Town of Grantville v. Fidelity & Deposit Co. of Md.

• Decision Date: 20 November 1912
• Citation: 76 S.E. 575,139 Ga. 53
• Parties: TOWN OF GRANTVILLE v. FIDELITY & DEPOSIT CO. OF MARYLAND.
• Court: Georgia Supreme Court

76 S.E. 575

139 Ga. 53

TOWN OF GRANTVILLE v. FIDELITY & DEPOSIT CO. OF MARYLAND.

Supreme Court of Georgia

November 20, 1912

Syllabus by the Court.

The town of Grantville entered into a written contract with John F. Grandy & Son for the construction of a school building. A bond was executed by Grandy & Son as principal, and the Fidelity & Deposit Company of Maryland as surety acknowledging themselves bound to pay the town of Grantville a stated sum. The bond recited the contract and declared that it, "together with all of its terms, covenants conditions, specifications, and stipulations, is incorporated herein and made to form a part hereof as fully and amply to all intents and purposes as if said contract was recited at length herein." The bond was conditioned for the faithful performance of the contract on the part of Grandy & Son, "according to the terms, covenants, and conditions thereof (except as hereinafter provided)." It also recited a number of things which were declared to be "conditions precedent to the right of the owner to recover hereunder." Among them were: (1) The surety shall not be liable under this bond to any one except the owner; but it is agreed that the owner, in estimating his damage, may include the claims of mechanics and materialmen arising out of the performance of the contract, and paid by him, only when the same, by the statutes of the state where the contract is to be performed, are valid liens against said property." (2) "That any suits at law or proceedings in equity, brought on this bond to recover any claim hereunder, must be instituted within six months after the first breach of said contract." By the terms of the contract, which by reference was made a part of the bond Grandy & Son obligated themselves to the town of Grantville among other things, to furnish all material and to construct the building at a stipulated price, payable in installments and, at the time of the maturity of the last installment, "to make sworn affidavit that the agreed price or reasonable value of all work done or material furnished by persons other than themselves had been paid for by them," and if at such time there should be any material or labor not paid for, then Grandy & Son were "to produce waivers of such claims, signed by the persons to whom" due. The contract further provided: "When this affidavit, duly sworn to and subscribed, is produced and left with said architects, said...