Roberts v. Leak , 108 Ga. 806 ( 1899 )

Cobb, J.

1. Where an action is brought on an account, a recovery may be had by proving a special contract, if the terms of the contract can be gathered from the bill of particulars. Roberts v. Harris, 32 Ga. 542; Johnson v. Quin, 51 Ga. 289; Johnson v. Quin, 52 Ga. 485; Schmidt v. Wambacker, 62 Ga. 321. The bill of particulars in the present case was substantially as above indicated.

2. The averments in the original petition and the statements in the bill of particulars attached thereto, taken together, showing that the purpose of the pleader was to bring a suit for an accounting between the parties as to a business extending over several years, consisting of a number of transactions in which they were each interested in the profits, an amendment to the bill of particulars, adding an item of charge against the defendant growing out of the transactions referred to in the original pleading and correcting a mistake in an item of credit allowed the defendant, did not add a new cause of action and was properly allowed.

3. An amendment of the character above referred to related back to the filing of the suit, and the item thus added would not be barred by the statute of limitations unless so barred at the time the suit was filed. Craven v. Walker, 101 Ga. 845, and cases cited.

4. An admission of a party to a case in a pleading filed by him, recognizing a liability in a given amount to his adversary, is such a written acknowledgment of an existing liability as would take the claim thus referred to out of the statute of limitations. McMillan v. Toombs, 74 Ga. 535. In the present case there was no error in holding that the plea of the defendant contained such an admission.

5. There was no error committed in the rulings on the motion to strike certain exceptions filed by the defendant to the auditor’s report, some of which were designated as exceptions of law and others as exceptions, of fact. The rulings on such of the exceptions as properly presented for decision questions of law were free from substantial error, and there was no abuse of discretion in disallowing the exceptions of fact.

6. The charges complained of were not erroneous. There was some evidence to support the verdict of the jury, and no error having been committed by the trial judge which would require the granting of a new trial, his discretion in overruling the motion for a new trial will not be controlled,

7. The court correctly construed the verdict, and the decree entered thereon was proper and legal. Judgment affirmed.

All the Justices concurring.

Exceptions to auditor’s report. Before Judge Reid. City court of Atlanta. September 13, 1898.

E. W. Martin, for plaintiff in error. S. J. Hall, Dorsey, Brewster & Howell, and Arthur Heyman, for defendant.