96 Ga. 60 | Ga. | 1895
1. Except as controlling those matters which are so essentially local in their nature as to he at all times the subject of special statutory regulation, and which by reason of this peculiar characteristic are embraced within the term “ local idiosynei’asies” of the law, the rules of the common law have been adopted in most of the States of the Union, and the property rights of the citizens of such States have been adjusted with reference to, and the laws governing the same administered in accordance with, its doctrines. This is the reason of the rule, that as to such matters concerning which there is no such recognized variance between the laws of another State, and that law which is the common source of all our jurisprudence, as will afford to the courts of different States a basis for judicial cognizance of such difference, the courts of one State will presume, in the construction of contracts executed and to be performed in another, that the rules of the common law prevail there, and will determine the rights of litigants accordingly. This is a salutary rule, and one which has been adopted in this State (see Woodruff & Co. v. Saul, 70 Ga. 271), and is one of such general acceptance as to be recognized by the courts of last resort in most of the States of the Union. "Wharton on Evidence, vol. 1, section 314 et seq.; 9 Wis. 328; 1 Cowen, 103; 1 Seld. 447; 8 Minn. 13; 10 Ark. 169; 30 Ark. 469; 2 Colo. 596; 12 Ind. 102; 56 Ala. 299.
2. The contract of the indorser is not that he will at
3. The note sued upon in this case was executed in the State of Tennessee, and was made payable to the order of the present defendant, at the city of Chattanooga, in said State! Upon it the defendant made the following indorsement: “I guarantee attorney’s fees up to ten per cent, if this note has to be collected by law, on [and?] its prompt payment”; signed “P. M. Pattillo.” Afterwards suit was brought by the plaintiff', as the holder, upon this note, against the payee alone upon this indorsement as a contract of guaranty, and the defendant answered that if liable at all, his liability was that of an indorser, and not as a guarantor merely, and the holder having failed to demand payment promptly at maturity and give him notice of dishonor, he was therefore discharged. The court ruled the contract of the payee not to be one of indorsement, and a verdict was rendered for the plaintiff'. In order to determine the liability of the payee to the holder, he being the only person against whom this action is brought, it is necessary to inquire what is his true relation to this paper,
In addition to principal and interest, the jury found for the plaintiff a certain amount of attorney’s fees. Treating this as a contract of guaranty and givingtothe plaintiff'the most favorable view that could be taken of it, this finding was wholly unsupported by the evidence. The contract of this indorser was conditioned to pay attorney’s fees, not exceeding ten per cent., which might be incurred by the holder in the collection of the amount due on the note by law. The record was wholly silent as to any expense incurred, or as to the value of the service of any attorney; and therefore it was absolutely necessary, before the plaintiff' could recover upon that account, that he should prove either that he had incurred a certain amount of expense and that it was reasonable and within the limit of ten per cent., or that the service of an attorney for that purpose, within that limit, was reasonably worth the sum sought to be recovered. There was no proof of nor offer to prove either, and the finding of the jury for attorney’s fees was therefore wholly unsupported by the evidence.
We do not deem it necessary or material to inquire further into the commission of any errors alleged as resulting from rulings by the court upon the trial, inas