Crane v. Barry

60 Ga. 362

• Court: Supreme Court of Georgia
• Decided: January 15, 1878
• Status: Published

Opinion

Bleckley, Judge.

The partnership was dissolved in the fall of 1865. One of the partners sold out to the other. The sale was at invoice prices. It does not appear that any term of credit was agreed upon. The presumption is, that the debt created by the contract of sale was due immediately. No reason occurs to us why the seller could not have brought an action at law to recover the value of his one-half interest in the stock, at the agreed prices. It is not alleged that there were any debts due to, or from, the partnership, or that any business of the firm was left open or unsettled. The period of limitation applicable to the case was four years. Code, §2918; 49 Ga., 431. The period is the same in equity as at law. Code, §2924. The seller died; and in October, 1866, administration was granted upon his estate. Counting the four years as running from that time only, the bar attached in October, 1870. The first time the claim was brought into court, was in January, 1874. It was then presented, in a very loose and general way, by a plea which the administrator filed to an action brought against him, in the previous August, upon an award, in which action the former partner of the intestate was the plaintiff. The plea did not expressly offer the matter as a set-off, nor was any judgment prayed for the amount. It is possible, therefore, that had any objection been made to dismissing the action, the pendency of the plea would not have brought the case within section 2907 of tho Code, restricting the right of dismissing. Be this as it may, no objections seem to have been presented. The action was dismissed in February, .1877, and the plea went out with it. The bill was filed in July thereafter; and the administrator now wants, it would seem, to treat the bill as a renewed case, under section 2932 of the Code. Rut that section aj>plies to plaintiffs who, after non-suit, discontinuance, or dismissal, bring a second action for the same cause. Here the administrator was &&- fendant in the first action. His plea was not a “ case,” and the bill, strictly speaking, is not a renewed case. But a sufficient ground for the decision we make is, that the matter of the bill was barred' long before the plea was filed. The court committed no error in sustaining the demurrer and dismissing the bill.

Cited in the argument: acts of 1869, p. 133 , 49 Ga., 431; Code, §§2918, 2907, 3465 ; 45 Ga., 509 ; 37 Ib., 365.

Judgment affirmed.