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PLAY SYSTEMS, INC. v. AMERICAN DRUGGISTS INSURANCE COMPANY.
70820.
SOGNIER, Judge.
Action on contract. DeKalb State Court. Before Judge Carlisle.
Play Systems, Inc. (Play Systems) brought this action against Mark Smith Construction Company, Inc. (Mark Smith Co.) and American Druggists Insurance Company (ADIC) seeking payment for recreational equipment furnished by Play Systems to Mark Smith Co. Mark Smith Co. contracted with the City of Atlanta to install playground equipment in a city park and was bonded for performance and payment under the project by ADIC. ADIC moved for summary judgment on the ground that it had been discharged from the alleged debt pursuant to OCGA 10-7-24. The trial court granted ADIC's motion for summary judgment and Play Systems appeals.
Appellant contends the trial court erred by granting summary judgment in favor of appellee because of appellant's failure to first bring an action against Mark Smith Co., the principal contractor, before proceeding against appellee. Appellant argues that OCGA 10-7-24, which provides that a surety shall be discharged if a creditor fails to bring an action against the principal within three months after notice by the surety to so proceed, is not applicable in this action on a bond provided under OCGA 13-10-1. We agree.
Mark A. Smith III, for appellee.
Michael J. Reily, for appellant.
DECIDED OCTOBER 8, 1985.
Thursday May 21 16:57 EDT


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