Watkins v. Harris , 83 Ga. 680 ( 1889 )

Bleckley, Chief .Justice.

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 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 fifty cents not. found in the former, and an entry of thirty-one dollars where the former has an entry of one dollar.

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 the handwriting of the debtor, or if the handwriting of another, signed by the debtor, or by some one duly authorized. On this question we agree with Mr. Justice Craweord, and differ with the majority of the court, in the case of Green v. Juhan, 63 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. This means by the debtor himself, and not by his agent. Hyde v. Johnson, 2 Bing. (N. C.) 776; Wood on Lim. 217. Doubtless the agent’s act would suffice if his authority were proved by writing. (Code, §2182. But the whole matter as to a new promise might as well be left to the testimony of witnesses, as the agent’s authority to make an unsigned entry. A signed entry or instrument executed in the debtor’s presence and by his verbal permission or direction, might be sufficient. Cunningham, v. Lamar, 51 Ga. 574. It should not be overlooked that a statute requiring a new promise to be evidenced by writing is not a statute of limitations. It is a law of evidence, having for its object the avoidance of the un certainties to which parol evidence is exposed. Shumate v. Williams 34 Ga. 245. This last authority shows, also, that it makes no difference whether the promise involved was made before or after the statute bar attached on the original contract. We are quite unable to concur in the reasoning of Chief Justice Jackson, in Green v. Juhan, supra, that because in certain cases, such as Wright v. Bessman, 55 Ga. 187, Dobson v. Dickson, 62 Ga. 639, and Ryal v. Morris, 68 Ga. 834, the court has decided that without written authority the creditor could not be the agent of the debtor to enter a credit from which a new promise would arise, the inference might be drawn that another person could be such agent. The cases on this subject ruled upon the facts as they were presented, and did not commit the court to any doctrine whatever upon a different state of facts. It is often, indeed nearly always, desirable to confine the judgment of a reviewing court to the necessary questions raised by the state of facts before it in the given case. This we shall do in the present case in framing the head-note to this opinion.

The plaintiff below, the plea of the statute of limitations being interposed, was not entitled to recover on the evidence submitted to the jury, and the court erred in not granting a new trial. Judgment reversed.