Mallin v. Spickard

125 S.E.2d 93, 105 Ga. App. 561, 1962 Ga. App. LEXIS 979

• Court: Court of Appeals of Georgia
• Decided: March 15, 1962
• Docket: 39298
• Status: Published

Opinions

Fbankum, Judge.

1. When this case was previously before this court (Mallin v. Spickard, 103 Ga. App. 562, 120 SE2d 128), it was held: “In Teasley v. Bradley, 110 Ga. 497, 504 (35 SE 782, 78 ASR 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 SE2d 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.”

Before the remittitur from this court was made the judgment of the trial court, the plaintiff tendered an amendment to his petition, which was allowed subject to demurrer. The allegation in the plaintiff’s amendment is substantially the same as an allegation found in the petition in Smith v. Early, 60 Ga. App. 506, supra, and which was construed by this court as being sufficient to allege that when the loans were made the parties intended, either expressly or impliedly, that demand for the repayment of the money loaned would not be made until sometime in the future. It was stated in Smith v. Early, 60 Ga. App. 506, 512, supra: “The amended petition having in effect alleged that the delay in demanding payment was contemplated by the contract, we do not think the judge erred in overruling the demurrer.” Each count of the petition in the instant case shows that demand for repayment of the money loaned was made within four years before the suit was filed. Therefore, this case is controlled by Smith v. Early, 60 Ga. App. 506, supra, and under the holding in that case, the plaintiff’s amendment in the instant case cured the defect which was pointed out when this case was first before this court. The court did not err in overruling the demurrer which raised the ground that the allegations of the petition as amended show that the plaintiff’s cause of action was barred by the statute of limitation.

Decided March 15, 1962. Hey man, Abram, Young, Hicks & Maloof, John H. Hicks, for plaintiff in error. John M. Sikes, contra.

2. There is no merit in the defendant’s contention that the amendment set forth a new and distinct cause of action.

Judgment affirmed.

Felton, C. J., Carlisle, P. J., BeU, Jordan, Hall, Eberhardt and Bussell, JJ., concur. Nichols, P.J., dissents.