Mallin v. Spickard

Court of Appeals of Georgia

Mallin v. Spickard

120 S.E.2d 128, 103 Ga. App. 562, 1961 Ga. App. LEXIS 1001

CourtCourt of Appeals of Georgia

DecidedApril 25, 1961

Docket38742

StatusPublished

Cited by9 cases

This text of 120 S.E.2d 128 (Mallin v. Spickard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mallin v. Spickard, 120 S.E.2d 128, 103 Ga. App. 562, 1961 Ga. App. LEXIS 1001 (Ga. Ct. App. 1961).

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Opinions

Nichols, Judge.

The sole contention raised by the plaintiff in error, the defendant in the court below, is that each count of the petition is barred by the statute of limitation and that his demurrer raising such issue should have been sustained.

The statute of limitation based on an oral contract is four years from the date the action accrued (Code § 3-706), and the question presented in this case is when the action accrued. The [563]*563defendant contends in support of his demurrers that the action accrued on the dates the moneys were loaned. If such contention is correct, since the action was not filed until more than four years after the dates when such moneys were allegedly advanced or loaned, the demurrers raising the question as to the statute of limitation should have been sustained inasmuch as such facts are shown on the face of the petition. See Howell v. Seigler, 89 Ga. App. 221 (1) (78 S. E. 2d 874), and citations.

In Teasley v. Bradley, 110 Ga. 497, 504 (35 S. E. 782, 78 Am. St. Rep. 113), it was said: “When money is loaned and there is no agreement as to the time of repayment, the amount loaned is in law due immediately, and the statute of limitations begins to run at once in favor of the borrower.” In that case the Supreme Court, was dealing with money loaned without a written contract and without any definite time being agreed upon for repayment. The present case, in each count, alleged that the money was loaned and that the defendant was to repay it upon demand, and there was no allegation that the plaintiff would not demand the repayment until some future time. (See Smith v. Early, 60 Ga. App. 506, 3 S. E. 2d 913). The petition shows on its face that the action was barred since more than four years had elapsed between the time the money was loaned and the action brought. The trial court erred in overruling the defendant’s demurrers based on the statute of limitation.

Judgment reversed.

All the Judges concur except Felton, C. J., and Bell, J., who dissent.

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Nichols, Judge.

The sole contention raised by the plaintiff in error, the defendant in the court below, is that each count of the petition is barred by the statute of limitation and that his demurrer raising such issue should have been sustained.

The statute of limitation based on an oral contract is four years from the date the action accrued (Code § 3-706), and the question presented in this case is when the action accrued. The [563]*563defendant contends in support of his demurrers that the action accrued on the dates the moneys were loaned. If such contention is correct, since the action was not filed until more than four years after the dates when such moneys were allegedly advanced or loaned, the demurrers raising the question as to the statute of limitation should have been sustained inasmuch as such facts are shown on the face of the petition. See Howell v. Seigler, 89 Ga. App. 221 (1) (78 S. E. 2d 874), and citations.

In Teasley v. Bradley, 110 Ga. 497, 504 (35 S. E. 782, 78 Am. St. Rep. 113), it was said: “When money is loaned and there is no agreement as to the time of repayment, the amount loaned is in law due immediately, and the statute of limitations begins to run at once in favor of the borrower.” In that case the Supreme Court, was dealing with money loaned without a written contract and without any definite time being agreed upon for repayment. The present case, in each count, alleged that the money was loaned and that the defendant was to repay it upon demand, and there was no allegation that the plaintiff would not demand the repayment until some future time. (See Smith v. Early, 60 Ga. App. 506, 3 S. E. 2d 913). The petition shows on its face that the action was barred since more than four years had elapsed between the time the money was loaned and the action brought. The trial court erred in overruling the defendant’s demurrers based on the statute of limitation.

Judgment reversed.

All the Judges concur except Felton, C. J., and Bell, J., who dissent.

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120 S.E.2d 128, 103 Ga. App. 562, 1961 Ga. App. LEXIS 1001, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mallin-v-spickard-gactapp-1961.

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