15 Ga. App. 650 | Ga. Ct. App. | 1915
Gilmer brought suit against Bennett upon a negotiable promissory note, dated February 26, 1912, for $165.50, the note being made payable by Bennett to himself, and indorsed on the back thereof bjr himself and one W. C. Sanders. The plaintiff asked also for judgment for ten per cent, of the amount of principal and interest due on the note, as attorney’s fees, alleging that the ten days notice required by law had been given.
The defendant in his answer admitted the execution of the note and his refusal to pay it, but denied that he owed the amount thereof, and also denied that ten days notice of intention to bring suit thereon had been given him; he alleged that the note was given W. C. Sanders in payment of a premium on a life-insurance policy, and that in November, 1912, he settled the note in full by paying Sanders $82.25 in a cashier’s check; also that there was clue the defendant on the life-insurance policy $48.60 as dividends, for which he had signed-a release to Sanders and for which he had received no benefit. It was also alleged that plaintiff was not a bona fide holder of the note for value.
1. Upon the trial the plaintiff introduced in evidence, without objection, the original note sued on. It being admitted by the de
2. The only evidence as to notice given to the defendant in regard to the plaintiff’s intention to bring suit on the note was the testimony of the plaintiff’s attorney that prior to the filing of the suit he had given to a friend a copy of the notice attached to the petition, with a request that he hand it to the defendant, and the defendant admitted to the witness that this had been done, and also said he had instructed his (the defendant’s) attorney to make no defense as to attorney’s fees. The attorney nowhere in his testimony, however, gave any dates, nor did he say that the notice was given as much as ten days before the last return day as required by law, nor did he say that the defendant admitted receiving the notice more than ten days prior to the filing of the suit. Civil Code, § 4252. In the absence of any positive testimony whatever in support of this material allegation, we think the court erred in directing that the attorney’s fees be included in the verdict. It is therefore ordered that the plaintiff write off the attorney’s fees from the judgment in this case, and, when this is done, that the judgment be affirmed.
Judgment affirmed, with direction.