Jasper School District v. Gormley

Felton, J.,

dissenting. I am of the opinion that the statute of limitations did not begin to run until a demand was made for payment of the money due by reason of the fact that it was owed to the bank, because the trustees were not in equity and good conscience entitled to retain it. Haupt v. Horovitz, 31 Ga. App. 203 (120 S. E. 425); Poole v. Trimble, 102 Ga. 773 (29 S. E. 871); Patterson v. Blanchard, 98 Ga. 518 (25 S. E. 572); Central Railroad v. First National Bank of Lynchburg, 73 Ga. 383. The cases of Bank of Oglethorpe v. Brooks, Farmers Bank v. Bennett, Knight v. Roberts, and Smalling v. Dunlap, cited in the majority opinion, are not in point, because these actions originated in tort by reason of conversions, and the suits were brought for breach of implied contract upon waiver of the tort. In the instant ease there was no conversion unless the loan was originally made with the intention to make an illegal loan and misapply the money. The case of Thompson v. Central Bank of Georgia was decided upon an obviously different principle of law, as was Shepherd v. Crawford and Mobley v. Murray County. The holding in Justices v. Orr, 12 Ga. 137, cited in Jackson Banking Co. v. Gaston, 149 Ga. 31 (supra), that the statute of limitations would not begin to run until there was money on hand to pay the certificate, applied to a written obligation authorized by law.