Syllabus by the Court.
A suit
in equity, based on separate and distinct claims against
different persons, where there is no common right to be
established, will be dismissed on demurrer on the ground of
multifariousness.
Where a
petition is dismissed for such cause, the court will not rule
upon the merits of the several claims set forth in the
petition.
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.
Where a
suit is dismissed on demurrer for multifariousness, the court
will not rule upon the merits of the several claims set forth
in the petition.
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 harmless 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 collected
by 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 assigned and
set over unto the George W. Muller Bank Fixture Company, of
Fulton county, Ga., all sums that are due
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