Small v. Cohen

• Decision Date: 10 August 1897
• Citation: 102 Ga. 248,29 S.E. 430
• Parties: SMALL . v. COHEN.
• Court: Georgia Supreme Court

29 S.E. 430

102 Ga. 248

SMALL .

v.COHEN.

Supreme Court of Georgia.

Aug. 10, 1897.

Limitations—Sale op Note— Breach of Warranty—Pleadino and Proof—Appeal. 1. Where the case made by a plaintiff's petition was that he either purchased outright from the defendant a promissory note, or at least acquired title thereto as collateral security for another indebtedness; that he took the note because of a false and fraudulent representation by the defendant that the same was a genuine and valid instrument; that, on the contrary, it was a forged and valueless paper; that for this reason he had been compelled to abandon and dismiss an action brought by him thereon, and that because of these facts he had been injured and damaged; and where the evidence for the plaintiff was sufficient to establish these allegations, but at the same time showed that the plaintiff's right of action was barred by the statute of limitations because the suit had not been brought within four years from the time the right of action accrued, —he was not, as against this defense properly presented, entitled to a verdict.

2. The foregoing is true notwithstanding the plaintiff's contentions that he had never acquired title to the note; that the action was really for damages he had sustained in being deprived of money by fraud and deceit on the part of the defendant, and that suit had been duly brought after the discovery of the fraud, and notwithstanding the fact that in support of these contentions there was some evidence tending to show that the plaintiff had never purchased or owned the note at all. The cause of action set forth in the declaration was for a breach of a covenant of warranty in the sale of the note, and the evidence last referred to was inconsistent with the allegations of the petition.

3. Where, in such a ease, the defendant, instead of filing a plea of the statute of limitations, as he should have done, moved for a nonsuit, this was not the proper practice. Inasmuch, however, as the point that the defendant did not avail himself of the proper remedy was not distinctly made in the record, or presented here, and as the result reached at the trial was substantially correct, the judgment granting a nonsuit will not be disturbed.

(Syllabus by the Court.)

Error from city court of Macon; J. P.

Ross, Judge.

Action by A. B. Small against Max Cohen. Plaintiff was nonsuited, and brings error. Affirmed.

Hardeman, Davis & Turner, for plaintiff In error.

Estes & Jones, for defendant In error.

COBB, J. Small brought suit against Cohen for damages, and upon the trial a nonsuit...