Lowndes Alliance Warehouse Co. v. Greene , 17 Ga. App. 542 ( 1916 )

Wade, J.

This was an action against the principals and the sureties on a bond given by building contractors, conditioned that they would faithfully perform the'stipulations of a certain building. contract. By referring to the contract itself, we find that it provides, among other things, that “the sum to be paid by the owner to the contractors for said work and materials shall be (7770.00) seven thousand, seven hundred and seventy dollars, . . . and that such sum shall be paid by the owner to the contractors in current funds, and only upon the certificate of the architect, as follows: Payment to be made by weekly installment as the work progresses, not to exceed 85%. The final payment shall be made within ten days after the completion of the work,” etc. The petition, as amended, discloses that the plaintiff's failed to comply with this part of the contract, since it appears therefrom that the owner made payments to the contractors without regard to the progress of the Work, and that the final payment, covering all of the $7770, the amount which the owner contracted to pay to the contractors, was made some time prior to the completion of the work. It also affirmatively appears, from the petition, that the owner allowed the contractors to complete their work, notwithstanding they had failed to comply with the terms and tenor of their contract, plans, and specifications. Held:

Decided January 28, 1916.

Action on bond; from city court of Yaldosta — Judge Cranford. January 18, 1915.

Whitaker & Dukes, for plaintiff:. O. M. Smith, Denmark & Griffin, for defendants.

1. The sureties were entitled, as a matter of law, to have the contract strictly adhered to by the plaintiffs, as the liability of a surety is stricti juris; and, since the petition as amended shows that the plaintiffs failed to make payments to the contractors in conformity with the terms of the contract, which failure tended to increase the risk of the sureties on the bond, the sureties are discharged from all liability thereon. Blackburn v. Morel, 13 Ga. App. 516 (79 S. E. 492).

2. Eor the reasons stated above, the court did not err in sustaining the demurrer and dismissing the petition. Judgment affirmed.