12 Ga. App. 253 | Ga. Ct. App. | 1913
The only question raised in this ease is whether a note is such an unconditional contract in writing as that liability for the attorney’s fees therein stipulated can not be questioned unless the defendant’s answer is under oath. The suit was upon a note which contained a promise to pay attorney’s fees of ten per cent, upon principal and interest if the note should-be “given out for collection.” The third paragraph of the petition alleged timely service' upon the defendant of a notice of intention to sue, which fully complied with the statute. The defendant’s answer specifically
This court has uniformly held that the obligation for attorney’s fees in a promissory note is distinct from the obligation to pay the principal and interest there'on, and that wherever liability for attorney’s fees is denied, an issue of fact is presented. The plea of the defendant in the present case properly raised that issue, and the court therefore erred in striking that portion of the defendant’s answer, and in thereafter rendering judgment for attorney’s fees without proof that the notice had been served.
Judgment reversed.