. Garthright, 5 Ga. 6; Calhoun v. Tullass, 35 Ga. 119 (2), 124; Kennedy v. Gelders, ante [7 Ga.App.] 241. * * * Many states allow such actions to be brought directly; Georgia does not. Empire State Insurance Co. v. Collins, 54 Ga. 376."

See, also, Hawkins v. Central Railway Co., 119 Ga. 159 (6), 46 S.E. 82.

The only obligee named in the bond in the present case is Mrs. De Wald, and the Barfield-Chapman Company, for whose use the suit is brought, although not named in the bond, is clearly a beneficiary thereunder. This...