Ludlam Construction Co. v. Cummings

Stephens, J.

1. A contract entered into between the owner of land and a construction company, by the terms of which the construction company agrees to erect upon- the land a structure in accordance with plans and specifications which “have been examined and approved by” named persons, who are described in the contract as the prospective tenants and purchasers of the improved property, shows no right, title, or interest whatsoever, either legal or equitable, of such prospective tenants and purchasers in the contract as against the construction company.

’ £. A plaintiff who has no legal or equitable right to maintain the suit can npt amend by striking his name therefrom as plaintiff and substituting therefor, as plaintiff suing for his use, the mame of another having the legal right to maintain-the suit.

3. In a suit by the prospective tenants and purchasers named in the contract against the construction company to recover under the contract, an amendment to the petition, striking the names of the plaintiffs and substituting therefor the name of the owner, suing for their use, was improperly allowed over objection. Civil Code (1910), § 5689.

Decided January 14, 1926.

Decided January 14, 1926.

T. 8. Hawes, Hartsfield & Conger, for plaintiff in error. Pottle & Hof may er, A. E. Thornton, contra.

4. The petition, before the allowance of the amendment, failed to set out a cause of action in the plaintiffs, and the court erred in not dismissing it on demurrer. Civil Code (1910), § 5516.

Judgment reversed.

Jenkins, P. J., and Bell, J., concur.