Lumbermen’s Mutual Casualty Company, as subrogee to Jack Greene, filed suit against Pattillo Construction Company, Inc. (Pattillo) for damages to a building constructed by Pattillo for Greene. The complaint sounded in tort, warranty, and breach of contract, relying on the written agreement between Greene and Pattillo. Pattillo moved for summary judgment, asserting as a bar the six-year statute of limitation for actions arising under a written contract (OCGA § 9- *453 3-24). The trial court granted Pattillo’s motion and Lumbermen’s Mutual Casualty Company appeals.
1. Appellant contends the trial court erred by finding that the contract in issue was not a contract under seal and thus was not subject to the twenty-year statute of limitation provided by OCGA § 9-3-23. The original contract between Greene and appellee, executed in May 1972, made no reference to the use of a seal; however, a later amendment recited at its conclusion: “IN WITNESS WHEREOF, the parties have hereunto set their hands and affixed their seals this 7 day of August, 1972.” It is uncontested that although Greene signed his name on the amendment followed by the word “(seal),” appellee did not put the word “seal” or “L.S.” or any other indication of seal after its signature at any point on the contract.
“To constitute a sealed instrument, it must contain a recital in the body of the instrument to the effect that it is given under seal, and the signature of the party to the instrument must have attached thereto a seal or scroll. In other words, the rule is that there must be both a recital in the body of the instrument of an intention to use a seal and the affixing of the seal or scroll after the signature. [Cits.]”
Chastain v. L. Moss Music Co.,
2. We find no merit in appellant’s argument that the presence of Greene’s seal raised a question of fact whether the one seal was a sufficient indication of both parties’ intention to render the contract a sealed instrument as to both Greene and appellee. “In order to render a [contract] a sealed instrument, the intention to execute it as such must appear both in the body of the instrument and after the signature. [Cits.]”
Johnson v. Intl. Agricultural Corp.,
3. Appellant contends the trial court erred by granting appellee’s motion for summary judgment on the basis that appellant’s cause of action was barred by application of the six-year statute of limitation in OCGA § 9-3-24. We find no merit in appellant’s arguments that the date for determining when its cause of action accrued under OCGA § 9-3-24 should have been the date of the collapse of the building’s roof. “ ‘Under Georgia law, the statute of limitations runs from the time the contract is broken “and not at the time the actual damages re-
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suits or is ascertained.” [Cits.]’ [Cits.] Thus it was held in
Wellston Co. v. Sam N. Hodges, Jr. & Co.,
In the instant case, it is uncontroverted that construction of the building was completed late in August 1972 and appellant’s subrogor took possession of the building on or before November 8, 1972. Appellant’s complaint on a simple contract in writing was not filed until March 3, 1979, more than six years after the cause of action accrued. Thus, the action was barred by the provisions of OCGA § 9-3-24 and the trial court did not err by granting appellee’s motion for summary judgment.
R. L. Sanders &c. Co. v. Miller,
4. Appellant’s argument that this application of the statute of limitation is unconstitutional cannot be considered by this court as the question was not properly raised in the trial court.
McDaniel v. Anderson,
Judgment affirmed.