Metric Steel Co. v. BLI Const. Co., Inc., 55826
| Decision Date | 05 October 1978 |
| Docket Number | No. 55826,55826 |
| Citation | 249 S.E.2d 121,147 Ga.App. 380 |
| Court | Georgia Court of Appeals |
| Parties | METRIC STEEL COMPANY v. BLI CONSTRUCTION COMPANY, INC., et al. |
Phillips, Hart & Mozley, Robert B. Wedge, Atlanta, for appellant.
Harland, Cashin, Chambers, Davis & Doster, Joe G. Davis, Jr., Gambrell, Russell & Forbes, David A. Handley, James C. Huckaby, Jr., Kilpatrick, Cody, Rogers, McClatchey & Regenstein, James M. Koelemay, Jr., Susan A. Cahoon, Atlanta, Hallowes & Hodges, Borden R. Hallowes, Fort Lauderdale, Fla., for appellees.
BLI Construction Company, Inc. contracted with the DeKalb County Board of Education to construct two high schools in that county. Metric Steel Company was one of the subcontractors to supply the structural steel on the high school projects. It, in turn, contracted with Dixie Metal Products, Inc. to furnish certain structural steel to be used on the job. Dixie Metal Products, Inc. shipped certain structural steel containing "shop-splices." Whereupon, the architect and engineer on said construction projects refused to approve the use of shop-splices contending that no such shop-splices were permitted under the drawings and specifications for said construction projects. This created certain delays in the shipping and resulted in the termination by the general contractor of Metric Steel Company's contract on these construction projects.
Whereupon, Metric Steel Company as plaintiff sued BLI Construction Company, Inc., the general contractor and Home Insurance Company, as surety having furnished a performance and payment bond on the projects with BLI Construction Company, Inc. as principal. It also sought, in a separate count, judgment against Dixie Metal Products, Inc. in the event the court determined that BLI Construction Company, Inc. was justified in terminating plaintiff's contract to furnish the steel for said school projects.
Defendant BLI Construction Company, Inc. answered with a number of affirmative defenses, admitting jurisdiction, but generally denying plaintiff's claim. It also filed a counterclaim contending plaintiff had breached the contract in certain particulars and sought damages which it contends will be in excess of those claimed by the plaintiff.
Defendant Dixie Metal Products, Inc. answered denying jurisdiction and venue of the court since it was a nonresident corporation and otherwise denied the claim against it.
Thereafter, plaintiff rewrote its complaint averring breach of contract and tortious conduct by the various defendants, naming in addition thereto, the architectural firm and the project engineer as additional defendants.
Dixie Metal Products, Inc., the supplier of the structural steel, filed its counterclaim, including as a defendant in counterclaim the surety furnishing a bond for plaintiff Metric Steel Company, as principal, by reason of Metric Steel Company's failure and refusal to pay Dixie Metal Products, Inc. for furnishing and supplying said steel products.
Defendants BLI, its surety, the architect and the engineer, all made motions to dismiss plaintiff's complaint for failure to state a claim upon which relief could be granted and also due to plaintiff's failure to obtain a certificate of authority to do business in Georgia prior to commencing this action. The case was set down by special order for trial and prior thereto at a pre-trial hearing certain preliminary motions were heard under Code Ann. § 81A-112(d) (). During argument, counsel for plaintiff admitted it did not have a certificate of authority as a corporation to transact business in this state, although contending its activities were merely as a supplier of steel not requiring any local performance and this was a transaction in interstate commerce; hence it was not required to obtain a certificate of authority under Code Ann. § 22-1401 (Ga.L.1968, pp. 565, 707; 1969, pp. 152, 201). The trial court granted the motions to dismiss plaintiff's complaint without prejudice for failure "to obtain a...
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...§ 48-13-37; compare with National Heritage Corp. v. Mount Olive, etc., Gardens, 244 Ga. 240, 260 S.E.2d 1; Metric Steel Co. v. BLI Constr. Co., 147 Ga.App. 380, 249 S.E.2d 121 both of which were cited by the Supreme Court in Gorrell, supra, 248 Ga. at 802, 286 S.E.2d 13, as examples of case......
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...to non-residents falling in different categories, such as foreign corporations [Code Ann. § 22-1421(b); Metric Steel Co. v. BLI Construction Co., 147 Ga.App. 380, 249 S.E.2d 121 (1978); National Heritage Corp. v. Mount Olive Memorial Gardens, Inc., 244 Ga. 240, 260 S.E.2d 1 (1979) ], and re......
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Cosby v. A. M. Smyre Mfg. Co.
...by the defendants, hence "factual issues raised ... may be heard and determined without a jury," citing Metric Steel Co. v. BLI Construction Co., 147 Ga.App. 380, 382-383, 249 S.E.2d 121. It is thus apparent that the trial court's ruling here was considered under Code Ann. § 81A-112(d) (Ga.......
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