Leonard v. Cesaroni

• Decision Date: 10 November 1958
• Docket Number: No. 37417,No. 2,37417,2
• Citation: 98 Ga.App. 715,106 S.E.2d 362
• Parties: E. A. LEONARD v. M. J. CESARONI, Executor
• Court: Georgia Court of Appeals

Page 362

106 S.E.2d 362

98 Ga.App. 715

E. A. LEONARD v. M. J. CESARONI, Executor.

No. 37417.

Court of Appeals of Georgia, Division No. 2.

Nov. 10, 1958.

Rehearing Denied Dec. 1, 1958.

Syllabus by the Court

In order to determine whether an action is barred by the statute of limitation, the true test is to ascertain when the action could have been first maintained in order to bring the cause to a successful conclusion.

Edward A. Leonard brought an action against Michael John Cesaroni as executor of the will of Joseph A. Cesaroni. The suit was on an open account alleged to have been owing by the deceased to the plaintiff. Demurrers were filed to the petition. The petition was twice amended but demurrers to the amendment were sustained by the court and both amendments were stricken. It is to the orders sustaining the demurrers that the case is here for review.

Paragraph 1 of the petition alleges that the defendant is the duly qualified executor of the will of Joseph A. Cesaroni, who died testate August 3, 1952. Paragraph 2 alleges that the plaintiff qualified as executor October 27, 1952. Paragraph 3 alleges that the defendant is indebted to the plaintiff on a running open account in the amount of $7,685.67 as evidenced by statements attached as exhibits and made a part of the petition. Paragraph 4 alleges that the defendant transacted a great deal of business of the deceased during the lifetime of the deceased and that it has been most difficult for the petitioner to distinguish whether or not such transactions were for the deceased or for the defendant personally; that on August 31, 1956, the plaintiff filed suit against the defendant for $7,835.67 and found out later that one job amounting to $150 was for Michael John Cesaroni individually and that amount was deducted and the case was dismissed without prejudice on October 15, 1956, and has been brought again under Code, § 3-808 permitting and providing that the suit shall stand on the same footing as the original suit. Paragraph 5 alleges that the indebtedness is just, due, and unpaid and that demand has been made and payment refused.

The defendant filed a plea and answer as follows: Paragraph 1 admits paragraph 1 of the plaintiff's petition.

For further plea and answer the defendant shows the death of Joseph A. Cesaroni on August 30, 1952; that letters testamentary issued to this defendant; that he qualified as executor on October 27, 1952; that deducting the time from the death of the testator to the time the letters testamentary were issued and the twelve months thereafter from which the defendant was relieved from suit, the right of action of the plaintiff on the cause sued upon accrued more than four years before the commencement of this suit as to each and every item of the account attached to and made a part of the petition, beginning November 1, 1942, through March 15, 1951 inclusive and therefore is barred by the statute of limitation.

The defendant also filed a general demurrer to the petition and filed several special demurrers which allege as follows: Paragraph 1 demurs to each and every item of the account attached to and made a part of paragraph 2 of the plaintiff's petition covering the period November 1, 1942 through March 15, 1951 inclusive and moves to strike the same because the statute of limitation has run thereon. Paragraph 2 demurs specially because one item dated April 1, 1952 'for work done on Monahan House '2' because the petition fails to disclose the owner of the property, what improvements were made, and for whom said work was done. Paragraph 3 demurs specially to an item of account dated August 21, 1951, upon the ground that the petition fails to show where or upon whose property the work was alleged to have been done. Paragraph 4 demurs specially to an item of account dated October 15, 1951, upon the ground that the petition fails to show the location of the lot, the owner of the property, and the improvements alleged to have been done. Paragraph 5 demurs specially to the item of account dated December 1, 1951, upon the ground that the petition fails to show the location of the lot, the name of the owner of the property, and the work alleged to have been done. Paragraph 6 demurs specially to the item of account dated March 10, 1952, upon the ground that the petition fails to show the location of the new building, the owner of the property, and the work alleged to have bee done. Paragraph 7 demurs specially to the items of account dated March [?], 1952, to November 20, 1954, of the plaintiff's petition for the reason that there is not shown thereon the name of the owner of the property and improvements thereon for whom said work was alleged to have been done.

The plaintiff then amended the petition by adding paragraph 6 which alleged that the deceased began trading with the plaintiff in November 1942 and continued as a customer until his death on August 30, 1952; that after the first purchase by the deceased he advised the plaintiff that he wishes to continue dealing with the plaintiff but that he would need more time to pay his accounts in the future, whereupon the plaintiff agreed to let the deceased pay the accouts at his convenience by mutual agreement. Then follows a list of indebtedness incurred up to July 27, 1945. This paragraph of the petition further alleges that as the deceased began to prosper in his business the Federal Government stepped in and began investigation for tax purposes, whereupon the deceased approached the plaintiff and asked him for a moratorium of his indebtedness until his affairs with the Federal Government had been straightened out. To this the plaintiff agreed and made no demand for the payment of the indebtedness and did not present bills; that when the defendant became executor of the will of the deceased, in the latter part of 1952, the defendant asked the plaintiff for and received an extension of time in which to pay the indebtedness due the plaintiff, and the defendant acknowledged the debt to be approximately $10,000; the defendant wanted the indebtedness extended until the home of the deceased was sold and that the house was sold on March 19, 1956. This amendment also added count 2 regarding which counsel for the plaintiff in the court below (the plaintiff in error here) states in the brief: 'The amendment also added count 2 to the petition, but there is no issue here concerning that count or the rulings thereon.'

The defendant filed general demurrers to paragraph 6 as well as to count 2 (count 2 not here being considered). The court sustained the general demurrers to paragraph 6 and then ruled on the demurrers filed October 29, 1956, as follows: The general demurrer was overruled; special demurrer 1 was sustained 'except as to 'through March 15, 1951'. In this connection the court is of the opinion that any charges during the year 1951 would not mature until the end of the year. Therefore, any items charged during the year 1951 would not be barred by the statute of limitation.' Special demurrers numbered 2, 3, 4, 5, 6 and 7 were overruled.

The plaintiff again amended the petition by adding to paragraph 6 substantially the following: That the deceased was in the fishing business as an employee at a disadvantageous location on the banks of the Wilmington River near Savannah, Georgia; that because of this location the deceased was 'strapped' for operating finances; that the plaintiff was a close friend of the deceased, having known him for 28 years at that time. He furnished funds with which to operate and maintain boats which were necessary to the fishing business of the deceased and further agreed that the indebtedness would become due and payable as said parties mutually agreed; that in 1948 the deceased began dealing in real estate, building and selling...