Sedwick v. Gerding

• Decision Date: 31 July 1875
• Citation: 55 Ga. 265
• Parties: John Sedwick, assignee, for use, etc.. plaintiff in error. v. Julius Gerding, defendant in error.
• Court: Georgia Supreme Court

55 Ga. 265

John Sedwick, assignee, for use, etc.. plaintiff in error. v. Julius Gerding, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

[Jackson, Judge, did not preside in this case.]

Statute of limitations. Removal from the state. Before Judge Bartlett. Putnam Superior Court. September Term, 1874.

The account sued on in this case was made in September and October, 1867.

For the remaining facts, see the decision.

James L. Brown; J. W. Hudson, for plaintiff in error.

No appearance for defendant.

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant on an open account for the sum of $447 97 with a *bill of particulars annexed thereto. The action was commenced on the 31st December, 1872. At the Septem-ber term of the court,. 1874, the plaintiff amended his declaration by declaring on a letter addressed by the defendant to the parties with whom the account was originally made, as follows: "Gentlemen—In reply to your favor of the 22d instant, you will please to withdraw your draft of $314 37 upon me, as I cannot pay for the present. As soon as I have the money I shall remit." This letter was dated 21st May, 1868. The defendant pleaded payment and the statute of limitations in bar of the plaintiff\'s action. The jury, under the charge of the court, found a verdict for the defendant. The plaintiff made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the plaintiff excepted. But two grounds of error alleged in the motion, were insisted on here: First, that the court erred in charging the jury, that the letter of the 21st of May, 1868, did not take the debt out of the operation of the statutory bar of four years, and extend it to six years. Second, that the court erred in charging the jury in relation to the defendant\'s absence from the state, in view of the evidence contained in the record.

1st. The draft referred to in the defendant's letter did not purport to be a draft given in liquidation of the account sued on, or as having any connection with it; besides, the letter did not state for what consideration the draft was drawn, or whether there was any consideration for it, nor when the same was payable. The statement in the letter was too indefinite to take the account sued on out of the operation of the statutory bar of four years, or to authorize the plaintiff to maintain a suit thereon, even if there had been any consideration...