16843 | Ga. Ct. App. | Apr 20, 1926
1. Where a general deposit of money in a bank, to bear interest at a specified rate from date, was not evidenced by the usual certificate of deposit or other writing fixing the time of payment, the statute
2. Where a person who had money on deposit in a bank under the terms indicated above agreed with an individual to withdraw the money from the bank and to lend it to him upon the same terms and conditions (except as to the rate of interest) under which it had been held by the bank, and the money was withdrawn and loaned accordingly, the individual was substituted for the bank as a debtor (McGregor v. Battle, 128 Ga. 577, 580, 58 S.E. 28" court="Ga." date_filed="1907-07-10" href="https://app.midpage.ai/document/mcgregor-v-battle-5575878?utm_source=webapp" opinion_id="5575878">58 S. E. 28, 13 L. R. A. (N. S.) 185; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S.E. 589" court="Ga. Ct. App." date_filed="1913-03-18" href="https://app.midpage.ai/document/luthersville-banking-co-v-hopkins-5606289?utm_source=webapp" opinion_id="5606289">77 S. E. 589) ; and the rule as to the operation of the statute of limitations which would have obtained as between the depositor and the bank was applicable as between the parties to the loan agreement. Compare Patterson v. Blanchard, 98 Ga. 518 (25 S.E. 572" court="Ga." date_filed="1896-06-01" href="https://app.midpage.ai/document/patterson-v-blanchard-5566851?utm_source=webapp" opinion_id="5566851">25 S. E. 572).
3. Since, under the other facts appearing, if there had been no substitution v of debtors and the suit had been brought against the bank, it could not have been said as a matter of law that the claim was barred, the debt against the substituted individual, contracted upon the same terms as to maturity, can not be held barred as a matter of law where a demand for its payment was made within six and a half years from the date of the loan, and suit was brought to recover the amount within four years after the demand. •
4. Under the above rulings, the petition was not subject to the demurrer invoking the statute of limitations. The facts in this case are to be distinguished from transactions involving notes payable on demand (see Civil Code (1910), §§ 3434, 4292; Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522, 124 S.E. 72" court="Ga. Ct. App." date_filed="1924-07-22" href="https://app.midpage.ai/document/hobbs-v-citizens-bank-5616324?utm_source=webapp" opinion_id="5616324">124 S. E. 72), and also from loans under oral agreements silent as to the matter of maturity. See Chandler v. Chandler, 62 Ga. 612; Teasley v. Bradley, 110 Ga. 497 (3) (35 S.E. 782" court="Ga." date_filed="1900-04-09" href="https://app.midpage.ai/document/teasley-v-bradley-5569911?utm_source=webapp" opinion_id="5569911">35 S. E. 782, 78 Am. St. Rep. 113). Nor do the facts of the instant record require a decision as to when the statute of limitations would begin to run against a loan to an individual, the terms of which are oral and provide for payment on demand, but as to which there is not, as here, a stipulation that the money is received under the same terms and conditions (except as to interest) on which money is received by a bank on general deposit. See Patterson v. Blanchard, supra; Sweet v. Irish, 36 Barb. 467" court="N.Y. Sup. Ct." date_filed="1862-05-12" href="https://app.midpage.ai/document/sweet-v-irish-5460320?utm_source=webapp" opinion_id="5460320">36 Barb. 467 (32 L. R. A. (N. S.) 493 note); Re Fallon, 110 Minn. 213" court="Minn." date_filed="1910-02-18" href="https://app.midpage.ai/document/fallon-v-fallon-7975251?utm_source=webapp" opinion_id="7975251">110 Minn. 213 (2) (124 N. W. 994, 32 L. R. A. (N. S.) 486).
5. The petition alleges that the loan to the defendant was made “the first part of April, 1918,” the exact date not being stated. Held: The petition was not, on account of this omission, subject to demurrer upon the ground that it failed to show when the loan was made, “thus failing to furnish defendant with an itemized statement as required by law.” Assuming that the exact date should have been alleged (but see Bland v. Strange, 52 Ga. 94; Busby v. Marshall, 125 Ga. 645 (1), 54 S.E. 646" court="Ga." date_filed="1906-05-24" href="https://app.midpage.ai/document/busby-v-marshall-5575075?utm_source=webapp" opinion_id="5575075">54 S. E. 646; s. c. 3 Ga. App. 764, 60 S.E. 376" court="Ga. Ct. App." date_filed="1908-02-24" href="https://app.midpage.ai/document/busby-v-marshall-5602932?utm_source=webapp" opinion_id="5602932">60 S. E. 376; Hicks v. Hamilton, 3 Ga. App. 112, 59 S.E. 331" court="Ga. Ct. App." date_filed="1907-11-25" href="https://app.midpage.ai/document/hicks-v-hamilton-5602729?utm_source=webapp" opinion_id="5602729">59 S. E. 331), since there was a mere indefiniteness and not a total
6. The evidence did not conclusively show that the plaintiff had demanded payment of the principal more than four years before the filing of the suit. Such other and previous demands as may-have been made by her could have been found to have had reference only to the payment of accrued annual interest which, under the terms of the loan, she had a right to demand without demanding the principal. In this respect the case differs from Poole v. Trimble, 102 Ga. 773 (29 S.E. 871" court="Ga." date_filed="1898-01-10" href="https://app.midpage.ai/document/poole-v-trimble-5567977?utm_source=webapp" opinion_id="5567977">29 S. E. 871), in which it conclusively appeared that the plaintiff made a general demand before any interest was due.
7. The evidence was in substantial accord with the petition, and did not demand a finding in favor of the special plea of the statute of limitations, which plea was in addition to the demurrer.
8. The above rulings will dispose of all questions argued or referred to in the brief for plaintiff in error. The demurrers to the petition were properly overruled, and the judgment refusing the motion for a new trial was not erroneous for any reason urged.
Judgment affirmed.