John A. Roebling's Sons Co. v. Southern Power Co. , 145 Ga. 761 ( 1916 )

Beck, J.

1. An examination of the statement of facts and the decision appearing in the report of this case when it was here before (143 Ga. 464, 83 S. E. 138, 54 L. E. A. (1915B) 900) shows that the judgment of the court below was reversed upon the ground that certain special demurrers should have been sustained; and that it was decided that the petition stated a cause of action good as against a general demurrer. Consequently, when the remittitur from this court was filed in the court below, the case did not stand dismissed, but remained in court until some further order was taken; and it was competent for the court, upon timely motion by the plaintiffs, to allow an amendment to the petition to meet the special demurrers which in this court had been held to be meritorious.

2. The exception to the ruling of the court refusing to vacate the order allowing time to file amendments to the petition, based on the ground that the court was without jurisdiction to grant such an order after the remittitur from the Supreme Court was filed, was without merit.

3. The contract sued upon in this ease was one for the sale of a certain quantity of wire for electrical transmission, upon terms stipulated in the contract. In the decision in the case when it was here before it was held that, taken as a whole, the suit was for the breach of an implied warranty, and not one for damages for a tort; and when the case was returned to the court below upon the ruling that certain special demurrers which were overruled should have been sustained, the defendant, after amendments were made to meet the special demurrers, demurred generally to the petition, upon the ground that the action was barred by the statute of limitations, it appearing from the petition that “all the material purchased by the plaintiff from the defendant was delivered to the plaintiff not later than March 1, 1907, that plaintiff’s cause of action, if any it had, accrued on said date, March 1, 1907, and that this action was not commenced until more than four years thereafter, to wit, on September 7, 1912.” The court did not err in overruling this ground of general demurrer. While the suit was one for a breach of an implied warranty, it was nevertheless a suit upon a simple contract in writing, and the implied warranty, though not appearing on the face of that contract, is a part thereof, being written into the contract by the law itself; and what the' law writes into a contract is as much a part of the written contract as if expressed therein. 1 Beach on Mod. Con. § 710; 2 Page on Contracts, § 1117 et seq.; Bond v. Perrin, 145 Ga. 200 (88 S. E. 954). This suit, being upon a contract in writing, was not barred before the lapse of six years from the time the cause of action arose. Civil Code, § 4361.

Judgment affirmed.

All the Justices concur, except