(Syllabus by the Court.)
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by the George W. Muller Bank Fixture Company against the Southern Seating & Cabinet Company and another. Demurrer to petition sustained, and action dismissed, and plaintiff brings error. Affirmed.
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 & 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 3 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 countercharge: Now, therefore, this agreement witnesseth that the said party of the second part, in consideration of the sum of $5,600 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 be 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 $6,512, 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 said E. Morgan to the first party, payments to be made as provided for in part 1 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 $600 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 materials furnished by the first party on said job to any other person whatsoever; and to indemnify and hold harm-loss 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. The first party, in consideration of the premises, does hereby assign, transfer, and set over unto the second party all of the moneys due 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 to be collectedby 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, taking place of a contractor for the completion of the same, and to pay to the said first party the said excess over $5,600, 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 in addition to the said excess over $5,600 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 nssigned and set over unto the George W. Muller Bank Fixture Company, of Fulton county, Ga., all sums that are due or may hereafter become due to' us by E. Morgan, of Savannah, Ga., 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...
