Watkins v. Harris

• Court: Georgia Supreme Court
• Writing for the Court: Foster & Lamar, for plaintiff in error
• Citation: Watkins v. Harris, 83 Ga. 680, 10 S.E. 447 (Ga. 1889)
• Decision Date: 18 November 1889
• Parties: Watkins v. Harris.

10 S.E. 447

(83 Ga. 680)

Watkins

v.Harris.

Supreme Court of Georgia.

Nov. 18, 1889.

Limitation op Actions—New Promise.

The note in suit being barred on its face by the statute of limitations, a new promise will not be implied from unsigned credits entered upon a separate paper sewed to the note, and, according to the evidence of the creditor, handed to him in that condition by the administratrix of the maker; it not appearing that any of the credits are in her handwriting. Nor will it vary the matter that some corresponding credits, not specially pointed out, were previously entered upon another paper— not now produced, but then attached to the note— by the daughter, and some by the granddaughter, of the administratrix, under her orders or direction. The construction of sections 2934 and 2935 of the Code by a majority of the court in Green v. Juhan, 66 Ga. 531, disapproved.¹

(Syllabus by the Court.)

Error from city court, Richmond county; Eve, Judge. Foster & Lamar, for plaintiff in error.

Bleckley, C. J. As we understand the record, none of the credits relied upon to take the note out of the statute of limitations were proved by entries made upon the note itself, but the entries actually produced to the court as evidence were on a piece of paper attached, by sewing it, to the note, which, according to the evidence of the creditor, was handed to him in that condition by the administratrix, the defendant below. There was no other evidence as to how the note and the paper came to be attached, and no evidence at all as to whose handwriting the credits appearing upon the paper were in. There was evidence that some credits not identified specifically were entered on some paper not produced, a part of them by the daughter, and a part by the granddaughter of the administratrix, but they could count for nothing, as the original writing setting them forth was not submitted to the jury. It seems that the daughter and granddaughter acted by the direction of the administratrix, but whether they wrote in her presence or not does not appear. The list of credits as annexed to the declaration and that contained in the brief of evidence do not correspond. They differ in the order of some of the entries, and the latter has an entry of 50 cents not found in the former, and an entry of $31 where the former has an entry of $1. The Code, §§ 2934, 2935, plainly intends that a new promise implied from a credit entered upon an evidence of debt shall count for nothing against the statute of limitations, unless it is in the handwriting of the debtor, or, if in the handwriting of another, signed by the debtor, or by some one duly authorized. On this question we agree with Mr. Justice Crawford, and differ with the majority of the court, in the case of Green v. Juhan, 66 Ga.531. The evils of parol evidence, against which the Code intended to guard, were realized in that very case. The parol evidence was conflicting, and so the new promise implied from the credit was not established by writing, but by the opinion of the jury, upon the more or less credibility of the respective witnesses. We think both the letter and the policy of the Code are better sustained by requiring an unsigned credit to be in the handwriting of the debtor. Section 2935 says a payment entered upon an evidence of debt by the debtor is equivalent to a new promise to pay....