Beck & Gregg Hardware Co. v. Southern Surety Co. , 1931 Ga. App. LEXIS 781 ( 1931 )

Jenkins, P. J.

It is a general rule as to contracts of all kinds that they are to be governed as to their nature, validity, and interpretation by the law of the place where they were made, unless the contracting parties clearly appear to have had some other law in view. Tillman v. Gibson, 44 Ga. App. 440 (161 S. E. 630) ; 12 C. J. 449, § 30. But the character and extent of the remedy, and the mode of procedure, including questions relating to tlie parties, and questions as to the capacity of a party to sue or be sued and as to who may maintain the action, and in whose name the action shall be brought, are determined by the law of the forum in which the action is instituted. Lay v. N., C. & St. L. Ry. Co., 131 Ga. 345 (3) (62 S. E. 189) ; Selma R. Co. v. Lacey, 49 Ga. 107; Joice v. Scales, 18 Ga. 725; Massachusetts Benefit Life Asso. v. Robinson, 104 Ga. 256, 286 (30 S. E. 918, 42 L. R. A. 261) ; Cox v. Adams, 2 Ga. 158, 161; 49 C. J. 17, § 14. Accordingly, where, as in the instant ease, suit is brought in Georgia upon a bond executed in the State of Florida in pursuance of a contract of assignment made in Florida, questions as to who may maintain the action brought in this State, and in whose name such action shall be brought, are to be determined in accordance with the laws of Georgia.

2. In this State, “as a general rule, the action on a contract; whether express or implied, or whether by parol or under seal, or of .record, must be brought in the name of the party in whom the legal interest in such contract is vested, and against the party who made it in person or by agent.” Civil Code (1910), § 5516; Kohn v. Colonial Hill Co., 38 Ga. App. 286 (144 S. E. 33) ; American Surety Company of New York v. DeWald, 30 Ga. App. 606 (118 S. E. 703). In the instant case the suit as instituted at law on a bond executed in the State of Florida by the assignees under an assignment for the benefit of creditors in accordance with the laws of that State, which bond was made payable to the Governor of the State of Florida and was conditioned upon the principal obligors “well and truly and faithfully” discharging the duties devolved upon them as such assignees, and contained no recital that it was entered into for the benefit of the creditors of the assignor, was subject to the demurrer interposed upon the ground that the plaintiff creditor could not maintain the action in its own name. The plaintiff having acquiesced in the ruling of the court below holding such ground of demurrer good (McConnell v. Frank F. Block Co., 26 Ga. App. 550 (106 S. E. 617), and having sought to amend the petition to meet such adverse ruling, in accordance with the permission granted in the order of the court, by setting forth a Florida statute which, contrary to the Georgia law, permits suits in any civil action at law to be maintained by the real party at interest, and the amendment failing, under the principle stated in the first division of the syllabus, to meet the ground of objection urged, the court did not err, upon the renewal of such ground of demurrer, in dismissing the petition. It is unnecessary, in this view of the case, to determine whether the amendment to the petition opened up the case for the renewal of the grounds of the original demurrer which had been overruled in the order sustaining the ground herein referred to, with leave to the plaintiff to amend. Whether the plaintiff might have been permitted to amend the suit by inserting the name of the obligee in the bond as suing for the use of the plaintiff it is unnecessary to determine, since the plaintiff elected to amend by standing on the Florida statute set forth; and since the ruling of this court is that the judgment of the court below in dismissing the petition be affirmed, no direction can be given that a further opportunity to amend be afforded the plaintiff.

Decided December 19, 1931. Rehearing denied January 18, 1932. Sam E. Murrell, E. B. Murrell, II. E. Edwards, for plaintiff. Bryan, Middlebroohs & Carter, for defendant.

■ludijmenl affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.

Stephens and Bell, JJ., concur.