4 Ga. App. 469 | Ga. Ct. App. | 1908
To a suit brought by the Bainbridge State Bank on a promissory note for $2,000, with interest and attorney’s fees thereon, the defendants filed an answer, attempting to set up, by way of recoupment, a claim for $5,000 damages, which they alleged they had sustained by breach of a contract which the plaintiff had made with them to extend the note in question one year. In their answer the defendants averred, that on May 17, 1907, two months before the note in question matured, they made a contract with the duly authorized cashier of the plaintiff corporation (who had full power and authority, by law and by virtue of his office, to make the agreement), by which the bank agreed to extend the maturity of said note from July 17, 1907, to July 17, 1908, in consideration of the sum of $160 to be paid on said note on July 17, 1907, and the further payment of two other notes, for $200-each, more particularly described in the answer. By an amendment the defendants pleaded, as an additional stipulation of the contract and as a consideration moving the bank to the contract to extend the maturity of said note, an agreement that the defendants would not move their deposit account and business, the profits on exchange and from said deposit account being valuable to the bank. The defendants alleged, that the profits on said account amounted to $50, or other large sum, and insisted that as the bank secured this by the agreement to extend the note, the contract was thereby partially performed by them and accepted by the bank, and that for this reason it would be a fraud upon the defendants to permit the bank to avoid the contract. The defendants pleaded, that, relying upon the contract of extension, they expended their ready money in improvements on their plant and thereafter sacrificed enough of their manufactured products to raise the sum of $560 to comply, and were ready to comply, with their part of the con
The plaintiff in this case brought suit on a promissory note. The defendants did not claim any overpayments, or payments by fraud, accident, or mistake, or any reason, arising under the same
We think, therefore, that in the absence of a sufficiently specific amendment to meet the special demurrers directed to the points to which we have called attention, as well as others which we have deemed unnecessary to note, the court was justified in sustaining the special demurrers, and in thereupon striking the plea upon the general demurrer.
5. The plea having been stricken, it was not error to enter judgment by default for the principal and interest and for attorney’s fees. The point especially urged in the brief of counsel for the plaintiffs in error is that the court erred in entering judgment for attorney’s fees, in the absence of any evidence upon that subject; and our decision in Webb v. Simmons, 3 Ga. App. 639 (3), (60 S. E. 334), is cited as authority for this contention. In the Webb case the allegation as to the service of notice of claim for attorney’s fees and liability therefor was denied by the defendant’s answer, and consequently, there being an issue upon this point, a judgment for attorney’s fees could not be rendered in the absence of evidence. In the present case the allegations of the petition as to the attorney’s fees are not denied in the answer or in either of the amendments thereto, and, under the well-settled rule, the averments of the petition upon this subject must be taken as admitted to be true. It is true that the note does not specify the amount of attorney’s fees, nor does it say “reasonable attorney’s fees,” as was the case in Brooks v. Boyd, 1 Ga. App. 66 (6), (60 S. E. 334), but it includes a promise to pay all attorney’s fees if it be collected by law or through an attorney; and the allegations of the petition, that the plaintiff has served each of the defendants with the notice re
Judgment affirmed.