The appellant contractor brought this action against the appellee surety of its subcontractor to recover attorney's fees and expenses incurred in successfully defending against a previous action by the surety, as assignee of the subcontractor with respect to all sums due or to become due under the contract, including the assignor's remedies. See National Surety Corp. v. Algernon Blair, Inc., 114 Ga. App. 30 (150 SE2d 256)
; Algernon Blair, Inc. v. National Surety Corp., 222 Ga. 672 (151 SE2d 724)
; National Surety Corp. v. Algernon Blair, Inc., 114 Ga. App. 684 (152 SE2d 432)
. The contract, which was incorporated by reference in the payment and performance bonds, contained the following provision: "Any fees or expenses incurred by the contractor on account of default by the subcontractor or on account of claims against the contractor or subcontractor by third parties arising out of matters covered in this subcontract shall be chargeable to the subcontractor, who agrees to pay such reasonable fees and expenses, including reasonable attorneys fees." Both parties moved for a summary judgment and the contractor appeals from the judgment of the court granting summary judgment in favor of the surety.
There appearing no default by the subcontractor, the surety's liability for the fees and expenses sued for must arise, if at all, under the contractual provision, ". . . on account of claims against the contractor or subcontractor by third parties arising out of matters covered in this Subcontract. . ." (Emphasis supplied.)
Here, the surety, although not originally a party to the contract, became such in effect when it assumed the status of assignee of one of the parties to the contract for not only all sums due or to become due under the contract, but also for said party's remedies in connection therewith. In the absence of the assignment the subcontractor would not have been liable for these fees and expenses for having itself brought such an action against the contractor. The surety, merely representing and exercising the subcontractor's right to such a remedy, would likewise not incur liability for these fees and expenses, in the absence of bad faith in bringing the action, which is not claimed.
The court did not err in its judgment granting summary judgment in favor of the defendant surety.