Gentry v. Walker , 1897 Ga. LEXIS 172 ( 1897 )

Lumpkin, P. J.

An action was brought by Walker against Gentry on a promissory note due November 1, 1885. The defendant pleaded that the action had been prematurely begun, and set up a written agreement between himself and the plaintiff, purporting to have been founded upon a valuable consideration, from which it appeared that the time for payment had been extended to November 6, 1895. The action was brought January 1, 1895. The court below struck the plea, and the defendant excepted.

It is true that at the time of the trial the note, even finder the terms of the written agreement, was past due; ■ This fact, however, does not furnish a proper test for determining whether or not the suit was prematurely brought. On the contrary, this question must be decided with reference to the date upon which the plaintiff’s petition was filed. According to the allegations of the defendant’s plea, there had been a novation of the original agreement between himself and the plaintiff', embraced in the note sued on, the effect of which was to postpone payment until November 6, 1895. This'the defendant offered to show ■ by written evidence, actually attaching to his plea a copy of án instrument which, if genuine, would unquestionably sustain his contention that he was under no. obligation to tender payment of the note on or before the date upon which the plaintiff’s action was commenced. We are clearly of the opinion that the trial judge improperly struct this plea, and accordingly we remand the case for another hearing.

Judgment reversed.

All the Justices concurring.