Morris v. Georgia Casualty Co. , 148 Ga. 29 ( 1918 )

Gilbert, J.

The entire case is controlled by one question of law: When did the statute of limitations begin to run as to the contract of stock subscription which is the basis of the suit? According to the view of this question which we entertain, the court properly dismissed the petition; and since the suit could not proceed to collect the subscription price of the stock, it could not, under any view of the case, benefit the plaintiffs to continue the. suit as to matters contained in the other prayers of the petition. The law in regard to the question just stated is by no means uniform in the various States, but perhaps in most of them the rule is that the statute of limitations does not begin to run until a demand or call is made upon the subscriber for payment of the stock subscription. In this State, however, the question is not an open one. It has been settled in the case of Georgia Mfg. &c. Co. v. Amis, 53 Ga. 228, cited in Weed v. Gainesville &c. R. Co., 119 Ga. 576, 592 (46 S. E. 885). In the case in 53 Ga. the subscription contract was very similar to the one before us, and was as follows: "Georgia, Coweta County: We whose names are hereto subscribed promise to pay the Georgia Mfg. & Paper Mill Co. the amount placed opposite our names respeetivelv, for stock in said company at the rate of $100 per share, par value.” Recovery on this contract was sought in a cross-action. On the trial of the ease the court charged the jury, in substance, that the statute of limitations began to run on the subscription contract from the time of its execution; and that if thev found, under the evidence, that six years had elapsed since that date, recoverv on the contract would be barred by the statute of limitations. This charge was excepted to; and on review the Supreme Court, Warner, Chief Justice, delivering the opinion, said that the charge complained of was not error, and that the right of action was barred at the expiration of six years from the date of the contract. The same view of the question has been taken by the Supreme Court of Alabama. Harris v. Gateway Land Co., 128 Ala. 652 (29 So. 611). The rule in this State is that where a contract of subscription to the capital stock of a corporation does not fix the time for payment of such subscription, nor provide that it is to be paid when called for by the corporation, and the stock has been fully subscribed and the corporation is a going concern, such subscription becomes due and payable at once; and the statute of limitations as to actions on unpaid subscriptions begins to run from their dates. The contract having been executed in May, 1909, not under seal, and this suit having been filed in September, 1916, it is obvious that a recovery on the contract can not be had, since more than six years had elapsed between the execution of the contract and the filing of the suit. There were several demurrers containing numerous grounds, among them, the grounds of general demurrer that the petition set out no cause of action, and that the suit was barred by the statute of limitations. The court ruled upon numerous grounds of the special demurrer, and finally ordered the suit dismissed. The dismissal of the suit must be affirmed, because, in our opinion, the bar of the statute settled the entire matter.

Judgment on main bill of exceptions affirmed; cross-bill dismissed.

All the Justices concur, except Fish, O. J., absent.