Opinion
45274.
ARGUED APRIL 6, 1970.
DECIDED JULY 10, 1970. REHEARING DENIED JULY 29, 1970.
Action on bond. Richmond Superior Court. Before Judge Fleming.
Cumming, Nixon, Eve, Waller Capers, Samuel C. Waller, for appellant.
Sanders, Hester, Holley, Ashmore Boozer, Richard A. Slaby, for appellees.
The granting of the plaintiff's motion for summary judgment was not error.
ARGUED APRIL 6, 1970 — DECIDED JULY 10, 1970 — REHEARING DENIED JULY 29, 1970.
Aluminum Company of America filed its complaint against Aetna Casualty Surety Company to recover a sum allegedly due it under a certain labor and material payment bond as to which the defendant was the surety.
The plaintiff alleged that George A. Fuller Company, Inc. had contracted with the Richmond County Hospital Authority on July 14, 1967, to construct the University Hospital in Augusta, Georgia; that defendant as surety executed a certain labor and material payment bond in the amount of $15,875,000, the George A. Fuller Company, Inc., being the principal thereon; that plaintiff supplied material in the form of aluminum panels to Southeastern Enameling Corporation, a subcontractor of General Bronze Corporation which in turn was a subcontractor under George A. Fuller Company, Inc.; that Southeastern Enameling Corporation was indebted to it in the amount of $43,539.71 which Southeastern had refused to pay; that plaintiff was entitled to the protection afforded by bond, having given the necessary notice to the "contractor principal and owner" within 90 days after the plaintiff furnished the last of the materials for which the claim for payment was being made.
The defendant in its answer alleged that the complaint failed to state a claim upon which relief could be granted. As a second defense the defendant admitted that General Bronze Corporation was a subcontractor of defendant and that Southeastern Enameling Corporation was a subcontractor of General Bronze Corporation, but was without knowledge or information sufficient to form a belief as to the furnishing of material by the plaintiff to Southeastern Enameling Corporation, how or when it was furnished or the amount which might be owing by Southeastern Enameling Corporation to the plaintiff.
The defendant filed a third-party complaint against General Bronze Corporation, alleging that if it were liable under said bond for the payment of plaintiff's claim, then the defendant would be entitled to recover the amount of such claim from the third-party defendant.
The plaintiff then filed a motion for summary judgment.
A hearing was held on the plaintiff's motion for summary judgment at which the only evidence submitted was an affidavit of a district credit manager of the plaintiff. At the conclusion of the hearing on the motion, the court granted the motion and entered judgment for the plaintiff.
Thereafter defendant filed its notice of appeal and the case is here for review.
1. The defendant contends that the affidavit of W. R. Dague, the plaintiff's credit manager, was not sufficient to carry the burden of proving that the material was used in the "prosecution of the work." The affidavit stated in part that: the plaintiff furnished the materials that "were used" in the construction of the hospital; that the direct contract of Aluminum Company of America with the sub contractor of George A. Fuller Company, Inc. was for material which was used and reasonably required for use in the performance and fulfillment of the said contract between George A. Fuller Company, Inc., and Richmond County Hospital Authority.
The defendant argues that the credit manager should not be allowed to testify that the materials were actually used in the construction of the hospital because that fact would be outside his sphere of operations. With this contention we cannot agree. While it is true that a mere conclusion is not admissible, the affidavit states as a matter of fact that the materials were used in the construction. The affidavit further states that such fact was within his personal knowledge and that he was competent to testify as to the matters stated. The affidavit was sufficient to establish that the materials were used in the prosecution of the construction of the hospital. Holland v. Sanfax Corp., 106 Ga. App. 1 ( 126 S.E.2d 442); Ingalls Iron Works Co. v. Standard Acc. Ins. Co., 107 Ga. App. 454 ( 130 S.E.2d 606).
2. The appellant argues that the action should have joined the principal as a party to the claim.
The bond itself provided: "for the payment whereof principal and surety bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents." The rule often stated is that where liability under a contract or note is joint and several the plaintiff may sue the obligors jointly or severally, or sue any one of the signers alone. On such an obligation he may sue the principal and the surety jointly, or at his option he may sue either the principal or the surety alone. Bank of Madison v. Bell, 30 Ga. App. 458 (3) ( 118 S.E. 439); Hicks v. Bank of Wrightsville, 57 Ga. App. 233, 234 ( 194 S.E. 892); Swint v. Fountain, 106 Ga. App. 509 ( 127 S.E.2d 381), and cases cited.
Although the 1956 amendment (Ga. L. 1956, pp. 340, 343) to Code § 23-1708, omits the language that the person doing work or furnishing skill, tools, machinery or materials to the contractor "shall have a right of action against said contractor and the surety on said bond, or against either of them," we find no legislative intention to prohibit a bond of this type providing for joint and several liability. There are many cases with regard to sheriff's bonds holding that where the liability is joint and several the surety may be sued without joining the sheriff. Cone v. American Surety Co., 29 Ga. App. 676, 679 ( 116 S.E. 648); National Surety Corp. v. Boney, 215 Ga. 271, 273 ( 110 S.E.2d 406).
Under the terms of the bond the plaintiff was not precluded from seeking relief against the surety alone.
Judgment affirmed. Bell, C. J., and Whitman, J., concur.