52 Ga. App. 526 | Ga. Ct. App. | 1936
In this suit by attorneys on a promissory note, the original plea alleged that, at the time the note was given for services in defending against a damage suit, the defendant, the client, protested as to the amount of the fee, but the attorneys told him the suit would “probably have to be carried through the appellate courts,” and in the event the litigation was not thus prolonged the amount would be fairly prorated in accordance with the amount of services actually performed; that the. client signed the note in the amount provided, with this understanding; that the plaintiff in the damage suit on demurrer being entered, dismissed that action without a trial, and the plaintiffs in this suit on the note did practically no work on the damage suit, only filing a demurrer which was never heard, and an answer making an issue which was never tried; and that because of these facts and the plaintifPs agreement to adjust the fee, which they have refused to do, the consideration has failed, and the defendant is not indebted on the note. By a proffered -amendment the defendant sought to plead that the plaintiffs, while occupying the relationship of attorneys to him, were guilty of fraud in procuring the signing of the note, in that they told him that if he did not sign it all of his property would be taken away by the damage suit, and that the case would have to be fought through the appellate courts. In an additional proffered amendment, the word “probably” qualifying this averment in the original plea was stricken, and it was alleged that the “plaintiffs stated the consideration for the amount of $500 of said note to be their services in filing the demurrers, prosecution of the demurrers, filing pleas and answers, trial of the case, motion for a new trial, prosecution of the motion for a new trial, and the prosecution of an appeal to the appellate courts of Georgia, in the damage suit;” that “defendant executed the note and deed to secure debt, relying on said consideration, each and every part thereof, as represented by plaintiffs;” that “the consideration of said note has failed, because the plaintiffs never rendered services in insisting on the demurrers filed, never tried the case, never prosecuted a motion for new trial, and never prosecuted an appeal to the appellate courts of Georgia in said damage suit;” and that the stated amounts paid on the note were ample payment for all of the services rendered. Portions of the original plea, in paragraph 5(f), in which it was stated that, in the event the litigation was not fought through the
1. With respect to the amendment pleading fraud, if the allegations had shown that the attorneys were in possession of information as to what services would or would not be required in defending the litigation to its final determination, and that while in possession of such knowledge they misled their client by leading him to believe that services would be required which in point of fact they knew would not be necessary, there would be merit in the plea. But where by the plea it is not only manifest that the client knew as well as the attorneys could know that the case might not be appealed to the appellate courts, but it is expressly shown that it was in the minds of the contracting parties that there might not be such an appeal, the effect of the amendment did not strengthen the original plea that the client was informed that the suit would “probably” have to be carried through the appellate courts. There is no allegation that the attorneys did not believe that the case would have to be appealed, despite the fact that all parties recognized that this might not be required; nor is there any allegation going to show that if the client had neglected to defend the damage suit his property would not have been taken away from him, as it is alleged he was informed by the plaintiff attorneys.
2. With regard to the plea of failure' of consideration, counsel for plaintiff in error in a strong brief argues as follows: '“The case at bar is analogous to a state of facts as follows: D gives his note to P in the sum of $100, without stating the consideration, but with the express agreement that P would go to D’s farm, bore a well, reroof the tenant house, erect a cane-mill, and brand his cattle. P goes to IPs farm and bores a well. The note matures, and P sues D for the sum stated in the note. Question: Can D plead and show by parol evidence what the true consideration was, and that it failed? There is no question'in my mind that he could do so. In the hypothesis and in the case at bar, it would be unjust to allow a party to collect a note for services he had failed to render, .for which the note was given. Section 14-305 of the Code of
As was said by Justice McCay, in Boynton v. Twitty, 53 Ga. 214: “It is sometimes difficult to say when th'e parol evidence offered is a mere explanation of the consideration, and when it is an attempt to attach a condition to the contract; and it is hard to reconcile all the cases, for this reason. The line of distinction is often so dim that one -mind sees the case on one side of it, and another mind sees it on the other. Without doubt, you may always, in the case of a promissory note, show by parol what was the true consideration; that is, what the maker got, or the payee suffered or lost, or what was the motive that led to the making of the paper. If this motive was not in law a valid consideration, or has failed, or if the payee has, on his part, violated some undertaking, expressed or implied by the law on his part, so that the consideration has failed, or has proved to be no consideration, then the whole facts may be shown by parol. But if the thing proposed to be proved attaches a condition to the note, as that in a certain event it is not to be paid, or is to be paid at a different time from the time stated, or not to be paid in money, etc., then parol evidence is inadmissible.” Justice Cobb, in Byrd v. Marietta Fertilizer Co., 127 Ga. 30 (56 S. E. 86), used this language: "It is undoubtedly the general rule that the consideration of a contract can always be inquired into where the controversy is between the original parties. But is this an effort to inquire into the consideration? Where the promise as stated in the writing is admitted, the promisor can show that there was no consideration; or that there was a consideration which has failed wholly or in part, and therefore the promise is no longer supported, and must fail either in whole or in part, according to the facts. But this ease does not involve merely the question of what is the con
■ In the instant case the writing did not state the consideration, but the defendant, as he has a right to do, undertakes to set it up by parol, in order to show a partial failure thereof. In doing so, however, he is not permitted to do aught which impairs the unconditional promise as stated in the writing. If without attacking, but while admitting, the unconditional promise to pay, he can show that the promise as made has failed in whole or in part because the unconditional consideration on which it was based has failed, he may do so. But where the plea shows that a part of the consideration was known to be contingent, and, yet, with full knowledge of such fact, the promise was nevertheless made absolute and unconditional, then and in that event the only way to disclaim liability would be to attack, not the consideration, but the promise itself by making it likewise conditional. This he can not do. Where by the plea all of the services to be subsequently performed, constituting the alleged consideration, are absolutely and unconditionally required (as distinguished from complete performance if required), it is easy enough to see that a failure of any part of such agreed consideration would authorize a plea of partial failure, even though the promise, like the service to be rendered, was unconditional. But where it is plainly shown by the plea itself that it was in the minds of all the contracting parties that some of the consideration was contingent, as being based upon the exigencies of the litigation, and that notwithstanding such knowledge the defendant made his promise absolute and unconditional, the happening of the very contingency forming the basis of the absolute promise to pay would not avoid the promise. Nor can the written promise be changed
The amendments to the plea having been properly disallowed, and the plea having been properly stricken on demurrer, the court did not err in entering judgment for the plaintiffs.
Judgment affirmed.