7 Ga. App. 760 | Ga. Ct. App. | 1910
Daniel Miller Company, a corporation, sued Sheppard on the following writing: “For goods delivered and to be delivered to Fain & Weaver of Edison, Ga., debtor, and for other valuable considerations, the undersigned agrees to pay to Daniel Miller Company, a corporation, á sum not exceeding fifteen hundred dollars as guarantor for any sum or sums that may now be [due or may hereafter become due by said debtor to the said cor
As to the point that the plaintiff had violated the contract of guaranty by extending to the original debtor a credit in excess of the $1,500, and thereby released the guarantor from liability, it is ruled adversely to the contention of the plaintiff in error, in the
3, 4. As to the cross-bill of exceptions: A motion was made in this court to dismiss the writ of error as to the cross-bill of exceptions, on the ground that it was premature; that the judgment excepted to was only interlocutory in character, and that even if a decision had been rendered as claimed by the plaintiff in error in the cross-bill, this would not have been a final disposition of the case, or final as to some material part thereof. We do not think there is any merit in the motion to dismiss. The rule as to the final disposition of a case in the court below which applies to cases brought to this court by main bill of exceptions does not apply to questions made by a cross-bill of exceptions, and whenever the case is to be tried again in the court below, it is the duty of this court to decide all questions made by the cross-bill. Civil Code, §§5527, 5535.
We think the court erred in holding in effect that the plaintiff was not entitled to recover 10 per cent, as attorney’s fees. The right to attorney’s fees upon giving the statutory notice, it seems to us, is expressly promised by the guarantor in his written obligation : “And the said guarantor hereby agrees to pay 10 per cent, in addition to the sum due by said debtor, to cover costs of collection and attorney’s fees.” In other words, the maker of this guaranty said to the guarantee: “Whatever goods you may sell to Eain & Weaver of Edison, Ga., debtors, I will pay, up to $1,500; and in addition to the sum which they, Eain & Weaver, may owe you for goods so furnished, whether it be less than $1,500 or up to $1,500, 1 will also pay 10 per cent, on the amount of that indebtedness as attorney’s fees.” The contract is not to pay in any event only $1,500, this to exclude attorney’s fees, but the contract is to
Judgment affirmed on the main bill of exceptions, and reversed on the cross-bill.