Northington v. Granade
| Citation | 45 S.E. 447,118 Ga. 584 |
| Parties | NORTHINGTON v. GRANADE. |
| Decision Date | 14 August 1903 |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The plea of the defendant, relating to an account for merchandise which the plaintiff had contracted, was, properly construed a plea of set-off, and not of payment, and did not show such a course of mutual dealings between the parties as to prevent the statute of limitations from applying to those items of the account which were made more than four years prior to the filing of the plea.
2. Although a defendant may, in his plea, have admitted a prima facie case for the plaintiff, yet, where he allows the plaintiff to introduce evidence to make out his case, without calling attention to the admission and claiming the right accruing therefrom, he will be held to have waived his right to open and conclude the argument.
3. An admission by the holder of the legal title to land that he had verbally authorized another to sell the land will operate as an estoppel in favor of one claiming under the person to whom the authority was given. In the trial of an action on a promissory note the consideration of which was a promise to convey the land which the plaintiff had been authorized to sell, evidence of such an admission is competent, whether contained in the testimony of the party making the admission or in that of the maker of the note.
4. The evidence warranted the verdict.
Error from City Court of Sandersville; P. R. Taliaferro, Judge.
Action by A. R. Granade against W. C. Northington. Judgment for plaintiff, and defendant brings error. Affirmed.
Rawlings & Howard and W. E. Armistead, for plaintiff in error.
Evans & Evans, for defendant in error.
Mrs Granade sued Northington on a promissory note for $85, the consideration of which was the interest of plaintiff and her sister, Mrs. Dorsey, in certain land conveyed to their mother, as well as their interest in their grandfather's estate. The suit was filed April 8, 1902. The defendant, in his plea, admitted the execution of the note, but pleaded that the consideration of the note had partially failed by reason of the fact that the plaintiff did not own the interest of her sister in the land referred to in the note and hence had no right to convey the same. It was further pleaded that the note had been fully paid off and discharged by the sale of merchandise to plaintiff, for which she was due defendant at the date of the filing of the suit the sum of $88.72, besides interest. Attached to the plea was an account showing items of merchandise claimed to have been bought from defendant by plaintiff, beginning in the summer of 1889, and extending over a period of several years, there being only two items which were alleged to have been bought within a period of less than four years prior to the filing of the plea. The court struck all of the portion of the plea last above referred to, except the items just mentioned, on the ground that the items of indebtedness appeared on the face of the plea to be barred by the statute of limitations, and exceptions pendente lite were filed. A verdict for $85 principal, besides interest, having been returned in favor of the plaintiff, the defendant filed a motion for a new trial. This motion was overruled, and the defendant excepted.
1. It is contended that the court improperly struck the plea relating to the account, because this plea was really one of payment, and not of set-off, as the court construed it; and because it showed mutual accounts between the parties, and the statute of limitations would not begin to run until the date of the last item. While it is alleged that the note had been paid off and discharged by the sale of merchandise, it is also distinctly alleged in the plea that the items of account set out were, "at the date of the filing of this suit by the plaintiff against the defendant, due to him." In view of this allegation the plea was manifestly one of set-off,...
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