6 Ga. App. 275 | Ga. Ct. App. | 1909
The Savannah Bank & Trust Company brought suit against W. R. Purvis, H. B. Purvis, W. B. Kicldighter, and C. H. Purvis, upon three promissory notes of $1,000 each, made payable to the Glennville Bank and indorsed by it. The- notes were signed on the front “W. R. Purvis,” and on the back of them the following writing appeared: “We or either of us hereby guarantee the payment of the within note after maturity according to its tenor. H. E. Purvis, W. B. Kicldighter, C. H. Purvis.” The notes on their faces were joint and several and promised to pay interest and attorney’s fees. In the petition it is recited that W. R. Purvis was the maker and that the other defendants were “indorser or guarantors and liable as such.” The petition alleged that the statutory notice for the payment of attorney’s fees had been given the defendants, but this paragraph of the petition was denied in the answer. All of the defendants were served, and they filed sworn pleas denying liability. Before the time of the trial W. R. Purvis died, and at the trial term the plaintiff suggested his death of record and took an order that he be stricken from the case and that the action should proceed against the surviving defendants to the extent of their respective liabilities. The plaintiff introduced in evidence the three notes; also a notice addressed to' all of the defendants, notifying them in the statutory form that the suit would be brought and attorney’s fees claimed unless payment were made before return day. Mr. Clay, attorney for the plaintiff, testified that he had mailed a copy of this notice to each of the defendants. He introduced H. S. post-office registry receipts showing that these notices had been deposited in registered mail at Savannah, Georgia, on January 30, 1908; also the return registry' receipts showing that the letters containing the notices wore received by the addressees as follows: by W. P. Kicldighter and H. E. Purvis on February 1; by C. H. Purvis on February 7. The suit was filed on February 11, and therefore the notice to C. H. Purvis was not in time to bind him. It was admitted that the return registry receipts bore the genuine signatures of the addressees. Counsel for the defendant make the point that this testimony, especially so far as it related to the contents of the notices, was secóndary; that the primary evidence was the original notices
The defendants also insist upon the proposition, that the court properly refused to give judgment for the attorney’s fees against any of the defendants; for the reason that when.it appeared that the notice essential to hold C. H. Purvis to liability had not been given, whereby he would be discharged, this fact would also operate to discharge the other defendants; that two of the promisors could not be held liable while a third was discharged; that this would tend to destroy their right of contribution.
The judgment on the main bill of exceptions is reversed, with direction that the court amend the judgment previously rendered, by including a finding for attorney’s fees against the two defendants H. E. Purvis and W. B. Kicklighter. It is further ordered that on the cross-bill of exceptions the judgment be affirmed.