13 Ga. App. 54 | Ga. Ct. App. | 1913
The petition alleged that the plaintiff was a building and loan 'association, incorporated under the laws of the State of Maryland, and that the defendant was indebted to it upon 43 promissory notes for $30.25 each, being part of a series of 72 notes, all dated Septembef 8, 1908, the first maturing October 8, 1908, and the others maturing the 8th day of each succeeding month respectively for 71 consecutive months thereafter. It was further alleged that payment of the notes was secured by a deed to real estate. Copies of the notes and a copy of the deed were exhibited with the petition. In each note it is recited that the plaintiff is 'a building and loan association, that the defendant is a member or stockholder in the company, and that the note is executed in payment. of dues on stock and interest on a loan. In the deed it is recited that the plaintiff is a building and loan association,' and that the defendant has subscribed for 15 shares of stock, par value of $100 each, and has procured from the company, under its charter and by-laws, an advance or loan of $1,500, and has executed a series of notes corresponding to those described in the petition. It is further recited in the deed that on default in the payment of any of the notes, the company shall have the right to declare the whole debt due. The deed refers also to certain by-laws of the company, providing for the maturity of the stock. The plaintiff prayed for a recovery of a general judgment on the notes, and for a special judgment setting up a lien on the land described in the deed. In each of the notes it is stipulated that the maker agrees to pay all costs "including ten per cent, as attorney’s fees.” In the deed it is stipulated that in the event legal proceedings shall be adopted for the collection of the debt, the maker shall be liable "for ten per cent, on the indebtedness hereby secured, as attorney’s fees.”
The defendant answered, admitting all the allegations in the petition except in that paragraph in which the right to recover attorney’s fees was claimed, but the fact that written notice was given as required by the statute, in order to bind the defendant for the payment of attorney’s fees, was not denied. The defendant further answered that she had paid 29 of the series of notes as set
The trial judge struck the defendant’s answer, and directed a verdict against her for $1,012.75 principal, $101.02 interest, and $111.37 as attorney’s fees, together with all cost, and “in favor of plaintiff’s lien upon the premises described in plaintiff’s petition.” A motion for a new trial, on the general ground that the verdict was contrary to the law and the evidence, was overruled 'and the defendant filed her bill of exceptions assigning error upon the striking of her answer, upon the direction of the verdict, and upon the overruling of the motion for a new trial.
By failing to answer certain paragraphs in the petition, the defendant is held to have admitted them, but the necessary effect of the amendment in which these paragraphs are expressly denied is to withdraw the implied admission resulting from the failure to deny in the first instance. Where, in an original answer, a paragraph is admitted, if the defendant wishes to deny this paragraph in an amendment, the better practice would be to expressly withdraw the admission. Withdrawals by implication, like repeals by implication in statutes, are not favored, but such withdrawals will be allowed where the only reasonable construction to be given the amendment is that the defendant intended to withdraw an admission previously made. This is the only construction which can be given to an amendment which expressly denies an averment previously admitted.
Judgment affirmed.