Adams v. Holland , 101 Ga. 43 ( 1897 )

Little, J.

The facts are set out in the preceding report.

1. The bill of exceptions recites that two pleas which were filed by the defendant, one of set-off and the other of payment, were stricken on demurrer. The two pleas as originally filed were each, by leave of the court, amended; and as amended the plea of payment was, as against a general demurrer, good. The plea of set-off was an imperfect plea and was properly-stricken. An examination of the record shows that the demurrer which was filed by the plaintiff was confined to the plea of set-off, and that the plea of payment was not demurred to, and consequently not stricken. Where there is a conflict between the bill of exceptions and the record as to matters which form a part of the record, the latter will control. Dismuke v. Trammell, 64 Ga. 428, and cases there cited. The record therefore showing that the demurrer went only to the plea of set-off, the plea of payment must be treated as not having been stricken ; and this is true notwithstanding it is recited in the motion for a new trial that the court erred in striking the amended plea of payment and set-off, inasmuch as it appears that the grounds of such motion were not in any manner certified to by the court, other than by approving and certifying the bill of exceptions in the usual form; a general recital appearing in the bill of exceptions, to the effect that, upon written demurrer filed to such pleas and amended pleas, the court sustained the demurrer and ordered the pleas stricken.

2. The suit was on a promissory note executed as a sealed instrument, and was brought before the bar of the statute had attached. The plea of set-off, as amended, contained a statement of a number of items as having been charged to the plaintiff, the last of which was dated August 12, 1882. The suit was filed on the 10th of August, 1895, some thirteen years after the date of the last item of the account which was pleaded as a set-off. The demurrer to the plea of set-off, on the ground that the defendant’s right of action accrued more than four years prior to the time of the filing of such plea, we think was properly sustained. Assuming that the account pleaded as a set-off was based upon a mutual understanding, either express or implied from the conduct of both parties, that they would continue to credit each other until at least one desired to terminate the course of dealing, at which time the balance would be ascertained and then become due, the account in that event is barred by the statute of limitations. It is not to be understood, however, that our ruling goes to the extent of holding that the account pleaded comes under the doctrine of mutual accounts. Whether or not such is the case is a question of fact. Here one party had a promissory note, the other an account; but if the account in this case is to be held a mutual one, and it is to be so treated, as the plea alleges it to be such and the demurrer admits the allegation, the statute begins to run at the date of the last just item entered during the course of the mutual dealing. Civil Code, § 3769; Madden v. Blain, 66 Ga. 49; Flournoy & Epping v. Wooten, 71 Ga. 168. For a full and able discussion of the doctrine, see the case of Gunn v. Gunn, 74 Ga. 555.

3. One of the grounds of the motion for new trial is, because the court erred in refusing to allow the defendant to introduce evidence in said case to prove that she did not owe the note, under her plea of the general issue as filed in said case. The legal effect of this ground is to take an exception to the exclusion or rejection of evidence. The ground does not state the character or nature of the proof which was offered to be made; and therefore this court is unable to say whether, in rejecting the evidence offered, the court did or did not commit error.

4. After the plea of set-off had been stricken, the plea of payment which had been filed was, as we construe the record, before the court. The brief of evidence embodied in the record contains no evidence whatever, except copy of the note sued on by the plaintiff. The plea of payment was therefore wholly unsupported by any evidence ; and being so, the court properly directed a verdict for the plaintiff.

Judgment affirmed.

All the Justices concurring.