Hinson v. Davis , 30 Ga. App. 356 ( 1923 )

ON MOTION EOR REHEARING.

Broyles, C. J.

This suit was brought upon an open account for certain goods purchased by the defendant from the plaintiff. The defendant pleaded that the account sued on was made more than four years before the filing of the suit, and, therefore, that the plaintiff’s right of action thereon was barred by the statute of limitations. The plaintiff thereupon amended its petition by alleging that the goods named in the account sued upon were sold and delivered to the defendant in accordance with certain written contracts signed by the defendant, and that the goods were received by the defendant at the prices and on the terms stated in the contracts. The written contracts were introduced in evidence, and proved to be retention-of-title contracts signed by the defendant under her seal. It is insisted by counsel for the plaintiff that as these written contracts were under seal, the plaintiff’s cause of action would not be barred within twenty years. Under all the particular facts of the case we cannot agree with this contention. A cause of action upon the written contracts under seal would not, of course, be barred until the lapse of twenty years, but this suit, as we view it, is upon an open account, and the written sealed retention-of-title contracts were executed merely to secure the payment of the open account, and created a lieu for that purpose. We are confirmed in this view by the particular language of the written contracts. We think that the account sued upon was barred by the statute of limitations, but this will not prevent the plaintiff from bringing a proper action upon the retention-of-title contracts. See, in this connection, Civil Code (1910), § 3268; Elkins v. Edwards, 8 Ga. 325; Shipp v. Davis, 78 Ga. 201 (5) (2 S. E. 549); Allen v. Glenn, 87 Ga. 414 (13 S. E. 565); Conway v. Caswell, 121 Ga. 254 (1), 257, 258 (48 S. E. 956); Ray v. Harris, 138 Ga. 432 (75 S. E. 477).

Rehearing denied.

Luke and Bloodworíh, JJ., concur.