6 Ga. App. 691 | Ga. Ct. App. | 1909
The Farmers and Merchants Bank brought suit against Kelley & Co., a partnership, and the individual members of the partnership, on a promissory note for principal, interest, and attorney’s fees. The defendants, in answer to the suit, admitted the execution of the note sued on and the sendee of the notice to recover attornejr’s fees, but denied that the notice was in statutory form, and denied the plaintiff’s right to recover, because of the following reasons: At the time the note was given, Kelley & Co. pledged to the bank, as collateral security, notes of va
The plaintiff demurred generally and specially to the answer, and the court sustained so much of the demurrer as referred to the-suit for principal and interest, but overruled it as to that part of the answer which denied liability for attorney’s fees.
The defendants except to the judgment sustaining the demurrer as to the principal and interest of the note; and the plaintiff excepts, by cross-bill, to the overruling of the demurrer as to attorney’s fees. At the conclusion of the evidence on the issue as to attorney’s fees, the court directed the jury to find a verdict in favor of the plaintiff, for $87.50, the balance of the principal of the note after crediting thereon the amount that had been col
The evidence submitted to the jury in behalf of the defendants (the plaintiff introducing no evidence on the subject) fully sustains the allegations of the defendants’ answer relating to the solvency of the makers of the collateral notes pledged to the bank, and the ability of the bank, on demand and without suit, to have collected all of these collateral notes that were not paid at maturity, with the exception of the three specified, before the maturity of the note sued on.
There is no merit in any of the exceptions contained in the main bill, except the objection to the direction of a verdict for ten per cent, as attorne3'’s fees on the principal and interest of the note sued on, without any deduction for the amount which should have been collected by the plaintiffs on the collateral notes before the principal note matured. Indeed, learned counsel for plaintiffs in error in the main bill of exceptions rely principally upon the error assigned in the direction of a verdict for attorney’s fees. The statute of this State imposes upon the pledgee of promissory notes or other evidences of debt the duty of exercising ordinary diligence in collecting the same. Civil Code, §2963. The holder of such notes stands in the relation of a trustee for the benefit of the principal debtor; and for any loss which the pledgor suffers as a direct and proximate result of the failure of the pledgee to exercise ordinary diligence in making the collection of the collateral-security notes, the pledgor is entitled to recover. Under the allegations and the proof in this case the jury might well have found that the bank, as pledgee, was .culpable on the question of diligence in the collection of the collateral notes. But it does not appear that this want of diligence resulted in any loss to the pledgor in so far as the collaterals were concerned. The failure to promptly collect these collaterals did not make them less valuable, and therefore there was no loss, in a legal sense, which defendants could set
Judgment m the main hill of exception reversed; on the cross-hill affirmed.