8 Ga. App. 714 | Ga. Ct. App. | 1911
The Mutual Fertilizer Company filed suit in the city court of Statesboro against M. M. Holland upon three promissory notes, alleging that the defendant was indebted thereon in the principal sum of $1,213.77, besides interest, and ten per cent, as attorney’s fees. The defendant filed an answer, admitting the execution and delivery of the notes, and that the plaintiff was legal holder, but denying indebtedness for attorney’s fees and for interest since return day, because of a tender of the principal and interest on return day. Two amendments to this plea were allowed. At the trial term the defendant’s pleas were stricken, on objection, and judgment was rendered for the full amount' of the principal, interest, and' attorney’s fees.
The only question raised by the record is as to the sufficiency of the tender made by the defendant, to relieve him from attorney’s fees; and this presents two questions: (1) whether the tender was itself sufficient, and (2) whether it came too late. It is
It is not denied that at that time suit had not been filed; and though it was on return day, we think that if the actual amount due had been tendered "in money, the defendant would have been relieved from the payment of attorney’s fees. According to the allegation of the amendment to the plea, when the plaintiff’s attorney declined the checks drawn by S. F. Ollif, Miss Alice Zetterower and himself for the amount of his indebtedness, he stated to the defendant that the latter must either bring the money ór a banker’s check for said debt. “The defendant then left said office and drew his own check on the Sea Island Bank of Statesboro, Georgia, in favor of Johnston & Cone [attorneys for the plaintiff], for the full amount of said principal and interest, had the same certified by the cashier of the said bank, and later on the same day, namely June 17, 1909, about 4.30 o’clock p. m., defendant again called at the office of said attorneys and tendered to Mr. Howell Cone, as attorney for plaintiff, the aforesaid certified check, which he declined to accept, although he previously stated to defendant that he must bring either the money or a banker’s check.” It is insisted that this was a good tender because the defendant complied fully with the demand of the plaintiff’s attorney. In determining whether this set up a good defense as a plea of tender, and therefore as to whether the court erred in striking the defendant’s answer, what the defendant omitted to state in response to the plaintiff’s demurrer must be
The exact point seems to have been decided in Harris v. Powers, 129 Ga. '74 (58 S. E; 1038), in which it is said (p. 87) : “The amending act adopted a different scheme, which was' to require notice of an intention to sue to be given at least ten days before suit should be brought, to allow the debtor until return day to pay the debt, and thus to save the creditor the necessity and expense of bringing suit at all. Tf he should voluntarily bring suit before return day, it would be at his own risk of being paid subsequently. To put the construction upon the act of 1900 which is insisted upon by counsel opposing the allowance of fees would make the act in substance conflict with itself. Thus it is required that the notice shall specify the term of the court to which suit will be brought. In order to bring suit to that term according to the notice, it must be brought on the return day at the latest. Tf it is not then brought, it can not be brought to that term, and a new notice would have to be given of a suit to another term. If the debtor is allowed until the last instant of, the return day to make pay
Tint even if the ruling of the trial judge.was not based upon the assumption that the attorney’s fees could not 'be avoided by payment or tender of payment after the filing of suit, we think it was still sound and correct, because the offer of the check, which was certified by the cashier of the bank, was not a legal tender. No matter how> solvent the bank was, and though the bank was obligated by the cashier’s certificate to pay the check when duly presented, a check is not payment until it is itself paid, unless it is agreed to 'be accepted as payment. Civil Code (1895), § 3720. -If the statement of the plaintiff’s counsel that the principal and interest would have to be paid in money or in a banker’s check be construed as such a proposition as would have bound the plaintiff’s attorney in case it had been accepted and acted upon by the defendant,-even then, according to the allegation of the plea, the defendant did not comply with the proposition which was made him, because he did1 not bring either the
The members of this court have only a passing acquaintance with money. We see but little of it, nor see that little long, and hence we' will not attempt to decide that there is any material difference between a banker’s check and a certified check. All checks look alike to us, provided our creditors will áceept them. However, if there is a difference in accord with the popular understapding to which we have referred, the defendant 'did not bring a banker’s check when he brought his own check, certified by the officer of the bank; and from our view of the case, even if the two are the same, the tender came too late, for the suit had already been filed. Judgment affirmed.