Burkhalter v. Burkhalter

• Citation: 132 S.E. 914,35 Ga.App. 315
• Decision Date: 20 April 1926
• Docket Number: (No. 16843.)
• Parties: BURKHALTER. v. BURKHALTER.
• Court: United States Court of Appeals (Georgia)

35 Ga.App. 315

132 S.E. 914

BURKHALTER.

v.BURKHALTER.

(No. 16843.)

Court of Appeals of Georgia, Division No. 2.

April 20, 1926.

(Syllabus by Editorial Staff.)

Error from City Court of Reidsville; C. L. Cowart, Judge.

Suit by Louvenia Burkhalter against J. L. Burkhalter. Judgment for plaintiff, and defendant brings error. Affirmed.

B. D. Dubberly and J. T. Grice, both of Glennville, for plaintiff in error.

P. M. Anderson, of Claxton, for defendant in error.

Syllabus Opinion by the Court.

BELL., J. [1, 2] 1. Where a general deposit of money in a bank, to bear interest at a specified rate from date, was not evidenced by the usual certificate of deposit or other writing fixing the time of payment, the statute of limitations did not begin to run in favor of the bank until demand for payment; "such demand not being delayed until the right had become stale." In such a case the claim could not be said to be barred as a matter of law, where the demand was made 6 1/2 years after the date of the deposit. Munnerlyn v. Augusta Savings Bank, 88 Ga. 333 (3), 14 S. E. 554, 30 Am. St. Rep. 150.

2. Where a person having money on deposit in a bank under the terms indicated above agreed with an individual to withdraw the money from the bank and to lend it to him upon the same terms and conditions (except as to the rate of interest) under which it had been held by the bank, and the money was withdrawn and loaned accordingly, the individual was substituted for the bank as a debtor (McGregor v. Battle, 128 Ga. 577, 580, 58 S. E. 28, 13 L. R. A. [N. S.] 185; Luthersville Banking Co. v. Hopkins, 12 Ga. App. 488, 77 S. E. 589), and the rule as to the operation of the statute of limitations, which would have obtained as between the depositor and the bank, was applicable as between the parties to the loan agreement. Compare Patterson v. Blanchard, 98 Ga. 518, 25 S. E. 572.

3. Since, under the other facts appearing, if there had been no substitution of debtors, and the suit had been brought against the bank, it could not have been said as a matter of law that the claim was barred, the debt against the substituted individual, contracted upon the same terms as to maturity, cannot be held barred as a matter of law, where a demand for its payment was made within 6 1/2 years from the date of the loan, and suit was brought to recover the amount within 4 years after the demand.

4. Under the above rulings, the petition was not subject to the demurrer invoking the statute of limitations. The facts in this case are to be distinguished from transactions involving notes payable on demand (see Civil Code 1910, §§ 3434, 4292; Hobbs v. Citizens Bank of Wrens, 32 Ga. App. 522, 124 S. E. 72), and also from loans under oral agreements silent as to the matter of maturity. See Chandler v. Chandler, 62 Ga. 612; Teasley v. Bradley, 110 Ga. 497 (3), 35 S. E. 782, 78 Am. St. Rep. 113. Nor do the facts of the instant record require a decision as to when the statute of limitations would begin to run against a loan to an individual, the terms of which are oral and provide for payment on demand, but as to which there is not, as here, a stipulation that the money is received under the same terms and conditions (except as to interest) on which money is received by a bank on general deposit. See Patterson v. Blanchard, supra; Sweet v. Irish, 36 Barb. (N. Y.) 467, 32 L. R. A. (N. S.) 493, note; In re Fallon. 110 Minn. 213 (2), 124 N. W. 994, 32 L. It. A. (N. S.) 486, 136 Am. St. Rep. 464.

5. The petition alleges that the loan to the defendant was made "the first part of April, 1918, " the exact date not being stated. Held, the petition was not, on account of this omission, subject to demurrer upon the ground that it failed to show when the loan was made, "thus failing to furnish defendant with an itemized statement as required by law." Assuming that the exact date should have been alleged (but see Bland v. Strange, 52 Ga. 94; Busby v. Marshall, 125 Ga. 645 [1], 54 S. E....