119 Ga. 50 | Ga. | 1903
Nichols & Lemon filed suit, on February 18, 1902, against Thornton, upon an account consisting of numerous items, the first being dated February 2, 1895, and the last January 26, 1900. There was apparently a balance due of $232.58, besides interest. The defendant demurred to the petition, setting up that all of the items prior to and including February 18, 1898, were barred by the statute of limitations. He also filed a plea of the statute of limitations, and of discharge in bankruptcy. To meet the demurrer the plaintiffs offered an amendment, alleging that the defendant had admitted in writing, in his plea to this petition, his liability on the claim sued on, the admission referred to being in the following words: “ And now comes the defendant W. E. Thornton, and for plea and answer says that he does not deny opening the account sued on in favor of the plaintiffs alleged in paragraph 1 of the petition of plaintiffs; that there is a considerable portion of said account still unpaid by him. Defendant admits paragraph 2 of plaintiffs’ petition.” Paragraph 2 of the original petition sets forth the entire sum claimed, both principal and interest. The amendment also alleged that the defendant, after his discharge in bankruptcy, had “ promised and agreed on more than one occasion ” to pay plaintiffs the account sued on, and had in the bankruptcy proceeding admitted in writing his liability to plaintiffs for the sum of $105 for goods purchased during the years 1895,1896, and 1897, in Acworth, Georgia, the liability and sums thus admitted constituting a part of the account sued on. The defendant demurred to the amendment in so far as it
The judgment must be reversed on the ground that the court erred in overruling the demurrer so far as the same related to the items of the account which were contracted more than four years before the filing of the suit, and because the court erred in refusing to grant a new trial as to the items contracted prior to the discharge and not barred by the statute of limitations.
■Judgment reversed.