1 Ga. App. 65 | Ga. Ct. App. | 1907
The plaintiff.in error, who was defendant in the court below, makes two complaints in his bill of exceptions. He laments the untimely death of his pleas at the hand of the executioner, — demurrer, and also protests that the imposition of attorney’s fees by the trial court in his ease places upon him a burden whose weight had not been determined by evidence, and which therefore was not authorized by law. After due inquiry into the merits of both complaints, it is our judgment that this" court can not restore the pleas to life, but-that it should cause a jury to inquire what weight of fees, if any, shall be borne to the lawyer’s coffers.
Boyd sued Brooks in the city court of Atlanta’' on a promissory note, to recover principal, interest, and attorney’s fees. At the appearance term the defendant, Brooks, filed a plea denying indebtedness, and also pleaded that the paper sued on was an Alabama contract, and for that reason he was not liable for attorney’s
Two errors are assigned in the bill of exceptions. The first assignment of error is, that the court erred in sustaining the demurrer of the plaintiff and striking the pleas of defendant; the second is that the court erred in permitting the verdict against the defendant for the full amount of principal, interest, and ten per cent, as attorney’s fees. "We therefore address ourselves to these two propositions. We think that all of the objections to the plea
^Thile “fraud voids all contracts,” a false representation is not necessarily fraudulent. The defendant’s plea alleges that the note was given in part payment for 120 shares of mining stock he bought from plaintiff at $100 per share, and that this stock was the only consideration to support the note. The plea goes on to aver (in subdivision 3) that the plaintiff knew the defendant was purchasing the interest in the mine for a profit, and, to induce him to buy, represented the value of the shares, based on the assets of the company and its earning capacity, to be $104 per share. In subdivision 4 he says he bought the stock relying on ¡olaintiff’s representations, as plaintiff well knew, and that all of those representations were untrue. And in subdivision 5, defendant pleaded that “the value of said stock failed, in that no dividends had been declared on the same, and that the stock had no earning capacity, although plaintiff frequently represented to defendant that large profits
The fourth paragraph of the answer properly raises an issue as to attorney’s fees, and it should not have been stricken. In fact the answer is capable of subdivision. The first portion replies to the plaintiff’s petition, the latter attempts to set up affirmative rights of the defendant. Paragraph 4 is a part of the first portion, which was not demurrable. The plaintiff attached copy note to this petition and alleged that he had served the notice- with reference to attorney’s fees, provided by act of 1900; and in reply, the defendant, while admitting personal service of the notice, neither admitted nor denied the remaining allegations of that paragraph of plaintiff’s petition, and thereby put him to proof. The material portion of the note is: “$1750. Gadsden, Ala., Nov. 21, 1904. On or before November 21, 1905, after date, I promise to pay to Benjamin T. Boyd, or order, seventeen hundred fifty dollars, value received. Negotiable and payable at the Queen City Bank of Gadsden, Ala., With reasonable attorney’s fees for collection if not paid at maturity, with interest from date at 8%.” While the wording of paragraph 4 of the answer is perhaps 'not apt, two issues are raised: first, whether the act of 1900 applies or can apply, under the laws of Alabama, by which the contract must be construed;
Judgment reversed.