2020 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 6 - Revival
§ 9-3-110. New Promise to Be in Writing

Universal Citation: GA Code § 9-3-110 (2020)

A new promise, in order to renew a right of action already barred or to constitute a point from which the limitation shall commence running on a right of action not yet barred, shall be in writing, either in the party's own handwriting or subscribed by him or someone authorized by him.

(Ga. L. 1855-56, p. 233, § 25; Code 1863, § 2875; Code 1868, § 2883; Code 1873, § 2934; Code 1882, § 2934; Civil Code 1895, § 3788; Civil Code 1910, § 4383; Code 1933, § 3-901.)

Cross references.

- For provision of statute of frauds relating to promise to revive debt barred by statute of limitations, § 13-5-30(6).

JUDICIAL DECISIONS

Purpose of the writing requirement in O.C.G.A. § 9-3-110 is simply to avoid the uncertainties to which parol evidence is exposed. Siefferman v. Peppers, 159 Ga. App. 688, 285 S.E.2d 61 (1981).

Term "renewal," as applied to promissory notes, means reestablishment of the particular contract for another period of time. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284 (1938).

Considering extrinsic evidence to establish writing's identity.

- When the defendant did not dispute the existence or genuineness of the note or claim that the note did not constitute a settlement of the liability claimed and, indeed, raised the acknowledgement in the defendant's own pleadings, the jury was authorized to consider evidence extrinsic to the writing itself to establish the writing's identity with the underlying right of action. Loftin v. Brown, 179 Ga. App. 337, 346 S.E.2d 114 (1986).

New promise to pay or written acknowledgment of liability may revive or extend original debt. Bingham v. Advance Indus. Sec., Inc., 138 Ga. App. 875, 228 S.E.2d 1 (1976).

Limitation laws do not extinguish rights.

- Although action to recover a debt may be barred by statute of limitations, the debt is not extinguished thereby, as limitation laws act only upon remedies and do not extinguish rights; hence, a writing signed by the defendant, which constitutes a new promise to pay, acts to revive or extend the defendant's liability on the debt. Sinclair Ref. Co. v. Scott, 60 Ga. App. 76, 2 S.E.2d 755 (1939).

Written acknowledgment equivalent to new promise.

- Written acknowledgment of an existing liability is the equivalent of a new promise to pay. National City Bank v. First Nat'l Bank, 193 Ga. 477, 19 S.E.2d 19 (1942).

Written acknowledgment of existing liability is equivalent of a new promise to pay, and constitutes new point from which statute of limitations begins to run. Martin v. Mayer, 63 Ga. App. 387, 11 S.E.2d 218 (1940); Langford v. First Nat'l Bank, 122 Ga. App. 210, 176 S.E.2d 484 (1970).

Distinct admission of a present subsisting debt is such an acknowledgment as will take a case out of statute of limitations. National City Bank v. First Nat'l Bank, 193 Ga. 477, 19 S.E.2d 19 (1942).

Distinct admission of a present subsisting debt is such an acknowledgment as will take a case out of the statute of limitations, and it is not necessary that the party should express oneself willing and able to pay, since a promise is implied from an acknowledgment that a particular debt is still due. Heath v. Wheeler, 234 Ga. App. 606, 507 S.E.2d 508 (1998).

Requirements of written acknowledgment.

- While written acknowledgment of an existing liability is equivalent to a new promise to pay, and like such a promise will renew right of action already barred by statute of limitations or create a new point of departure for the running of the statute, such an acknowledgment must meet two requirements: that it shall in legal effect have been made by the debtor to the creditor, and that it shall sufficiently identify the debt or afford a means of identification with reasonable certainty. Middlebrooks v. Cabaniss, 193 Ga. 764, 20 S.E.2d 10 (1942).

Promise or acknowledgment must be made to creditor.

- Written promise by debtor to pay a debt must be made to creditor or to some one representing the creditor. Carnes v. Bank of Jonesboro, 58 Ga. App. 193, 198 S.E. 338 (1938), aff'd, 187 Ga. 795, 2 S.E.2d 495 (1939).

New promise must identify the debt.

- In order to revive debt barred by statute of limitations by new promise, new promise must so plainly and clearly refer to or describe very debt in question as to identify it with reasonable certainty. Oglesby v. Trust Co., 47 Ga. App. 749, 171 S.E. 393 (1933).

Writing designed to toll statute of limitations must in itself connect debt with promise and sufficiently identify the debt. Duke v. Lynch, 56 Ga. App. 331, 192 S.E. 535 (1937).

When the letters written by the defendant are relied on to create a new promise to pay an existing open account, a promissory note not under seal, which on its face is barred by statute of limitations, such letters must, with reasonable certainty, of themselves connect the debt with the promise, and sufficiently identify the debt; by their words they must acknowledge the particular debt as an existing liability in order to remove bar of the statute. Duke v. Lynch, 56 Ga. App. 331, 192 S.E. 535 (1937); Martin v. Mayer, 63 Ga. App. 387, 11 S.E.2d 218 (1940).

Acknowledgment of indebtedness, to constitute point from which limitation shall commence running, must be in writing and must sufficiently identify the debt or afford the means by which the debt might be identified with reasonable certainty. Hudson v. Sadtler, 100 Ga. App. 232, 110 S.E.2d 706 (1959).

Monthly wire transfer payments from a debtor to a creditor containing notations regarding the debtor's account constituted new promises by the debtor to pay under O.C.G.A. §§ 9-3-110 and9-3-112 and sufficed to renew the running of the four-year statute of limitations, O.C.G.A. § 9-3-25. Because the last payment was made in July 2008, the creditor's suit in March 2012 was not time-barred. SKC, Inc. v. eMag Solutions, LLC, 326 Ga. App. 798, 755 S.E.2d 298 (2014).

Parol acknowledgment or partial payment not sufficient.

- Parol acknowledgment of indebtedness was not sufficient to save account from running of statute of limitations under this section, requiring a writing, nor was mere partial payment sufficient. Murray v. Lightsey, 58 Ga. App. 100, 197 S.E. 870 (1938).

Mere partial payment, in absence of a writing, is not sufficient to revive or extend original debt. Bingham v. Advance Indus. Sec., Inc., 138 Ga. App. 875, 228 S.E.2d 1 (1976).

Written acknowledgment of an existing liability constitutes a new promise to pay which revives debt so as to recommence running of statute of limitations, but mere partial payment, in the absence of such a writing, is not sufficient. Garrett v. Lincoln Cem., 148 Ga. App. 744, 252 S.E.2d 650 (1979).

This section does not apply to a parol promise to devise land. Redford v. Lloyd, 147 Ga. 145, 93 S.E. 296 (1917).

Private memorandum not sufficient.

- Acknowledgment, to relieve bar of statute of limitations, must be made known to some person; a mere private memorandum, unsigned and found after death of the maker, is not sufficient. McLin v. Harvey, 8 Ga. App. 360, 69 S.E. 123 (1910); Mitchell v. Graham, 27 Ga. App. 60, 107 S.E. 373 (1921).

Mere indulgence by creditor not a renewal.

- Mere indulgence for a period, without consideration, made by creditor of estate to executor, is not a contract of extension of payment or renewal; and a mere request by executor for such indulgence, which creditor grants, constitutes no acknowledgment of debt by executor or promise to pay the debt, and therefore does not extend bar created by statute of limitations. Thompson v. Bank of Buckhead, 45 Ga. App. 94, 163 S.E. 255 (1932).

Oral promise made by debtor to creditor to pay an existing debt does not constitute such new promise as constitutes a point from which limitation to sue shall commence running on right of action not barred or as renews a right of action already barred. Carnes v. Bank of Jonesboro, 58 Ga. App. 193, 198 S.E. 338 (1938), aff'd, 187 Ga. 795, 2 S.E.2d 495 (1939).

Verbal agreement plus written check insufficient.

- Allegation that defendants entered into a verbal agreement with plaintiff to revive and extend indebtedness, which verbal agreement was evidenced by a written check was insufficient under this section. Hudson v. Sadtler, 100 Ga. App. 232, 110 S.E.2d 706 (1959).

Notation made on check delivered to creditor constitutes sufficient written acknowledgment when it affords means of identifying debt with reasonable certainty. Garrett v. Lincoln Cem., 148 Ga. App. 744, 252 S.E.2d 650 (1979).

Letters written by defendant to plaintiff within four years prior to bringing action, taken in connection with prior correspondence in which defendant identified account, could be found by jury to show an acknowledgment of the indebtedness together with a promise to pay the same, and consequently petition was not subject to objection that action was barred by statute of limitations. Martin v. Mayer, 63 Ga. App. 387, 11 S.E.2d 218 (1940).

Writing made by debtor and addressed to executors of the debtor's will, acknowledging debt and desiring that the debt be paid from the debtor's estate irrespective of whether it is barred, is insufficient to constitute a new promise which extends or removes bar of statute of limitations. Carnes v. Bank of Jonesboro, 58 Ga. App. 193, 198 S.E. 338 (1938), aff'd, 187 Ga. 795, 2 S.E.2d 495 (1939).

Statute which applies to original demand governs when new promise is proven, with result that an unsealed written acknowledgment or recognition of original obligation under seal revives or extends such obligation for period of time during which a sealed paper would run. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284 (1938).

Statute commences to run from acknowledgment. Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284 (1938).

Agreement extending time of payment of note, signed and acted on by defendant, surety on the note, is binding on the defendant in an action to enforce the note, and the statute of limitations runs from the date of extension by the defendant and not from the original due date. Woolfolk v. Mathews, 54 Ga. App. 694, 188 S.E. 729 (1936).

Law of the forum governs sufficiency of promise. Obear v. First Nat'l Bank, 97 Ga. 587, 25 S.E. 335, 33 L.R.A. 384 (1895).

Cited in Shumate v. Williams, 34 Ga. 245 (1866); Comer & Co. v. Allen, 72 Ga. 1 (1883); Collier v. Georgia Sec. Co., 57 Ga. App. 485, 195 S.E. 920 (1938); Sammons v. Nabers, 186 Ga. 161, 197 S.E. 284 (1938); Exchange Nat'l Bank v. Alford, 187 Ga. 60, 200 S.E. 128 (1938); Barnwell v. Hanson, 80 Ga. App. 738, 57 S.E.2d 348 (1950); Leonard v. Cesaroni, 98 Ga. App. 715, 106 S.E.2d 362 (1958); Willis v. Kemp, 130 Ga. App. 758, 204 S.E.2d 486 (1974); Cleveland Lumber Co. v. Proctor & Schwartz, Inc., 397 F. Supp. 1088 (N.D. Ga. 1975); Bishop v. Valley Holding, Inc., 261 Ga. 390, 404 S.E.2d 779 (1991); Ogden v. Auto-Owners Ins. Co., 251 Ga. App. 723, 554 S.E.2d 575 (2001)(Unpublished).

RESEARCH REFERENCES

Am. Jur. 2d.

- 51 Am. Jur. 2d, Limitation of Actions, §§ 301, 325 et seq.

1 Am. Jur. Pleading and Practice Forms, Abatement, Revival, and Stay, § 130. 8A Am. Jur. Pleading and Practice Forms, Death, § 4.

C.J.S.

- 54 C.J.S., Limitations of Actions, § 308.

ALR.

- Revival of debt barred by statute of limitations by realization on security deposited as collateral, 10 A.L.R. 838.

Payment, acknowledgment, or new promise by mortgagor as tolling statute of limitations as against grantee of mortgaged premises, 101 A.L.R. 337.

Promise by holder of obligation to extend time for payment or not to press for payment as tolling statute of limitations, 120 A.L.R. 765.

Statutory requirement that new promise or acknowledgment must be in writing in order to toll statute of limitation, as applicable where new promise or acknowledgment is supported by a contemporaneous consideration, 135 A.L.R. 433.

Constitutionality, construction, and application of statute modifying or limiting effect of acknowledgment, payment, or other conditions to toll or extend the period of limitation with respect to mortgage foreclosure, 150 A.L.R. 134.

Payment, acknowledgment, or new promise by mortgagor or vendee as tolling, or removing bar of, statute of limitations as against junior encumbrancers or lienors, 150 A.L.R. 331.

Insurer's admission of liability, offers of settlement, negotiations, and the like, as waiver of, or estoppel to assert, contractual limitation provision, 29 A.L.R.2d 636.

Limitation of actions as applied to account stated, 51 A.L.R.2d 331.

Agreement of parties as estopping reliance on statute of limitations, 43 A.L.R.3d 756.

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