McCluskey v. Still

• Decision Date: 19 September 1924
• Docket Number: 14853.
• Parties: MCCLUSKEY v. STILL.
• Court: Georgia Court of Appeals

124 S.E. 548

32 Ga.App. 641

MCCLUSKEY v. STILL.

No. 14853.

Court of Appeals of Georgia, Second Division

September 19, 1924

Syllabus by the Court.

Although it may be a custom for running accounts to fall due and become payable on January 1 following (Civil Code 1910, § 3435), yet, for the purpose of foreclosing a lien arising out of such an account, the account will be regarded as falling due upon "the delivery of the last item constituting a part of the running account covered by the contract." Park's Ann. Civ. Code 1914, § 3353 (2a); Dunning v Stovall, 30 Ga. 444; Calhoun Brick Co. v. Patillo Lumber Co., 10 Ga.App. 181 (2), 73 S.E. 23. A lien cannot be asserted in a suit brought on a running account more than 12 months after the delivery of the last item constituting a part of the running account upon August 27 although the suit is brought within 12 months after the first of January following, from which date, under the custom, the account begins to draw interest.

This being a suit to recover for materials alleged to have been furnished to the defendant, and used to improve the defendant's real estate, and to foreclose a materialman's lien thereon, and there being evidence authorizing the inference that the defendant admitted the indebtedness after the materials had been used, that the defendant ordered some of the materials over the telephone that some of the materials had been ordered by the defendant's husband, and that some of the materials had been hauled by the defendant's teams, that the defendant's husband, in ordering the materials, was the defendant's agent, the general verdict for the plaintiff finding the defendant liable, was authorized.

It appearing that the lien was recorded as required by law, within three months after the furnishing of the material (Civil Code 1910, § 3353), but it appearing that the suit was not filed within 12 months from the maturing of the contract, under the ruling in paragraph 1 above, the verdict, in so far as it establishes a lien upon the defendant's property, is unauthorized.

The plaintiff having alleged in his petition that the contract was completed on August 27, 1920 (which allegation was not stricken by amendment), and it appearing from the evidence that the contract sued on was a running account under which the last item furnished was on said date, it was error prejudicial to the defendant for the court, over proper objection, to admit in...