56 Ga. App. 331 | Ga. Ct. App. | 1937
II. T. Lynch brought an action against J. D. Duke to the June, 1936, term of Peach superior court on an unsealed promissory note. By paragraph, the petition substantially alleges: (1) J. D. Duke’s residence. (2) “Said defendant is indebted to petitioner in the principal sum of . . $394.35, with interest thereon from July 15, 1929, and 10 % attorney’s fees, on a promissory note of which petitioner is the owner and holder for value, after maturity.” (3) On July 15, 1929, the defendant made a payment of $352.10 on said note, leaving, unpaid said principal balance, which was the only indebtedness existing between defendant and the payee of said note between said date and the filing of this suit, and which was accompanied by a letter from defendant reciting: “Enclosed I hand you check for $352.10, the balance to follow shortly.” (4) On September 6, 1930, the defendant wrote a letter to the same agent of payee to whom said
The demurrer to the original petition was substantially as follows: (1) The petition sets out no cause of action. (2) "It affirmatively appears from the . . petition that the cause of action is barred by the statute of limitations; for that the suit is upon a promissory note not under seal, action upon which is barred in six years after the same becomes due, . . it appearing . . that the same became due and payable on July 15, 1928.” (3) "Said petition does not plead a sufficient new promise to relieve the bar of the statute; . . for that the new promise attempted to be pleaded in paragraph 3 of the petition, if sufficient otherwise, was not within six years, and because the other new promises sought to be pleaded . . are not new promises to pay the promissory note, . . or any promissory note, but are new promises to pay an account, and no account is sued on.” (4)
At this stage of the case, the plaintiff amended his original petition by adding the following paragraphs: (9) On June 15, 1927, the defendant executed and delivered to the payee of the note sued on the following contract: “City, Fort Valley, State Ga. Date, June 15, 1927. To The Packer: I hereby agree to use 500 inches of advertising space in The Packer (published weekly), within one year from date, at the contract price of $2.25 per inch per insertion. In the event I do not use 500 inches within one year, you are to bill me back for the difference between $2.25 per inch and the rate that should properly apply on the amount of space actually used, as per schedule appearing on the reverse side of this sheet.” (10) The payee of the note is the publisher of The Packer. The advertising space contracted for was fully furnished monthly, and bills rendered monthly in accordance with a provision appearing on the reverse side of the contract, as follows: “2. All bills for.advertising are due and payable the first of each month, for space used the preceding month.” (11) The defendant later gave his note which is the basis of this suit, to cover the indebtedness accruing under said contract. (12) By his letters to the payee the defendant lulled the payee of said note into a sense of security that the indebtedness was undisputed, and that the sole reason for non-payment of said note was defendant’s inability to pay the same. (13) By reason of the foregoing, the defendant is equitably estopped to defend this suit on the ground of the statute of limitations.
The plaintiff having amended his petition, the defendant renewed his original demurrer, and further demurred: (1) “To paragraph 12 of the amended petition, because the allegations thereof are . . immaterial and not germane to the cause of action pleaded; the fact that plaintiff was lulled into security not
Since the unsealed note declared on matured on July 15, 1928, and suit was brought to the June term, 1936, the action was barred by the six-year statute of limitations, unless the facts pleaded prevent the bar of the statute. Code, § 3-705. “A new promise, in order to renew a right of action already barred, or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party’s own handwriting, or subscribed by him or some one authorized by him. (Acts 1855-6, p. 235.)” § 3-901. To the same effect is the requirement of the statute of frauds, which declares that “Any promise to revive a debt barred by a statute of limitation” must be in writing. See Code, § 20-401, par. 6. Even before the new promise was required to be in writing the rule was as follows: “An acknowledgment, or promise, to take a case out of the statute of limitations, must specify or plainly refer to the particular debt, or demand, or cause of action, which is sought to be revived.” Martin v. Broach, 6 Ga. 21 (4) (50 Am. D. 306). After referring to the Martin case and other cases, Judge Lump-
We think it clearly appears from the foregoing decisions that the courts of this State adhere to the strict rule that the writing designed to toll the statute of limitations must in itself “connect the debt with the promise and sufficiently identify the debt.” Neither one nor all of the letters pleaded in the instant case in themselves “connect the debt with the promise.” Indeed, these letters not only fail to identify in any way the note declared on, but they mention an “account,” without indicating that any note was involved, or that the word “account” had the slightest refer
Judgment reversed on the main bill of exceptionsj cross-bill dismissed.