8150 | Ga. Ct. App. | Aug 3, 1917
Avery & Company brought suit against Mrs. Ella E. Middlebrooks and her husband, J. M. Middlebrooks, for the principal, interest, and stipulated attorney’s fees of 10 per cent., on four promissory notes, the aggregate principal of which' was $974.74, and the credits on which were $280.44. In addition to certain pleas which weTe disposed of by the decision of the Supreme Court in. this case, as reported in 142 Ga. 830 (83 S.E. 944" court="Ga." date_filed="1914-12-17" href="https://app.midpage.ai/document/avery--co-v-middlebrooks-5580033?utm_source=webapp" opinion_id="5580033">83 S. E. 944), Mrs. Middlebrooks pleaded as follows: “Defendant says that she is not indebted or liable to plaintiff for attorney’s fees on • said notes. Nor is she liable to the plaintiff qn said notes. Defendant further says that the two notes for $265 each sued’ on she was only security on said notes, the same being the contract of her .•husband, J. M. Middlebrooks; that the same is not her contract, but the contract and debt of her husband, J. M. Middlebrooks. Defendant further says that the two notes for $222 each sued on she never signed, nor did she authorize any one to sign for her, that .-the-same is not .her-act-or deed,- and that she is not indebted.to the plaintiff on said notes.” In his plea J. M. Middlebrooks denied liability, denied that he was liable for attorney’s fees, and alleged that the plaintiffs received from him a certain • sawmill and machinery worth $1,000. In his testimony he said: • “Avery & Co. finally got the mill back. If he [they] gave me credit for it, I have never seen it. It was worth $1,000 when he [they] got it back.” On the trial the jury returned the following verdict: “We, the jury, find for the plaintiff against J. M. Middlebrooks, $1,-057.07. April 5; 1915. Wt E. Qresham, foreman.” In their TOO
The verdict in this case is for an amount far in excess of the principal sued for, and there is no mention of interest or attorney’s fees. If the verdict had designated a fixed amount as principal and a certain amount as interest, and the principal were larger than the amount sued for, it would be permissible for the excessive amount to be written off. Rockdale Paper Mills v. Stevens, 65 Ga. 380 (4). In addition to the above: Where the judgment is for one lump sum, including principal and interest, and the amount of each is definitely ascertainable, the finding may be upheld with direction to amend by separating principal and interest (Mitchell v. Henry Vogt Machine Co., 3 Ga. App. 542 (2), 60 S.E. 295" court="Ga. Ct. App." date_filed="1908-02-11" href="https://app.midpage.ai/document/mitchell-v-henry-vogt-machine-co-5602872?utm_source=webapp" opinion_id="5602872">60 S. E. 295), but in the instant ease the verdict is for such an amount as no statement of the facts and no view of them could sustain. It is therefore without evidence to support it, and must be set aside. Giles v. Spinks, 64 Ga. 205 (2); Georgia Railroad & Banking Co. v. Crawley, 87 Ga. 191 (13 S.E. 508" court="Ga." date_filed="1891-05-06" href="https://app.midpage.ai/document/georgia-railroad--banking-co-v-crawley-5564190?utm_source=webapp" opinion_id="5564190">13 S. E. 508); National Fowler Bank v. Burch, 6 Ga. App. 79 (64 S.E. 282" court="Ga. Ct. App." date_filed="1909-04-15" href="https://app.midpage.ai/document/riverside-mills-v-brooks-5603582?utm_source=webapp" opinion_id="5603582">64 S. E. 282).
As a new trial is to be granted for the reason stated above, it is unnecessary to discuss the other assignments of error.
Judgment reversed.