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Complaint; from Fulton Civil Court-- Judge Arnold. February 1, 1951.
As the petition failed to show that defendant contractor was a party to the contract between defendant and the subcontractor, the court 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 material 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.
Code 3-108 provides that, as a general rule, an action on a contract, whether express or implied, shall be brought against the party who made it in person or by agent. In the instant case the defendant did not contract "personally" with plaintiff and, according to plaintiff's allegations, Earthmovers Inc. was a subcontractor and not an agent of defendant. The petition shows that the sale of the material by plaintiff to Earthmovers Inc. was a completed sale, and by virtue of such plaintiff lost all title to, control of and interest in the material sold, and thereby became merely a general creditor of Earthmovers Inc. Before a person can sue another on a contract, it must appear that there existed privity of contract between the parties, and in the instant case that necessary element of privity did not exist between plaintiff and defendant. See, in this connection: Meager v. Linder Lumber Co., 1 Ga. App. 426 (57 S. E. 1004); Dickson v. Matthews, 10 Ga. App. 542 (73 S. E. 705); Wometco Theaters Inc. v. United Artists Corp., 53 Ga. App. 509, 511 (1) (186 S. E. 572); McGinnis v. Milhollin, 64 Ga. App. 462 (13 S. E. 2d, 591). Therefore, the petition does not state a cause of action against defendant. Contrary to plaintiff in error's contention, no third party beneficiary contract existed in the instant case. No duty arose on the part of defendant to pay plaintiff for the materials furnished Earthmovers Inc., in the absence of an agreement between defendant and Earthmovers Inc., that defendant would assume generally the debts of Earthmovers Inc., or specifically the debt Earthmovers Inc. owed plaintiff. The plaintiff does not allege an express contract or agreement to such effect, nor does it allege facts sufficient to give rise to an implied contract to such effect under the circumstances of this case. The case of Colt Company v. Hiland, 35 Ga. App. 550 (134 S. E. 142), cited by plaintiff in error, is not analogous to the instant case. There the court held that there was sufficient evidence to show that an actual party to the contract was acting as agent of the defendant.
It is not necessary to consider the exceptions to the sustaining of the special demurrers.
The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.
James A. Branch, Thomas B. Branch Jr., contra.
Harris, Henson, Spence & Gower, for plaintiff in error.
DECIDED MAY 4, 1951.
Saturday May 23 05:37 EDT

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