Poole v. Trimble

102 Ga. 773 | Ga. | 1898

Simmons, C. J.

We think that the court below did not err in granting a nonsuit. When the loan was made, no time for its repayment ivas agreed upon by the parties, but in March, 1891, plaintiff wrote a letter which was in effect a demand, and which, therefore, fixed the maturity of the debt. Where a debt is not at once due and no time is specified for its payment, it is due and payable in a reasonable time or upon demand subsequently made. The cases of Chandler v. Chandler, 62 Ga. 612, and Patterson v. Blanchard, 98 Ga. 518, relied upon by plaintiff in error, are readily distinguishable from the present; for in neither, of those,cases was there any demand and refusal to pay. Arguendo, those .cases are authority for our decision in this, that a debt for .which no time of payment has been fixed and which is not due at once, becomes due immediately upon demand and refusal to pay. . In the present case, the plaintiff wrote the defendant ;to the effect that she was needing money. This amounted to a demand upon him, and the whole amount became immediately due and payable, and immediately the statute of limitations began to run. Suit was not brought until more than four years after the time of this demand; and we think therefore that the action was barred by the statute of limitations. ■ It follows that the trial judge did not err in granting a nonsuit upon that ground, no question being raised as to the propriety of this method of taking advantage of the plea of the statute of limitations which had been filed. In this connection see Small v. Cohen, 102 Ga. 248.

The debtor, the defendant in this suit, made several payments during the time intervening, between the demand and the filing of the suit, and subsequently to the demand plaintiff agreed to extend the time of payment until the fall of 1895, such promise not being in writing.. Section 3788 of our Civil Code provides that “A newT 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, must be in- writing, either in the party’s own handwriting, or subscribed -by him or some one authorized by him. The several payments made and the new promise orally given were, therefore, ineffectual, to fix a new point from which the limitation should commence running. The statute of limitations commenced to run from-the time .the demand was made, and no new point was- ■ created by the subsequent payments or the promise made in parol.

Judgment affirmed.

All the Justices concurring.