Lambert v. Doyle

• Decision Date: 07 February 1903
• Citation: 43 S.E. 416,117 Ga. 81
• Parties: LAMBERT v. DOYLE.
• Court: Georgia Supreme Court

43 S.E. 416

117 Ga. 81

LAMBERT v. DOYLE.

Supreme Court of Georgia

February 7, 1903

Syllabus by the Court.

1. In a suit on an account, to which the plea of the statute of limitations has been filed, a letter from the defendant to the attorney of the plaintiff, stating: "It will be absolutely impossible for me to give you anything before after the 1st of June. I will send you check for something then. Hope to be able to clear your acct. quick,"--is not sufficient to relieve the bar of the statute of limitations.

2. The written acknowledgment or new promise to pay must clearly and distinctly identify the particular account, note, demand, or chose in action to be renewed; and there must also be therein either an express promise to pay the claim, or such an absolute and unqualified admission of it as an existing indebtedness as that the law would imply a promise to pay the same. Kelly v. Strouse, 43 S.E. 280, 116 Ga. 872.

3. Where a plea of the statute of limitations is filed, and the defendant, though not represented at the trial, within due time presents a bill of exceptions containing a correct statement of the evidence, and assigns as error that the court directed a verdict for the plaintiff, a new trial will be ordered, when it appears that the account sued on was in fact barred, and had not been revived by a new promise or written acknowledgment. Kelly v. Strouse, 43 S.E. 280, 116 Ga. 872.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by M. J. Doyle against J. A. Lambert. Judgment for plaintiff, and defendant brings error. Reversed.

S.D. Johnson, for plaintiff in error.

W. B. Stovall, for defendant in error.

PER CURIAM.

Judgment reversed.

LUMPKIN, P.J., absent on account of sickness.