Seaboard Air Line Ry. Co. v. Averett

• Decision Date: 27 February 1925
• Docket Number: 4357.
• Citation: 127 S.E. 217,159 Ga. 876
• Parties: SEABOARD AIR LINE RY. CO. v. AVERETT ET AL.
• Court: Georgia Supreme Court

127 S.E. 217

159 Ga. 876

SEABOARD AIR LINE RY. CO. v. AVERETT ET AL.

No. 4357.

Supreme Court of Georgia

February 27, 1925

Syllabus by the Court.

A bill of lading signed by both parties to the contract is a simple contract in writing within the terms of section 4361 of the Civil Code of 1910; and an action for damages arising upon the breach of this contract may be brought within six years after such breach.

Certiorari from Court of Appeals.

Action by C. C. Averett and another, as executors of E. M. Chapman deceased, against the Seaboard Air Line Railway Company. Judgment for defendant was reversed by the Court of Appeals (32 Ga.App. 124, 122 S.E. 625), and defendant brings certiorari. Affirmed.

W. W Dykes, of Americus, for plaintiff in error.

Strozier & Deaver, of Macon, for defendants in error.

RUSSELL C.J.

C. C Averett and J. E. Chapman, as executors of E. M. Chapman deceased, brought a suit against the Seaboard Air Line Railway Company. The petition alleged that the defendant was indebted to petitioners in the sum of $365.39, besides interest; that on the 11th day of July, 1917, the deceased delivered to defendant for carriage, in good condition, 504 crates of peaches; that a bill of lading evidencing the contract of carriage was issued by the defendant carrier, a copy of the bill of lading being attached to the petition; that the defendant breached and failed to perform its contract of carriage, because the peaches were not transported within a reasonable time, and consequently some of them decayed; by reason of which the remainder of the shipment could only be sold for $894.61, instead of the market price of $1,260. The suit was for the loss, the difference amounting to $365.39. The superior court dismissed the petition upon the ground that the action showed upon its face that it was barred by the statute of limitations. The Court of Appeals reversed that judgment, and a certiorari was granted by this court.

The question raised by demurrer is whether a suit brought for damages arising upon the breach of the contract embodied in the bill of lading can be maintained within six years, or whether such a claim is barred after the expiration of four years. The Court of Appeals held that this action could be brought at any time within six years; and after examination, upon certiorari, which we thought proper to grant in view of the gravity and importance of the question involved, we are of the opinion that the decision and judgment of the Court of Appeals was correct. There are three sections of the Civil Code of 1910 which bear upon the solution of the question, §§ 4361, 4362, and 4368. Section 4361 provides that--

"All actions upon promissory notes, bills of exchange, or other simple contracts in writing shall be brought within six years after the same become due and payable."

Section 4362 declares that--

"All actions upon open account, or for the breach of any contract not under the hand of the party sought to be charged, or upon any implied assumpsit or undertaking, shall be brought within four years after the right of action accrues."

And section 4368 provides:

"All other actions upon contracts express or implied, not hereinbefore provided for, must be brought within four years from the accrual of the right of action."

By an act approved December 13, 1809 (Cobb's Dig. p. 566), the General Assembly, in view of doubts existing "as to the period at which bonds, notes, and open accounts, shall be limited, in consequence of the word specialties, and other indefinite expressions, being used in the second section of the aforesaid act," declared:

"That * * * all actions, founded on bonds or instruments under seal, shall be commenced and sued within twenty years after after the said bond or other instrument shall become due, and not after; and that all actions founded upon notes, and other acknowledgements, under the hand of the party, shall be commenced within six years from the time such note or acknowledgement shall become due, and not after; and that all actions founded upon open account shall be commenced within four years from the time such account accrued, and not after."

This act was amendatory of an act passed December 8, 1806. By the act of March 6, 1856 (Acts 1855-56, p. 234), the following provisions for limiting actions were fixed:

"Sec. IX. That all suits for the recovery of promissory notes or other acknowledgments of indebtedness, under the hand of the party, shall be brought within six years after such promissory notes or acknowledgements of indebtedness became due, and not after.

Sec. X. All suits for the recovery of open accounts or damages for the breach of any contract not under the hand or under the hand and seal of the party sought to be charged, shall be brought within four years next, after the right of action accrues, and not after.

Sec. XI. All suits brought upon bonds or other instruments, under seal, shall be brought within twenty years after the right of action accrues, and not after, but no instrument shall be considered sealed unless so recited in the body of the instrument."

The changes effected by the passage of the act of 1856, supra, were as follows: To the portion of the section of the act of 1809 relating to those actions where suit must be commenced within six years, the words "of indebtedness" were inserted after the word "acknowledgments" in both instances where the word "acknowledgments" had previously stood alone. And to that portion of the act of 1809 relating to suits upon accounts was added, in section 10 of the act of 1856, a provision for "damages for the breach of any contract not under the hand or under the hand and seal of the party sought to be charged." When the codifiers, in 1863, embodied the provisions of the act of 1856 in the Code, section 9 was so changed that, instead of reading, "All suits for the recovery of promissory notes or other acknowledgments of indebtedness, under the hand of the party, shall be brought within six years after such promissory notes or acknowledgments of indebtedness became due, and not after," the Code, § 2858, was, "All actions upon promissory notes, bills of exchange or other simple contract in writing, shall be brought within six years after the same becomes due and payable." It will be noted that section 9 of the act of 1856 was confined to promissory notes or other acknowledgments of indebtedness; whereas, the Code section extends the provisions of this legislation to bills of exchange, or other simple contracts in writing. The question involved in this case imposes on us the duty of deciding whether a bill of lading such as that in this case is a simple contract within the terms of section 4362. The omission of the phrase, "other acknowledgments of indebtedness, under the hand of the party," is not without significance, and the substitution of the far more general term, "other simple contracts in writing," denotes a purpose to extend the provisions of the act beyond mere acknowledgments of indebtedness of the same character as promissory notes. We think also that the inclusion, both in section 10 of the original act of 1856, supra, as well as the continued use of the expression in section 4362 of the Code of 1910, that actions for damages for the breach of any contract not under the hand of the party sought to be charged shall be brought within four years, indicates clearly that it was the legislative intention, by confining contracts not in writing to the class of cases which must be sued on within four years, to place contracts under the hand of a contracting party, and which are in writing, in the six-year class.

We are aware that it has been held that an...