Green v. Ford , 72 Ga. App. 681 ( 1945 )

1. Where exhibits are specified in the bill of exceptions as material to a clear understanding of the case, and such exhibits are attached to the bill of exceptions, but appear after the certification of the trial judge, and are not identified by him, such exhibits are not properly before this court, and can not be considered.

2. Where a petition or affidavit shows on its face that it is barred by the statute of limitations as to a part of the claim, but sets forth a cause of action as to even a very small portion of the claim, it is error to sustain a demurrer thereto.

DECIDED JULY 12, 1945. This is an action to foreclose a laborer's lien brought in the superior court of Wayne County by J. L. Green, the plaintiff in error, designated hereinafter as plaintiff, against Mrs. G. G. Ford, the defendant in error, designated hereinafter as defendant. The allegations of plaintiff's affidavit are substantially as follows: That on or about the first of January, 1937, he contracted with defendant to cultivate on a share-crop basis the land known as the W. J. and C. C. Withrow place near Screven, Georgia; at the time for entering into said contract, the premises, including fences, were in a very dilapidated condition, and defendant contracted with him to rebuild and repair said premises, and keep them in repair at a stipulated price of not to exceed $50 per year; this to include taking in some new ground and clearing some stumps from said ground, and looking after some cattle on the place. Plaintiff says further that said contract of labor has been completed by him; defendant has sold said premises; plaintiff has made demand for the payment of each year's work in fall thereof, and defendant has put him off, and has not paid him for the work according to the agreement. He alleges further that for eight years he has continuously performed these services for defendant; that he has made demand for payment upon numerous occasions; that defendant has put him off until she has sold the premises; and that she still refuses payment. He says that the product of his labor is agricultural products, such as corn and livestock, which is now located on the premises where he is still living; and that the contract has been in continuous operation for the period of eight years and has been completed by him as of January 1, 1945. He sets forth that there is a balance of $300 due him for the aforesaid labor and asks for the foreclosure of a special lien on the property described and a general lien on any other property found in the county belonging to defendant. Execution instanter was duly issued and the sheriff of the county levied upon certain property specified in the sheriff's return. Defendant filed a counter-affidavit in denial, and also demurred to the affidavit upon the general ground that it set forth no cause of action, and upon the further ground that it shows upon its face that it is barred by the statute of limitations. Plaintiff sought to amend his affidavit; but the amendment was disallowed, and the demurrer was sustained. To these rulings he excepts. 1. Plaintiff's attempted amendment is not properly before the court and can not be passed on for the reason that it appears in the record after the certificate of the trial judge, to the bill of exceptions, and though designated as "Exhibit A," is not properly identified by the trial judge. Code, § 6-806; Caldwell v. Sturdivant, 155 Ga. 590 (118 S.E. 39); Anderson v. American National Ins. Co., 44 Ga. App. 663 (162 S.E. 647).

2. Where one enters into a contract for the performance of services that are not to be performed within one year from the making thereof, the contract must be in writing as required by the statute of frauds. Code, § 20-401 (5). Since there is no showing that the contract was not in writing it will be presumed that the contracting parties met the requirements of the law until the contrary appears. Robinson v. Odom, 35 Ga. App. 263 (133 S.E. 53), and cit.; Harris v. Vallee, 29 Ga. App. 769 (116 S.E. 642); Arrington v. Horton, 48 Ga. App. 272 (172 S.E. 677). However, whether the contract was to be performed from year to year or was a contract to be performed in eight years, it affirmatively appears that payment for each year's labor was payable at the end of each year under the allegations of plaintiff's affidavit wherein he alleges that he made demand for payment in the fall of each year during which he labored under the contract. It appears, therefore, upon the face of the affidavit that plaintiff is barred by the statute of limitations on all claims except the claim for labor performed during the year 1944. The Code, § 67-2401 (2), on the foreclosure of liens on personalty states: "It must be prosecuted within one year after the debt becomes due." While barred as to all claims for years prior to 1944, plaintiff's affidavit did state a cause of action as to that year and the court erred in sustaining the demurrer.

Judgment reversed. Sutton, P. J., and Parker, J., concur.