Opinion
37417.
DECIDED NOVEMBER 10, 1958. REHEARING DENIED DECEMBER 1, 1958.
Action on account. Savannah City Court. Before Judge Alexander. September 4, 1958.
John M. Brennan, Spalding, Sibley, Troutman, Meadow Smith, David H. Gambrell, for plaintiff in error.
Robert E. Falligant, contra.
In order to determine whether an action is barred by the statute of limitation, the true test is to ascertain when the action could have been first maintained in order to bring the cause to a successful conclusion.
DECIDED NOVEMBER 10, 1958 — REHEARING DENIED DECEMBER 1, 1958.
Edward A. Leonard brought an action against Michael John Cesaroni as executor of the will of Joseph A. Cesaroni. The suit was on an open account alleged to have been owing by the deceased to the plaintiff. Demurrers were filed to the petition. The petition was twice amended but demurrers to the amendment were sustained by the court and both amendments were stricken. It is to the orders sustaining the demurrers that the case is here for review.
Paragraph 1 of the petition alleges that the defendant is the duly qualified executor of the will of Joseph A. Cesaroni, who died testate August 3, 1952. Paragraph 2 alleges that the defendant qualified as executor October 27, 1952. Paragraph 3 alleges that the defendant is indebted to the plaintiff on a running open account in the amount of $7,685.67 as evidenced by statements attached as exhibits and made a part of the petition. Paragraph 4 alleges that the defendant transacted a great deal of business of the deceased during the lifetime of the deceased and that it has been most difficult for the petitioner to distinguish whether or not such transactions were for the deceased or for the defendant personally; that on August 31, 1956, the plaintiff filed suit against the defendant for $7,835.67 and found out later that one job amounting to $150 was for Michael John Cesaroni individually and that amount was deducted and the case was dismissed without prejudice on October 15, 1956, and has been brought again under Code § 3-808 permitting and providing that the suit shall stand on the same footing as the original suit. Paragraph 5 alleges that the indebtedness is just, due, and unpaid and that demand has been made and payment refused.
The defendant filed a plea and answer as follows: Paragraph 1 admits paragraph 1 of the plaintiff's petition.
For further plea and answer the defendant shows the death of Joseph A. Cesaroni on August 30, 1952; that letters testamentary issued to this defendant; that he qualified as executor on October 27, 1952; that deducting the time from the death of the testator to the time the letters testamentary were issued and the twelve months thereafter from which the defendant was relieved from suit, the right of action of the plaintiff on the cause sued upon accrued more than four years before the commencement of this suit as to each and every item of the account attached to and made a part of the petition, beginning November 1, 1942, through March 15, 1951, inclusive, and therefore is barred by the statute of limitation.
The defendant also filed a general demurrer to the petition and filed several special demurrers which allege as follows: Paragraph 1 demurs to each and every item of the account attached to and made a part of paragraph 2 of the plaintiff's petition covering the period November 1, 1942, through March 15, 1951, inclusive, and moves to strike the same because the statute of limitation has run thereon. Paragraph 2 demurs specially to one item dated April 1, 1952, "for work done on Monahan House `2'" because it fails to disclose the owner of the property, what improvements were made, and for whom said work was done. Paragraph 3 demurs specially to an item of account dated August 21, 1951, upon the ground that the petition fails to show where or upon whose property the work was alleged to have been done. Paragraph 4 demurs specially to an item of account dated October 15, 1951, upon the ground that the petition fails to show the location of the lot, the owner of the property, and the improvements alleged to have been done. Paragraph 5 demurs specially to the item of account dated December 1, 1951, upon the ground that the petition fails to show the location of the lot, the name of the owner of the property, and the work alleged to have been done. Paragraph 6 demurs specially to the item of account dated March 10, 1952, upon the ground that the petition fails to show the location of the new building, the owner of the property, and the work alleged to have been done.
Paragraph 7 demurs specially to the items of account dated March [?] 1952, to November 20, 1954, of the plaintiff's petition for the reason that there is not shown thereon the name of the owner of the property and improvements thereon for whom said work was alleged to have been done.
The plaintiff then amended the petition by adding paragraph 6 which alleged that the deceased began trading with the plaintiff in November 1942 and continued as a customer until his death on August 30, 1952; that after the first purchase by the deceased he advised the plaintiff that he wished to continue dealing with the plaintiff but that he would need more time to pay his accounts in the future, whereupon the plaintiff agreed to let the deceased pay the accounts at his convenience by mutual agreement. Then follows a list of indebtedness incurred up to July 27, 1945. This paragraph of the petition further alleges that as the deceased began to prosper in his business the Federal Government stepped in and began investigation for tax purposes, whereupon the deceased approached the plaintiff and asked him for a moratorium of his indebtedness until his affairs with the Federal Government had been straightened out. To this the plaintiff agreed and made no demand for the payment of the indebtedness and did not present bills; that when the defendant became executor of the will of the deceased, in the latter part of 1952, the defendant asked the plaintiff for and received an extension of time in which to pay the indebtedness due the plaintiff, and the defendant acknowledged the debt to be approximately $10,000; that the defendant wanted the indebtedness extended until the home of the deceased was sold and that the house was sold on March 19, 1956. This amendment also added count 2 regarding which counsel for the plaintiff in the court below (the plaintiff in error here) states in the brief: "The amendment also added count 2 to the petition, but there is no issue here concerning that count or the rulings thereon."
The defendant filed general demurrers to paragraph 6 as well as to count 2 (count 2 not here being considered). The court sustained the general demurrers to paragraph 6 and then ruled on the demurrers filed October 29, 1956, as follows: The general demurrer was overruled; special demurrer 1 was sustained "except as to `through March 15, 1951'. In this connection the court is of the opinion that any charges during the year 1951 would not mature until the end of the year. Therefore, any items charged during the year 1951 would not be barred by the statute of limitations." Special demurrers numbered 2, 3, 4, 5, 6 and 7 were overruled.
The plaintiff again amended the petition by adding to paragraph 6 substantially the following: That the deceased was in the fishing business as an employee at a disadvantageous location on the banks of the Wilmington River near Savannah, Georgia; that because of this location the deceased was "strapped" for operating finances; that the plaintiff was a close friend of the deceased, having known him for 28 years at that time. He furnished funds with which to operate and maintain boats which were necessary to the fishing business of the deceased and further agreed that the indebtedness would become due and payable as said parties mutually agreed; that in 1948 the deceased began dealing in real estate, building and selling houses and this is the time that the deceased asked for an extension of time on the debts because the income-tax people were pushing him for money; that because of such agreement the statute of limitation could not run on the indebtedness.
The defendant demurred generally and specially to that paragraph as amended and moved the court to disallow the same upon the following grounds: a. Because the verbal agreement sought to be established as a basis for postponing the running of the statute of limitation is too vague, uncertain and indefinite to constitute any binding contract for such purpose; b. That the verbal agreement alleged and sought to be established between the deceased and the defendant left it so that there was no obligation on the part of the defendant to pay any debts due to the plaintiff at any time unless the defendant was agreeable and willing to do so; c. That said amendment seeks to set up and establish an agreement between the parties contradictory to the original petition and statements attached thereto, wherein it appears that the original accounts were regularly paid in full by the defendant with reasonable promptness; d. That said amendment seeks to introduce an alleged agreement contradictory to an agreement alleged to have been made between said parties as shown in a previous amendment to the petition which was disallowed by the court.
The court then passed the following order: "On October 15, 1957, the court ruled on general and special demurrers filed October 29, 1956. The effect of that ruling was that all items in plaintiff's suit prior to the year 1951 were barred by the statute of limitations, but that items in the suit charged during the year 1951 was not barred by the statute of limitations.
"Subsequent to that ruling and on November 13, 1957, plaintiff filed another amendment and on November 20, 1957, defendant filed a demurrer to the amendment to plaintiff's petition.
"Considering plaintiff's petition as a whole as amended the court is of the opinion that defendant's demurrers to the amendment should be sustained and rules accordingly, which in effect bars all items in plaintiff's statement prior to the year 1951 and holds that items in the statement during the year 1951 and subsequent thereto are not barred by the statute of limitations."
The plaintiff on January 21, 1958, amended the petition by striking items totaling $354 therefrom and on August 5, 1958, added an amendment which changed the figures of the indebtedness to some extent.
On the trial the jury returned a verdict for the plaintiff for $1,287. The plaintiff dismissed his motion for a new trial, and the case is here on alleged erroneous rulings on demurrers only.
Counsel for the plaintiff correctly state that the issue before this court is whether or not the items of the account which arose prior to 1951 are, as a matter of law, barred by the statute of limitation. Code § 3-706 provides that the statute of limitation does not run on an open account until the expiration of four years. The statute of limitation is "tolled" for one year following the qualification of an executor or administrator. See Coney v. Horne, 93 Ga. 723 ( 20 S.E. 213). As has been many times said, the statute of limitation runs from the date when the account becomes due. See Adkins v. Hutchings, 79 Ga. 260 ( 4 S.E. 887). Headnote 8 of that case reads in part as follows: "All open accounts made in the conduct of a business, unless otherwise agreed expressly or by implication, become due and payable at the end of the year for which they are made, and the statute of limitations does not begin to run until they are due." The dispute in the instant case concerns the dates upon which the items of the account were due. Counsel for the defendant, in the brief, admit that "at the time of Cesaroni's death, the unpaid portion of the account was only slightly more than four years old." Counsel for the plaintiff cites Burkhalter v. Burkhalter, 35 Ga. App. 315 ( 132 S.E. 914) as authority for this court reversing the trial court because, since the Burkhalter case held that six and one-half years was not unreasonable delay, as a matter of law, the delay in the instant case was not unreasonable. Nevertheless even counsel for the plaintiff admit that the open account was more than four years old at the time of the death of the deceased.
It must be remembered that the original action on the open account had attached thereto copies of various items which were due and payable as each statement was rendered. The record shows that the last time the account was paid in full was in 1948. It seems that the whole transaction was carried on in a very unbusinesslike manner, but nevertheless when such situations must be determined in the field of law, it becomes necessary to apply the law to the facts, and in this case it is clear that the plaintiff in carrying on business let the account run for years without an understanding in writing. Code § 3-901 provides as follows: "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 someone authorized by him." It is thus seen that the plaintiff was guilty of laches in failing to have the account put in writing for a sum definite as to the accounts against which the statute of limitation had run, but on the other hand the plaintiff just drifted along and thus lost his right to plead that the statute of limitation had not run.
Counsel for the plaintiff cite Chandler v. Chandler, 62 Ga. 612, supporting the theory that a jury could negative the plea of the statute. We have read the pleadings and facts of that case including the petition and demurrers thereto and find that they are not on all fours with the case at bar. Invoking a statute or refusing to invoke a statute is a question of law for the determination of the courts. The instant case turns on whether or not the time for payment was extended. Even though the time was extended, as contended, it should have been done in writing, as we have shown hereinabove. It appears that the oral agreements were too vague to be the basis for any different legal construction other than that placed thereon by the trial court in his rulings on the demurrers. In Savannah Bag Co. v. Citizens Bank Trust Co., 40 Ga. App. 370 (2) ( 149 S.E. 710) this court said: "A contract by which a banking corporation agreed to make periodic loans of money to another from time to time within a stipulated period, without any limitation on the aggregate amount to be loaned at any one time, but that the loans would be made from time to time as the borrower's needs might require, was too indefinite and uncertain, as respects the obligation resting upon the bank, to be capable of enforcement." In Mobley v. Murray County, 178 Ga. 388 (1) ( 173 S.E. 680) that court said: "When the question is raised as to whether an action is barred by a statute of limitations, the true test to determine when the cause of action accrued is `to ascertain the time when the plaintiff could first have maintained his action to a successful result.'" So it seems that under all the law pertaining to situations like the one we have before us the trial court did not err in his rulings on the demurrers.
Judgment affirmed. Townsend and Carlisle, JJ., concur.