American Surety Co. v. Small Quarries Co. , 157 Ga. 33 ( 1923 )

Gilbert, J.

The question propounded by the Court of Appeals calls for the construction of a contract of suretyship. The Civil Code (1910), § 3540, declares: “The contract of suretyship is one of strict law, and his liability will not be extended by implication or interpretation.” The act of the General Assembly approved Aug. 19, 1916 (Ga. Laws 1916, p. 94), requires a county of this State, in making contracts for public works, to take., a bond insuring it and those doing work or furnishing skill, tools, machinery, or materials for the purpose of such contract against loss. The first section of the act provides, in so far as is material to the question before us, as follows: “No contract with . . a county . . for the doing of any public work shall be valid for any purpose, unless the contractor shall give bond payable to the . . body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill, and materials furnished by persons under, or for the purpose of, such contract, and for a compliance with the laws appertaining thereto.” In the bond actually given the words italicized above were omitted. Otherwise the bond was admittedly in substantial compliance with' and in the language of the above-mentioned act. Section 2 of the act, in so far as applicable, provides as follows: “If such bond . . be not taken in manner and form as herein required, the corporation or body for which work is done under the contract shall be liable to all persons furnishing labor, skill, tools, machinery, or materials to the contractor thereunder, for any loss resulting to them from such failure.” Section 4 of the act provides: “If no suit shall be brought by the obligee on said bond within ninety days after the completion of the contract and the acceptance of said public building or public work by the proper public authority, then the person doing work or furnishing skill, tools, machinery, or 'materials to the contractor for said public building or public work,” may bring suit on the bond in the manner specified therein.

The question propounded indicates that Small Quarries Company furnished material used by the contractor in doing the county’s public work under the contract, and was not paid therefor. The county did not bring suit on the bond within ninety days after the completion of the contract, and the Quarries Company filed suit against the Surety Company for the amount due them, basing their claim upon the aforementioned act of the General Assembly. The bond of the surety company did not provide in terms to pay any indemnity to the county “for the use of persons doing work or furnishing skill, tools, machinery, or materials under and for the purpose of the contract.” Counsel for the Quarries Company concede “that the Quarries Company has no right of action on this bond except such as is given by statute,” and the Surety Company contends that the bond was not a statutory bond based upon and in compliance with the act of 1916, but that it is restricted in its obligation to the saving of the county free from all costs and damages that may accrue. We think that the omission of the language italicized above from the face of the bond constituted a substantial variance from the “manner and form” required under the act of 1916. Construing the bond strictly, as we are compelled to do, under § 3540 of the Civil Code of this State, quoted above, we are driven to the conclusion that the bond is not a statutory bond in compliance with the act in question; and therefore the Quarries Company could not sue the surety company in their own name. Whether they should have brought the suit in the name of the county for the use of the Quarries Company, or whether they should have sued the county under section 2 of the act providing for a liability on the part of the county upon failure to take bond in the manner and form as required, is not now for decision.

All the Justices concur, except