In Case No. A02A2386 appellant-plaintiff Advance Tufting, Inc. appeals from the Superior Court of Murray County’s grant of summary judgment to appellee-defendant Mohammed Daneshyar upon its amended complaint on oрen account
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as barred by the statute of limitation. In Case No. A02A2387, Daneshyar cross-appeals under the right for any reason principle, see
Golden Peanut Co. v. Bass,
By its amended complaint, Advance sought to recover $95,209.92, the balance owing on Daneshyar’s account plus commercial interest thereon, as to carpeting it sold him. upon invoices dating from Januаry 18, 1994, through July 11, 1996. While Daneshyar’s status as the agent of Gulf Palace is disputed in the record, there nonetheless is evidence showing that by letter to Gulf Palace, dated March 29, 1999, and written to Daneshyar’s attention, Advance noticed Gulf Palace of its intent to commence collection action as to amounts in arrears on its Gulf Palace account. Advance attached a copy of Gulf Palace’s statement of account to that point, the last invoice entered thereon as dated July 11, 1996. On April 21, 1999, Daneshyar as President of Gulf Palace wrote Advance a letter requesting 2 an offset in the amount of $31,650 against its Advance account — this purportedly for storage fees which Gulf Palace had avoided by reselling carpeting received from Advance in a damaged condition. Advance filed the instant lawsuit on August 17, 2001.
On appeal, Advance challenges thе grant of summary judgment for Daneshyar as time-barred, the governing four-year statute of limitation, OCGA § 11-2-725 (1), as not triggered under OCGA § 7-4-16 by the last invoice sued on, that of July 11, 1996. In support of this claim, Advance argues that: (a) the governing statute of limitation wаs not triggered by OCGA § 7-4-16 for want of evidence showing that it invoiced Daneshyar individually for carpet or that Daneshyar, individually, received any such invoice; and (b) that OCGA § 7-4-16 is inapplicable in that there is no evidence of a liquidated demand. In the alternative, Advance argues the instant action as timely filed as accruing on April 21, 1999, for breach of contract — this on the claim that Daneshyar repudiated the agreement of the parties as to payment for goods by his letter to Advance of April 21, 1999, seeking an offset against Gulf Palace’s Advance account.
“An action for breach of any contract for sale [of goods, as here,]
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must be commenced within four years after the cause of action has accrued. ... A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breaсh.” OCGA § 11-2-725 (1), (2). “The statute of limitations on an open account runs from the date it is due.”
Murray v. Lightsey,
Citing
Mills v. Barton,
As a case arising out of personal loans with no agreement as to repayment,
Mills
and the case on which it relies are inapposite as to the instant suit on an open commercial account detailing transactions in which goods were sold. Id. at 413-414; see also OCGA § 7-4-16 (“ ‘Commercial account’ means an obligation for the payment of money arising out of a transаction to sell or furnish, or the sale of, or furnishing of, goods or services other than a ‘retail installment transaction’ as defined in paragraph (10) of subsection (a) of Code Section 10-1-2.”). Notwithstanding its remaining arguments to the cоntrary, Advance admits in judicio in its brief on appeal that Daneshyar was making payments on the amounts due on the statement of account sued upon. See generally
Gill v. State,
Neither is there merit in Advance’s claim that the governing statute of limitation was not triggered under OCGA § 7-4-16 in that the amount Daneshyar owed on account wаs in dispute. While Advance correctly asserts that “[i]n the absence of a liquidated demand, OCGA § 7-4-16 is inapplicable,”
Typo-Repro Svcs. v. Bishop,
Finally, Advance relies on
Franconia Assoc. v. United States,
In Franconia Assoc., the United States Supreme Court held that the Emergency Low Income Housing Preservation Act of 1987 effected a repudiation of the right to prepay certain loan contracts which borrowers had previously negotiated to facilitate building low- *419 and middle-income housing. There, the Supreme Court concluded that the borrowers’ repudiation claims were not time-barred because the cause of action would not accrue until the government dishonored its obligation to accept prepayment. Pеrtinently, the Supreme Court summarized,
“the time of accrual . . . depends on whether the injured party chooses to treat the . . . repudiation as a present breach.” 1 C. Corman, Limitation of Actions § 7.2.1, p. 488 (1991). If that party “eleсts to place the repudiator in breach before the performance date, the accrual date of the cause of action is accelerated from the time of performance tо the date of such election.” Id., at 488-489. But if the injured party instead opts to await performance, “the cause of action accrues, and the. statute of limitations commences to run, from the time fixed for performance rather than from the earlier date of repudiation”
(Citation and punctuation omitted; emphasis supplied.) Franconia Assoc. v. United States, supra, 153 LE2d at 147.
While Advance characterizes Daneshyar’s April 21, 1999 letter seeking offset authority as a repudiation and breach of the parties’ agreement on pаyment, we conclude that the letter fails to qualify as such in that it “requests,” but . does not condition repayment upon being allowed, an offset. “[A] statement of intention not to perform except on conditions which go beyond the contract constitutes a repudiation.” (Citation and punctuation omitted.) Restatement (Second) of Contracts, § 250, comment b; Franconia Assoc. v. United States, supra. No statement of intent not to perform of record, there is here nо repudiation. In the absence of any repudiation, there can be no breach by filing suit before the time for performance or upon Advance’s refusal to accept payment reduced by an offsеt taken.
Advance’s cause of action thus as time-barred, the grant of summary for Daneshyar was proper.
Judgment affirmed in Case No. A02A2386. Appeal dismissed as moot in Case No. A02A2387.
Notes
A suit on open account is a simplified plеading procedure where a party can recover what he was justly and equitably entitled to without regard to a special agreement to pay such amount for goods or services as they were reasonably worth when there exists no dispute as to the amount due or the goods or services received. An action on open account may be brought for materials furnished and work performed. However, if there is a dispute as to assent to the services or to acceptance of the work done or as to what work was to be performed and the cost, then an action on open account is not a proper procedure. .
Watson v. Sierra Contracting Corp.,
Pertinently, Daneshyar wrote, “[PJlease credit our account with the difference which amounts to $31,650.” (Emphasis supplied.)
When the predominant element of a contract is the sale of goods, the contract is viewed as a salеs contract and OCGA § 11-2-725 is the applicable statute of limitation notwithstanding the potential for rendering substantial services incident to the performance of
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such contract. When the contract is predominantly one for the delivery of services, OCGA § 9-3-24 applies. See generally
Southern Tank &c. Co. v. Zartic, Inc.,