Francis v. Barnwell

105 S.E. 165, 25 Ga. App. 798, 1920 Ga. App. LEXIS 220

• Court: Court of Appeals of Georgia
• Decided: November 10, 1920
• Docket: 11558
• Status: Published

Opinion

Smith, J.

The petition as amended set out a cause of action against the defendant, and was not subject to general demurrer, either on the ground that, the alleged contract being a parol contract, it was contrary to the statute of frauds and could not be enforced, or on the ground that the cause of action was barred by the statute of limitations.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

The defendant demurred to the petition as amended, on the grounds: (1) No cause of action is set forth. (2) The cause of action is barred by the statute of limitations. (3) The letter alleged to have been written on September 7, 1915, is not such a writing as constitutes a new promise which renews a right of action already barred by the statute of limitations; it does not identify the debt or.any debt, and does not show that it is connected with a debt growing out of a promise made by the defendant to the plaintiff. The court overruled the demurrer.

Reuben R. Arnold, E. C. Hill, for plaintiff in error,

cited: Goodrich v. Johnson, 66 Inch 258; Farrington v. Donohoe, Ir. Rep., 1 C. L. 675; 15 L. R. A. (N. S.) 320; Squire v. Whipple, 1 Vt. 69; Hill v. Hooper, 1 Gray, 131; Shute v. Dorr, 5 Wend. 204; Abbott v. Inskip, 29 Ohio, 59; Civil Code (1910), § 3223 (3); cases cited infra distinguished.

Hill & Adams, contra,

cited: Civil Code (1910), § 3027; Hargroves v. Freeman, 12 Ga. 342; Davis v. Moody, 15 Ga. 175; Hays v. McFarlan, 32 Ga. 699; Duncan v. Pope, 47 Ga. 445; Franklin v. Ford, 13 Ga. App. 469; 5 Cyc. 647; Id. 639; Civil Code (1910), § 3223; Stowers v. Hollis, 83 Ky. 544; McLees v. Hale, 10 Wend, 426; Knowlman v. Bluett, L. R., 9 Exch. 1; 43 L. J., Exch. 29; 29 L. T. R.; Flanegan v. Garrison, 28 Ga. 136 (2), 139.