Foster & Company General Contractors, Inc. “Foster” and Travelers Casualty and Surety Company of America “Travelers” appeal the trial court’s order i granting summary judgment to House HVAC/Mechanical, Inc. “House” and ii denying summary judgment to Foster and Travelers, on House’s breach of contract action. We reverse for the reasons set forth below. Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 c. A de novo standard of review applies to an appeal from an order either granting or denying summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Citation omitted. Ledford v. Smith , 274 Ga. App. 714, 715 618 SE2d 627 2005. Terms of the Subcontract. On October 16, 2001, House, as subcontractor, and Foster, as contractor, entered into a subcontract the “Subcontract” pursuant to which House agreed to provide a heating, venting, and air conditioning system for the Clayton County Board of Education Building Complex the “Project” for a base contract price of $899,172. Travelers was the surety on Foster’s Project payment bond.
Under Paragraph 11.2.6 of the Subcontract, House was required to pay “for all materials, equipment and labor used in, or in connection with, the performance of the Subcontract through the period covered by previous payments received from Foster . . . .” Foster agreed to make progress payments and the final payment to House within seven working days after Foster received payment from the Clayton County Public Schools the “Owner”. Paragraph 6.2 provided, however, that before the final payment, House, if required by Foster, was obligated to “submit evidence satisfactory to Foster that all payrolls, bills for materials and equipment, and all known indebtedness connected with House’s Work had been satisfied.” Furthermore, pursuant to Paragraph 8.2.5 b, Foster had the absolute right to set off against any sums, monies, or amounts due or owing to House all claims, debts, costs, expenses, damages, liabilities or other obligations which Foster has incurred or might incur as a result of any acts, omissions, breaches, or negligence by House arising out of or related to any and all agreements, contracts, subcontracts, . . . by and between Foster and House, . . . the Project, . . . or any other matters or dealings of any kind between Foster and House.” Paragraph 12.6.1 further provided that if House defaults
