Adams brought suit on a contractor’s bond against Haigler and Frey as principals and Bazemore as surety. Demurrers were filed by the defendants to. the petition, and were sustained by the trial court. On exceptions to this judgment, the Supreme Court reversed the judgment, and held that the “allegations in the original petition and the amendment seem to set forth a complete cause of action upon the bond,” and that “the petition was not subject to any of the objections set forth in the demurrers.” Adams v. Haigler, 123 Ga. 659, 51 S. E. 638. The opinion of the Supreme Court is comprehensive, and fully settles the law of the case relating to the allegations of the petition. Me do not think any profitable purpose would be accomplished by making an extended statement of the case, as that has been done by the Supreme Court. The case is now before this court on exceptions to the refusal of the court to strike certain pleas, and to the granting of a nonsuit.
The defendants filed separate answers, denying the allegations of the plaintiff, except as to the execution of the contract. Haigler pleaded: (3) That at the time of entering into that contract another contract was made by Frey and himself with the plaintiff, in which it was agreed that the plaintiff should purchase the lumber and other things necessary in the construction of the house; (4) that after the signing of the original contract it was agreed between the plaintiff and himself that they would not carry out all its terms, and it was not carried out in all its terms, in that the plaintiff agreed to buy and to furnish to him certain lumber, and the plaintiff instructed him that it was not necessary to live up
Frey, in his answer, repeated the foregoing averment of Haigler as to the agreement that the plaintiff should furnish lumber, etc.,, and set up further: (4) That after the signing of the contract he (Frey), with the consent of the plaintiff and of Haigler, withdrew from “said partnership” and the contract, and was released from an}' further interest or connection therewith; and (5) that up to-the time of said withdrawal he had not failed or refused to carry out his contract, and it was at the suggestion of the plaintiff (he has learned since his withdrawal) that he gave up the contract, and. it was admitted by the plaintiff as being satisfactory that he should withdraw. A demurrer to each of these paragraphs, as well as; to the entire answer of Frey, was overruled.
Bazemore pleaded: (3) That at the time the contract attached to the petition was made he “knew of no other contract being signed between the parties thereto, and he never consented in any way to the change, abrogation, or alteration of said contract in. any wa}', nor to the signing of any other contract in reference thereto;” (4) that “he is discharged by law from any liability on said bond, for the reason that said averments in the declaration admit said contract was abrogated, altered, and changed by the parties thereto by mutual consent, and without the knowledge and consent of” this defendant; (5) that “he is discharged from liability on said bond as surety, for the further reason that said changes, alterations, and abrogations of said contract increased the risk of said defendant as suretj', and exposed the defendant to greater liability thereon, without his knowledge or consent;” (6)
1. We will consider the pleas and demurrers in so far as we think the judgment of the court was erroneous thereon. The demurrer to paragraph 3 of Haigler’s answer should have been sustained; the alleged change of the contract in the particular mentioned hav
The third paragraph of the answer of the defendant Frey should have been stricken, for the same reason that the demurrer to paragraph 3 of Haigler’s answer should have been sustained.
The demurrer to paragraphs 4, 5, 6, 7, 9, 10, 12, and 13 of Bazemore’s answer should have been sustained.' The questions made by these paragraphs of the surety’s answer are fully covered by the decision of the Supreme Court overruling the demurrers to the petition. These allegations of the petition were held by the Supreme Court not to constitute a novation of the contract so as to increase the risk of the surety and to release him from the contract. “The act of Haigler in carrying on the work was, under the allegations of the petition, not a novation, but in pursuance of the original contract. . . Bazemore’s risk as surety was not increased by any act of Adams, and . . the condition of the bond was broken by Haigler’s failure to comply with the terms of the
The decision of the Supreme Court, we think, reduced the defenses that could be made by the defendants (1) to showing that the delay in completing the work was due to the alterations and additions made by the plaintiff, and not to the fault of the contractors; (2) to any material changes in the contract not embraced in the admitted changes set out in the petition, and which were not ■consented to by the defendant Bazemore, and which increased his risk as surety. (3) The separate answer of Frey averred that the plaintiff had, with the consent of Haigler, released him from compliance with the contract. This made a sufficient defense as to him, if true. Except as herein ruled, we think the judgment of the trial court in overruling the demurrers to the pleas was right.
2. We think the court erred in sustaining the motion to non-suit. The question on the nonsuit is, not whether the plaintiff was entitled to recover, but whether his evidence supported the case made by the allegations of his petition. An examination of the evidence will show that the plaintiff substantially supported the allegations of his petition. The damage claimed under the contract was composed of three items: (1) The sum of $426.03, besides interest, expended by the plaintiff in excess of the contract price in the purchase of material and in the payment of labor; (2) $40, the rental value of the house between the date fixed in the contract for the completion of the house and the date when it was sufficiently completed for occupation; (3) $33.60 for additional work necessary to be done, and the material therefor, in order to complete the house in accordance with the contract. In support of these items the plaintiff introduced the contract and bond sued on, and showed, by his own testimony and that of his architect, that the contractors commenced work under the contract. In a few daj'S one of the contractors, Frey, abandoned the work without the consent of the plaintiff, and the other contractor, Haigler, continued under the contract. He could not get credit for the mate
Judgment reversed..