White v. Trippe

Sutton, C. J. (After stating the foregoing facts.) The instrument sued on is a contract between Melvin, the owner of certain buildings and lots, and Trippe, who agreed to remove the buildings and material from the lots and to leave the lots clean and suitable for construction, and as a consideration for doing this work, Trippe was to have the wrecked buildings and material. The statement in the instrument, “That the party of the second part, H. R. Trippe, principal, and T. D. White, security, hereby agree to make bond in the sum of $1,000.00 . . said bond to be payable to the party of the first part in the event that he suffers damages for the failure of the party of the second part to comply with the provisions herein, or failure to complete by date agreed upon. This bond to be cancelled and satisfied upon completion of this contract,” is ambiguous, and it is a question for a jury to determine whether the parties intended for this portion of the instrument to be the bond or suretyship contract referred to, or whether this was an agreement on the part of Trippe and White to execute a bond, that is, to execute another instrument as a bond. The petition does not show that M. K. Melvin was damaged or sustained any loss by reason of the alleged breach of. the instrument declared on, and consequently the petition was subject to the defendant’s demurrer, even though the instrument should be construed as a bond or suretyship contract. The judgment is affirmed, with direction that the judge of the superior court give direction to the Civil Court of Fulton [415] County to allow the plaintiff to amend his petition, if he so desires; and if the petition is amended to meet the defendant’s demurrer, that the.case be tried on the theory as above indicated. Judgment affirmed, with direction. 'Felton and Worrill, JJ., concur.