Renfroe v. Shuman

Lumpkin, Justice. Shuman brought an action in the city court of Savannah against Eenfroe, as principal, and the Southern Supply Company, a Florida corporation, as surety. At the appearance term, both defendants filed written demurrers to the plaintiff’s declaration. Two amendments to the declaration were allowed over objections made by the Supply Company, and Eenfroe demurred orally to the declaration and amendments as allowed, on the ground that they did not show that he and the Supply Company were joint promisors upon any promise or obligation by reason whereof the action could be maintained against Eenfroe in the city court of Savannah. The * reporter’s statement sets forth, in substance, the contents of the plaintiff’s declaration, the amendments thereto, the written demurrers filed by the defendants, and the objections to the amendments made by the Supply Company. An examination of the record thus exhibited will show that Eenfroe, who was conceded to be .a non-resident óf Chatham county, was indebted to the 158 plaintiff, Shuman, for materials furnished and work done under a written contract between Renfroe and Shuman; that after this contract had been entered into,the Southern Supply Company, a foreign corporation having an office in the city of Savannah, had, by its separate and independent written contract with Shuman, to which Renfroe was not a party, and by which he was in no way whatever bound, agreed to pay Shuman for the material and work mentioned in the contract he had originally made with Renfroe, “ as returned by the engineer in charge of the. work and O. II. by J. W. Renfroe.” We are at a loss to perceive upon what principle a joint action could be maintained in the court mentioned, against both defendants for the money due on these respective contracts. There was no privity whatever between the defendants with reference to their respective undertakings with the plaintiff, and, as alleged in the oral demurrer of Renfroe, they were not joint promisors upon any promise or obligation which would authorize the bringing of the action against Renfroe in the city court of Savannah. That court had no jurisdiction whatever over him ; and conceding its jurisdiction over the foreign corporation, Renfroe was in no way jointly bound with that corporation so as to authorize the plaintiff to join him with it in the action brought. We are also of the opinion that the demurrer of the Supply Company ought to have been sustained, even after the allowance of the amendments to the plaintiff’s declaration, because the written contract of the Supply Company in effect stipulated that it would be bound to pay Shuman for timber delivered and work done only as returned by the engineer in charge and “0. K.” by Renfroe- — meaning that the reports made by the engineer must be approved by Renfroe before the Supply Company would be liable — and the declaration fails to allege any such approval. It is true the first amendment 159 does aver that the amount sued for had been measured, approved and finally passed upon by the engineer of the railroad company at the time of the commencement of the plaintiff’s suit, where the contract between the parties required approval and measurement before payment; but this amendment fails to allege any approval by Renfroe, which, under the express terms of the Supply Company’s contract, was essential to the plaintiff’s right to receive payment, and therefore essential to be alleged. Judgment reversed.