Rose v. O'BRIEN

Court of Appeals of Georgia

Rose v. O'BRIEN

380 S.E.2d 730, 191 Ga. App. 36, 1989 Ga. App. LEXIS 465

CourtCourt of Appeals of Georgia

DecidedMarch 10, 1989

Docket77213

StatusPublished

Cited by3 cases

This text of 380 S.E.2d 730 (Rose v. O'BRIEN) 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

Rose v. O'BRIEN, 380 S.E.2d 730, 191 Ga. App. 36, 1989 Ga. App. LEXIS 465 (Ga. Ct. App. 1989).

Pincite

Opinion

Benham, Judge.

This appeal is from an order granting summary judgment to appellee on the ground that appellant’s suit was barred by the statute of limitation. Appellant brought suit against appellee to recover sums appellant contends were loaned to appellee over a period of time. Among other defenses, appellee asserted that since the last advance of money was made more than four years before appellant filed suit, the claim was barred by the period of limitation established in OCGA § 9-3-25. The trial court agreed.

1. The record in this case contains affidavits filed by the parties. In appellant’s affidavit, he averred that the parties had an agreement for a continuing loan to be made, that repayment was to be made *37 'hen appellee could or when appellant made demand for repayment reasonable time in the future, and that appellant had made a deíand within the period of limitation and less than four years before ringing suit. A reasonable time for making a demand in such a case as been held to be a time within the period of limitation. Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981). ’he portion of appellee’s affidavit pertinent to the statute of limitaion issue is an averment that the loans were made more than four ears earlier.

Decided March 10, 1989 Rehearing denied March 27, 1989. Lamb & Associates, Melody R. Hennick, Steven B. Horowitz, for appellant. Harmon, Smith & Bridges, Marian B. Wilbanks, for appellee.

As may be seen, there is no basis in the record for granting sum-nary judgment to appellee. The evidence on file presents a question >f what the agreement of the parties was with regard to the time for >aying back the loan and for making demand for repayment, as well is when demand was made. Appellee relies extensively on depositions, )ut there are none in the record and the clerk of the trial court has lertified to this court that no depositions have been filed in this case, since the evidence on file does not demand a finding that enforcenent of the alleged promise is barred by the statute of limitation, the 'rant of summary judgment on that ground was error.

2. Appellee also argues that he was entitled to summary judgnent on the ground that since the alleged promise to pay was not to De performed within a year, enforcement of the promise is barred by ¿he Statute of Frauds. OCGA § 13-5-30 (5). However, appellant has sworn that he fully performed his part of the bargain he asserts existed between the parties by advancing the money to appellee. The Statute of Frauds does “not extend to the following cases: ... (2) Where there has been performance on one side, accepted by the other in accordance with the contract; (3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31. See generally Wilson v. Whitmire, 212 Ga. 287, 290 (92 SE2d 20) (1956). If appellant’s version of the facts of this case were to be accepted by a jury, enforcement of the promise to pay would not be barred by the Statute of Frauds.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.

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Benham, Judge.

This appeal is from an order granting summary judgment to appellee on the ground that appellant’s suit was barred by the statute of limitation. Appellant brought suit against appellee to recover sums appellant contends were loaned to appellee over a period of time. Among other defenses, appellee asserted that since the last advance of money was made more than four years before appellant filed suit, the claim was barred by the period of limitation established in OCGA § 9-3-25. The trial court agreed.

1. The record in this case contains affidavits filed by the parties. In appellant’s affidavit, he averred that the parties had an agreement for a continuing loan to be made, that repayment was to be made *37 'hen appellee could or when appellant made demand for repayment reasonable time in the future, and that appellant had made a deíand within the period of limitation and less than four years before ringing suit. A reasonable time for making a demand in such a case as been held to be a time within the period of limitation. Scarboro v. Ralston Purina Co., 160 Ga. App. 576, 578 (287 SE2d 623) (1981). ’he portion of appellee’s affidavit pertinent to the statute of limitaion issue is an averment that the loans were made more than four ears earlier.

Decided March 10, 1989 Rehearing denied March 27, 1989. Lamb & Associates, Melody R. Hennick, Steven B. Horowitz, for appellant. Harmon, Smith & Bridges, Marian B. Wilbanks, for appellee.

As may be seen, there is no basis in the record for granting sum-nary judgment to appellee. The evidence on file presents a question >f what the agreement of the parties was with regard to the time for >aying back the loan and for making demand for repayment, as well is when demand was made. Appellee relies extensively on depositions, )ut there are none in the record and the clerk of the trial court has lertified to this court that no depositions have been filed in this case, since the evidence on file does not demand a finding that enforcenent of the alleged promise is barred by the statute of limitation, the 'rant of summary judgment on that ground was error.

2. Appellee also argues that he was entitled to summary judgnent on the ground that since the alleged promise to pay was not to De performed within a year, enforcement of the promise is barred by ¿he Statute of Frauds. OCGA § 13-5-30 (5). However, appellant has sworn that he fully performed his part of the bargain he asserts existed between the parties by advancing the money to appellee. The Statute of Frauds does “not extend to the following cases: ... (2) Where there has been performance on one side, accepted by the other in accordance with the contract; (3) Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance.” OCGA § 13-5-31. See generally Wilson v. Whitmire, 212 Ga. 287, 290 (92 SE2d 20) (1956). If appellant’s version of the facts of this case were to be accepted by a jury, enforcement of the promise to pay would not be barred by the Statute of Frauds.

Judgment reversed.

McMurray, P. J., and Pope, J., concur.

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380 S.E.2d 730, 191 Ga. App. 36, 1989 Ga. App. LEXIS 465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rose-v-obrien-gactapp-1989.

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