14 Ga. App. 84 | Ga. Ct. App. | 1913
George S. Riley Jr. Company, a corporation, brought suit in the city court against W. C. Jones for $110 principal, besides interest and 10 per cent, attorney’s fees, on a promissory note, which read as follows:
“$110.00. Macon, Ga., April 30, 1913.
“On October 10th after date, I jointly and severally promise to pay Geo. S. Riley Jr. Co., or order, one hundred ten and no/100 dollars, value received, with interest from date at eight per cent, per annum until paid. This note is given for the purchase of the following described personal property, to wit: 1 gray horse mule, 10 or 11 years old; and it is hereby expressly agreed by the parties hereto that the title to said property is not to pass out of said Geo. S. Riley Jr. Co., but is to be and remain in said Geo. S. Riley Jr. Co., or order, until this note is fully paid. And the subscriber hereby agrees to pay the within obligation although the property should die or become damaged or destroyed, whether by accident or otherwise.' If this note is not paid at maturity and is placed in an attorney’s hands for collection, the subscriber agrees, as a part or parcel of this note, to pay ten per centum on the amount of this note, principal and interest, as liquidated damages, and that said amount shall be due and collectible as a part of this agreement. It is expressly understood that the said George S. Riley Jr. Co. does not guarantee the health or soundness of-the within described property. To secure this note, all rights of homestead in realty and exemption of personalty, under the' constitution and laws of this State, are expressly waived as against the same. Witness my hand and seal. W. C. Jones. (L. S.)”
Before the filing of the suit the plaintiff, through its attorney at law, gave the defendant ten days written notice, as required by law, of its intention to sue and claim attorney’s fees. The defendant filed an answer, admitting the execution of the note, but denying the indebtedness; and he asked for a judgment for $500 against the plaintiff by way of recoupment. In this plea and answer he set. up that the mule, for the purchase-price of which the note sued on was given, was bought for, the purpose of being used on his farm as a plow-mule, and that this purpose was known to the plaintiff; that the mule was represented by the plaintiff to be all right in every particular, and free from disease, and at the time of the purchase there was nothing apparently wrong with the mule
When the case was announced ready for trial the defendant tendered the following amendment to his plea: “Now comes the defendant and by leave of the court amends his plea by adding to the end of the first paragraph the following: The plaintiff, through George S. Eiley Jr., procured the defendant to sign the note in question by the false and fraudulent statement that at the time the note in question was made, the said mule was then in sound and healthy condition and free from any disease and infirmity; when, as a matter of fact, it was then suffering from the disease mentioned, known to George S. Eiley Jr. and the said plaintiff, and unknown to the defendant. Said representations were falsely and fraudulently 'made, were known to plaintiff, were believed to be true and relied on by the defendant. . . That the plaintiff is in