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Breach of warranty. Clayton Superior Court. Before Judge Crumbley.
DEEN, Presiding Judge.
Hubert, the owner of certain commercial property, filed a complaint against Beale Roofing, Inc., the contractor, GAF Corp., a supplier of roofing material, and Commercial Union Insurance Co. which as twice amended alleged in substance that Hubert owned certain commercial property leased to Winn-Dixie; that Winn-Dixie, not a party to this action, caused a roofing job to be done on plaintiff's property in plaintiff's name, that Winn-Dixie paid for this job; that the defendants by concerted action accepted payment for the job from Winn-Dixie and had a 20-year-roofing bond issued in plaintiff's name for the purpose of deceiving the plaintiff as to the kind of roofing job performed. The activity alleged is that defendant Beale Roofing, Inc. acted as the roof contractor, GAF corporation as supplier of materials and principal in the bond and Commercial Union Insurance Co. as surety on the bond. It is alleged that this activity, the issuance of the bond, and the justifiable implications contained therein constituted a false representation that a new 20-year roof had been installed in a workmanlike manner in accordance with manufacturer's specifications. A printed copy of the bond is attached and states that "Principal has manufactured and sold necessary materials for constructing Built-Up-Roof" [typed in] and guarantees to make "repairs of injury" resulting to it from ordinary wear and tear for a 20-year period, in a sum not exceeding $1710. The job was completed and paid for and the bond issued in December, 1972.
The petition further alleges that in September, 1979, the plaintiff, relying on the implications contained in the bond (apparently referring to his belief that a new roof had been installed) settled certain unspecified litigation with his lessee, Winn-Dixie, and thereafter an inspection of the roof was ordered for the purpose of making repairs. He then discovered a new roof had not been placed on the six-year-old building in 1972 but instead it had been "patched" and he was informed that a new roof had become necessary, at a cost of over $24,000.
The court, properly treating the complaint as one sounding in fraud, granted motions to make more definite statements and eventually dismissed the action as to Beale Roofing, Inc. Plaintiff appealed after first dismissing the two remaining defendants.
The appellant contends that since a pleading should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support which would entitle him to relief ( Cochran v. McCollum, 233 Ga. 104, 210 SE2d 13 (1974)) and since the bond was ambiguous, this court, after drawing all inferences in favor of the pleader ( Bulloch County Hospital Authority v. Fowler, 124 Ga. App. 242 (1-b) (183 SE2d 586) (1971)) should allow the claim to go to the jury. The only basis for this conclusion is the allegedly ambiguous language of the bond which refers first to materials "for constructing built up roof" and, in a subsequent paragraph, covenants to make "repairs of injury to said roof."
Northeast Const. Co. of W. Va., 298 FSupp. 1135.
The issue frequently turns on whether the pleader has opportunity equal to that of the opposite party to determine the true state of affairs. Martin v. North Ga. Lumber Co., 72 Ga. App. 778 (35 SE2d 270) (1945). The plaintiff here had no contractual relation whatever with any of the defendants. The repairs were ordered, presumably in accordance with lease provisions, by the plaintiff's tenant, Winn-Dixie, and the bond to repair was made out to the plaintiff for the sole reason that he was the owner of the property being protected. The bond properly described the roof as a "built up roof" which was what the building had at the time of the lease. At no place does the bond state that a new roof is being installed. By the slightest exercise of diligence the plaintiff, had he wished, could either have examined the roof or at least made inquiries from his tenant or the roofing company as to what work had actually been done. That tenant, the only entity with whom he had a contractual relation, is not named as a party to the fraud. That he settled pending litigation with Winn-Dixie without any inquiries as to what repairs had been made is no fault of the supplier of roofing material, the roofing contractor, or its insurer.
The trial court properly dismissed the complaint on motion.
Judgment affirmed. Banke and Carley, JJ., concur.
W. H. Duckworth, Jr., for appellee.
Robert H. Owen, for appellant.
Thursday May 21 23:04 EDT

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