This is an appeal by complainant from a final decree sustaining a demurrer to a bill in equity and dismissing the bill upon the failure of complainant to amend after the demurrer was sustained.
The bill had been redrafted completely, to which the demurrer was sustained when the final decree was rendered. The bill as redrafted and finally amended (as was also the original bill) was against the United States Fidelity & Guaranty Company, J. B. Whitehead Plumbing and Heating Company (referred to hereafter as J. B. Whitehead), and Folmar-Flinn Corporation (referred to hereafter as (Folmar-Flinn). It alleged the existence of contracts by Folmar-Flinn as general contractors to build one hundred and forty-six dwelling units for three different owners. Folmar-Flinn made subcontracts with J. B. Whitehead to do the plumbing for each house. The U. S. F. & G. Co. as surety executed a bond as to each owner with J. B. Whitehead as principal, said bond being payable to Folmar-Flinn as obligee and conditioned as follows: "that the principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said principal".
The contract between J. B. Whitehead and Folmar-Flinn provided that J. B. Whitehead agreed to furnish Folmar-Flinn "a payment and performance bond" (but that Folmar-Flinn are to pay the premium on it), and "to promptly pay all items of labor and materials going into said work not later than the 10th day of the month following delivery to the job or installation as to materials and equipment and agrees to pay all labor weekly. In all events, J. B. Whitehead Plumbing and Heating agrees to pay for such labor, materials and other charges in such a manner that there will be no lien against the property or any claim against the general contractor or the owner." Paragraphs 6 and 7 of the amended bill set out the nature of the controversy here involved, and are as follows:
The letter referred to as Exhibit "D" is as follows:
"CC "Adams Supply Co.
"Folmar-Flinn Corp. "By: J. W. Rutland, Jr. (Signed)"
In paragraph 9 of the bill the contention of the respective parties is set out, as to which a justiciable controversy is alleged to exist as follows:
The relief prayed for is as follows:
There was only one demurrer filed to this amended bill. It begins: "Comes the respondent in the above styled cause and * * * refiles the demurrers now on file in said cause and in addition" assigns further grounds to the bill as a whole; and then to that aspect whereby complainant prays a judgment for $15,545.69, and assigns grounds. Then it proceeds to demur to that aspect which claims that liability on the bond against U. S. F. & G. Co. should be fastened by virtue of the contract between Folmar-Flinn and J. B. Whitehead, and assigns grounds. Then it proceeds to demur to that aspect which seeks to establish a lien for $2,194.13, and assigns grounds. Then to that aspect which seeks a revision and reformation of the bond referred to, and assigns grounds. Then to that aspect seeking an interpretation and revision of the bond so as to show an intention to make complainant beneficiary of the bond, and assigns grounds. The demurrer was signed by counsel for U. S. F. & G. Co. The decree sustained the demurrer, (1) to the bill as a whole; (2) to that aspect which claims a judgment against respondent for $15,545.69; (3) to that aspect which claims that liability should be fastened on U. S. F. & G. Co. as for "a performance and payment bond"; (4) to that aspect seeking to establish a lien for $2,194.13; (5) to that aspect seeking a revision and reformation of the bond in question; (6) to that aspect seeking an interpretation and revision of the bond so as to show an intention on the part of respondents to make complainant a beneficiary of it.
Strictly speaking, the demurrer is therefore only by the U. S. F. & G. Co., as only counsel for it sign the demurrer. So that, when the demurrer recites that the "respondent" comes and demurs that literally means that the U. S. F. & G. Co. comes and demurs. But none of counsel put that interpretation on it, and we will not. Counsel argue the questions involved as though each respondent, separately, has thus demurred. We shall do likewise.
It has been the policy of this Court, not always observed, to overrule a demurrer to a bill seeking a declaratory judgment when it contains the averments essential to that relief under section 156 et seq., Title 7, Code. Curjel v. Ash, 261 Ala. 42, 72 So.2d 732; Water Works and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Henry v. White, 257 Ala. 549, 60 So.2d 149; White v. Manassa, 252 Ala. 396, 41 So.2d 395; 7-A Ala.Dig., Declaratory Judgments, page 232.
Appellant in brief refers to the above cited cases and insists upon application of the ordinary procedure. We feel it is our duty to apply the ordinary rule and not consider the merits of the controversy to determine whether the demurrer was properly sustained.
The general rule also is that in passing on a demurrer to a bill as a whole if any feature of it is free from the objection made by such demurrer it should be overruled. Sellers v. Valenzuela, 249 Ala. 627, 32 So.2d 517; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2d 1100; Marshall County Gas District v. City of Albertville, 263 Ala. 601, 83 So.2d 299; Courington v. Kilgore, 264 Ala. 23, 84 So.2d 646; 8 Ala.Dig., Equity, page 529.
The bill in one aspect seeks an interpretation of the bond signed by U. S. F. & G. Co. as surety for J. B. Whitehead, with Folmar-Flinn as obligee, to determine whether it includes appellant as a third-party beneficiary in the light of Fidelity & Deposit Co. v. Rainer, 220 Ala. 262, 125 So. 55, 77 A.L.R. 13, and American Employers' Ins. Co. v. Lee & Kincaid Coal Co., 226 Ala. 262, 146 So. 408. That presents a justiciable issue, and there is no ground of the demurrer which points out an insufficiency in pleading it.
The features of the prayer designated (a), (b) and (c) merely specify the matters in controversy and pray for a decision of them. They do not pray for supplementary relief within the contemplation of section 163, Title 7, Code. We treated that statute and its appropriate exercise in Wolff v. Woodruff, 258 Ala. 1, 61 So.2d 69; Dozier v. Troy Drive-in-Theatres, 258 Ala. 417, 63 So.2d 368; Penney v. Odom, 260 Ala. 563, 71 So.2d 881.
For the reasons stated, we think the demurrer to the bill as a whole should have been overruled. That is feature number (1) of the decree. The features numbered (2) and (3) of the decree were also erroneous, as they refer to aspects which are incidental to the main relief sought. Feature numbered (4) refers to the aspect which seeks to establish a lien, if the court declares that U. S. F. & G. Co. is not liable to complainant on the bond. That relief is not sought to be granted until the court has ruled on the justiciable controversy set out in the bill, and that ruling is adverse to complainant. It is inappropriate to pass on the sufficiency of the bill as to such relief until the court makes declaration as to the primary controversy. When that is done, complainant will have an opportunity to make that contention if it desires to do so. At present there is no justiciable controversy as to that, and it may never reach such stage. The court will not inquire into and make declaration as to a controversy which may never reach a status proper for court action. Gambill v. Greenwood, 247 Ala. 149, 22 So.2d 903; Dozier v. Troy Drive-in-Theatres, Ala., 89 So.2d 537 (18-20).
As to features (5) and (6) of the decree, we do not find in the bill an aspect seeking to revise or reform the bond, but it only seeks to interpret it in the light of the facts alleged. Features (4), (5) and
In other respects the decree should be reversed and the cause remanded.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Reversed in part, vacated in part, and remanded.
LAWSON, STAKELY, MERRILL and SPANN, JJ., concur.