Lark v. Cheatham

80 Ga. 1 | Ga. | 1888

Blandford, Justice.

This was an action upon an account, brought by Cheat-ham against the executors of Hodnett, deceased. The defendants pleaded payment, and accord and satisfaction, and the statute of limitations.- The court referred the case to an auditor, who found in favor of Cheatham the full amount of the account, together with compound interest thereon. Exceptions to this ruling of the auditor were taken, and the matter was referred to the judge of the superior court without the intervention of a jury; and the court overruled the exceptions and affirmed the report except as to an item of $140, and except as to the compound interest contained in the amount found by the auditor. To this judgment the defendants excepted.

The record shows that in 1S67, Cheatham sold to Hod-nett certain drugs, and at the end of the year abalance was struck and interest computed from that time by Cheat-ham. The account ran on until a short time before the death of Hodnett, in 1882, and at the end of each consecutive year the balance was struck and interest computed. It appears that Cheatham himself considered the account due at the end of each year. There is no evidence in the record to show any mutual dealings between Hod-nett and Cheatham; at no time does it appear that Cheatham ever became the debtor of Hodnett,but Hodnett was always the debtor of Cheatham. In order to make a mutual account there must be indebtedness on both sides. There are certain credits upon the account, but they appear as payments; and it is m anifest that if Hodnett had brought an action against Cheatham for the money which lie had paid Cheatham as payments on this account,* he could not recover. Cheatham was not indebted to him; he had received this money from Hodnett as payments. So we think that the court erred in holding that this was a mutual account and that the statute of limitations did not apply to any part of it. We are of the opinion that the statute of limitations applies to the whole of this account, except that portion which became due within four years before the commencement of this action.

Judgment reversed.