Carnes v. Bank of Jonesboro , 58 Ga. App. 193 ( 1938 )

Felton, J.,

concurring specially. The Bank of Jonesboro does not contend that there was a trust relationship cognizable only in a court of equity, which would prevent the running of the statute of limitations. It does not contend that there was fraud involving moral turpitude, which would have the effect of applying the statute of limitations as of the time of the discovery of the fraud (Code, § 3-807). It does not contend that there was a valid new promise to pay. The bank’s sole contention is that it had a right to rely on Mr. Hutcheson’s promises to pay the notes involved in this case, under all the circumstances, and that Mr. Hutcheson would have been estopped to plead the statute of limitations, and therefore his executors are estopped to plead it. Mr. Hutcheson was an officer and director of the bank from a point of time long before the notes became barred, until his death. Before the time the notes became barred, the superintendent of banks required that they be charged off, for the reason that past-due notes could not be carried on the books of the bank as current assets. I do not think that Code, § 3-807 covers the question of estoppel to plead the statute. I think it would be a legal fraud for an officer and director of the bank to fail to perform his promises, under the circumstances of this case, if he had prevented the filing of a suit, and presumably assented to the charging off of the notes, which fact put the bank in a position where it was not forced to sue. However, in order for estoppel to be involved, there must be something done or said by the party to be estopped, which was acted on by the other party, under such circumstances that the party sought to be estopped was bound to know that the conduct of the opposite party was induced by his conduct or words. It is not alleged in the present petition that Mr. Hutcheson agreed not to plead or rely on the statute if the notes were not sued, nor is it alleged that the promises to pay the notes were made for the purpose of preventing the filing of the suit on the notes. All the petition says is that the bank relied on the assurances of payment. There is nothing to indicate, except conjecture, that Mr. Hutcheson made the assurances for that purpose, or that he had any reason to suspect that suit was delayed because of his promises to pay. The mere fact that the bank secretly relied on the promises could not create an estoppel. For this reason I concur in the judgment of reversal.