Stein Steel & Supply Co. v. Goode Const. Co., 33514
| Decision Date | 04 May 1951 |
| Docket Number | No. 1,No. 33514,33514,1 |
| Citation | 83 Ga.App. 821,65 S.E.2d 183 |
| Court | Georgia Court of Appeals |
| Parties | STEIN STEEL & SUPPLY CO., Inc. v. GOODE CONST. CO |
Syllabus by the Court.
As the petition failed to show that defendant contractor was a party to the contract between plaintiff and the subcontractor, and failed to show that plaintiff was a third party beneficiary to a contract between defendant and the subcontractor, the court did not err in sustaining the general demurrer.
Stein Steel & Supply Company, Inc., sued Goode Construction Company upon an alleged implied contract and alleged in its amended petition: that defendant contracted for and actually did the construction of an apartment building for Sylvan Circle Apartments, Inc.; that defendant subcontracted with Earthmovers, Inc., whereby the latter agreed to install in said apartment building all plumbing necessary to be used therein; that Earthmovers, Inc., contracted with plaintiff to furnish plumbing supplies and materal necessary to install said plumbing, and petitioner furnished same; that Earthmovers, Inc., was unable to complete its contract with defendant, whereupon, defendant undertook to complete and install the plumbing on its own authority and initiative and, in some manner unknown to plaintiff, disengaged Earthmovers, Inc.; that at such time Earthmovers, Inc., was insolvent and utterly unable to complete the work which it had contracted to do, which fact was then and there well known to defendant; that when defendant disengaged its subcontractor and assumed the completion of the work contracted to be done by said subcontractor, it had full knowledge that plaintiff had delivered to Earthmovers, Inc., on the precise job, and for use in connection with the construction referred to above, the goods and materials described in Exhibit A, attached to the petition and that Earthmovers, Inc., had not paid plaintiff for such material; that at the time defendant assumed the completion of the work contracted to be done by Earthmovers, Inc., much of the material described in Exhibit A had been installed and some of it was in the process of being installed; that plaintiff is not able to set forth the precise items that had been installed, nor that which remained uncrated, such being peculiarly within the knowledge of defendant; that defendant appropriated all of said material to its own use and enrichment and used same to complete the construction mentioned above; that plaintiff is entitled to recover judgment against the defendant on its implied promise to pay for the materials referred to. Exhibit A was copies of the invoices containing the items of materials sold to Earthmovers, Inc. Defendant renewed its general demurrer and demurred specially to the amended petition. The court sustained the demurrers and dismissed the action and plaintiff excepted.
Harris, Henson, Spence & Gower, Atlanta, for plaintiff in error.
James A. Branch, Thomas B. Branch,...
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