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Injunction. Before Judge Guess. DeKalb Superior Court. September 11, 1956.
HEAD, Justice.
1. Contentions of a party in pleadings, unsupported by evidence, are insufficient to make an issue for consideration by the jury.
2. The contentions of the defendant in his bill of exceptions with reference to usury are not supported by any evidence.
3. The direction of the verdict for attorney's fees on the promissory note was error.
This is the third appearance of the present case in this court. (See Walton v. Johnson, 211 Ga. 12, 83 S. E. 2d 673; and Walton v. Johnson, 212 Ga. 378, 92 S. E. 2d 861, for a statement of the case.) Upon a retrial of the cause, the parties entered into a written stipulation of facts, and the plaintiff testified in his own behalf. The defendant did not introduce any evidence. The court directed a verdict for the plaintiff in the principal amount of $17,028.45, plus interest in the amount of $7,621.63, plus attorney's fees in the amount of $2,179.58. A judgment was duly entered pursuant to the verdict. The defendant filed a bill of exceptions containing eight numbered paragraphs.
In ground 1 of the bill of exceptions, error is assigned on the admission of certain testimony of the plaintiff. It is contended that "this evidence was extremely harmful to Walton for the reason he had alleged in his answer" that a certain policy of insurance was assigned outright, and that he was not, therefore, liable for any payment of premiums subsequent to the assignment; and that the testimony of the plaintiff created an issue which should have gone to the jury.
In ground 2 of the assignments of error, it is asserted that the court erred in refusing to allow the jury to pass on the question as to whether or not there was usury in the note executed by the defendant to the plaintiff. It is alleged that a stated amount was included in the note as principal for premiums paid, and another amount as accrued interest; and it is contended that, under the pleadings and evidence, it was for the jury to say what the consideration was and if the total amount of interest charged was more than the law allows.
In ground 3, it is contended that the admission of certain evidence was harmful to the defendant, "in that in his answer" he had made certain allegations.
In ground 4, the defendant "assigns error on the ruling of the court" in which he "contends [the court] refused to rule" that no consideration was expressed or shown in the written contract, marked Exhibit "c", and "he contends that the $2,500 mentioned therein, was a balance due an architect for drawing the plans" used in constructing an apartment building for a corporation in which the plaintiff and the defendant were the stockholders.
In ground 5, it is insisted that the court erred in refusing to allow the question of the reasonableness of certain attorney's fees, charged by the plaintiff to the defendant, to go to the jury for determination; that the plaintiff testified "that Walton knew what he was being charged as fees, and had consented thereto," but that this did not relieve the plaintiff "of the burden to show that these fees were fair and reasonable in a court of equity," and that his testimony should have been submitted to the jury for a determination of the question.
In ground 6, it is contended that the court erred in its ruling "in which it refused to allow the question as to whether or not Johnson had obtained a one-half interest in the land upon which the Kirkwood Court Apartments were built, from Walton, in a fair and equitable trade. Walton claimed in his pleadings" that he "was entitled to credit therefor."
In ground 7, it is contended that the amount of attorney's fees allowed on the note is in error because, at the time the suit was filed, the total of principal and interest was $14,348.50.
In ground 8, it is asserted that the notice of suit was given in November, 1952, and before any suit was brought the plaintiff foreclosed on the defendant's home, and without making any demand or giving any other notice, brought suit on the note, and that he was therefore barred from recovering any sum as attorney's fees on the note.
1. "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code 110-104.
The assignments of error in the bill of exceptions Nos. 1, 3, 4, 5, and 6 were based on the contentions of the defendant in his pleadings, which contentions were wholly unsupported by any testimony for the defendant. The court did not err in directing a verdict for the principal and interest due the plaintiff. See Blackburn v. Woodward, 128 Ga. 226 (57 S. E. 318); Mayor &c. of Madison v. Spears, 159 Ga. 241 (125 S. E. 380); Bowles v. White, 206 Ga. 343 (57 S. E. 2d 187).
2. Ground 2 of the assignments of error in the bill of exceptions is based on the defendant's contention that the principal note of $16,702 may have a charge of interest amounting to usury therein, because $350.07 of past-due interest was a part of the consideration for the note. The note signed by the defendant to the plaintiff was to bear interest at 6 percent per annum. Usury is the taking of, or contracting to take, a greater rate of interest than 8 percent per annum. There is no contention in the assignment of error that the plaintiff collected a greater rate of interest than 8 percent per annum on his debt. The defendant's contention seems to be that, because the sum of $350.07, past-due interest, was included in the note, the transaction was thereby tainted with usury, on his theory that interest can not be collected on interest.
"The charging of interest on these interest notes when they were past due is said to constitute usury, because interest can not be legally exacted on interest. There is no merit in this contention. Liquidated demands bear interest. Code 57-110. When an obligation to pay interest is put in the form of an interest note, that note becomes a liquidated demand; and when it is not paid at maturity it bears interest as such, certainly if the parties have contracted that it should." Byrd v. Equitable Life Assurance Society, 185 Ga. 628, 640 (196 S. E. 63). The contention that there was some issue pertaining to usury for consideration by the jury is wholly without merit.
3. The burden was on the plaintiff to show a valid notice to the defendant that attorney's fees as provided by the note would be claimed, pursuant to the provisions of Code 20-506, as amended by Ga. L. 1946, pp. 761, 766, and Ga. L. 1953, Jan.-Feb. Sess., pp. 545, 546 (Code, Ann. Supp., 20-506).
It is alleged in paragraph 5 of the petition: "The note of the defendant dated February 3, 1949, being in default, the plaintiff, on the 3rd day of November, 1953, by letter demanded payment and notified the defendant of his intention to file suit for collection of said note including 10% attorneys fees provided therein."
The allegations of the petition are insufficient to meet the requirements of Code 20-506, as amended. This deficiency in the petition is not met by paragraph 1 of the defendant's answer, admitting the allegations of paragraph 5 of the petition, for the reason that paragraph 5 does not allege a compliance with the statute, either before or after amendment. This court has many times stated the requirements of the statute ( 20-506) prior to amendment. See Holcomb v. Cable Co., 119 Ga. 466, 467 (6) (46 S. E. 671); Pritchard v. McCrary, 122 Ga. 606 (50 S. E. 366); Stocking v. Moury, 128 Ga. 414 (57 S. E. 704); Byrd v. Equitable Life Assurance Society, 185 Ga. 628 (5), supra.
"By the terms of Code (Ann. Supp.) 20-506, attorneys fees, for which provision is made in a promissory note, are not collectible unless it be alleged and proved that after maturity the holder of the note notified the person sought to be bound thereon that he had ten days from the receipt of such notice to pay the principal and interest without attorneys fees; . . ." Stone v. Colonial Credit Co., 93 Ga. App. 348, 349 (3) (91 S. E. 2d 835).
Because of the failure of the plaintiff to give a proper notice, the recovery of attorney's fees was unauthorized. Leave is given the plaintiff to write off the attorney's fees within ten days after the filing of the remittitur in the court below, and upon his doing so, the judgment will be affirmed; otherwise a new trial is ordered. See Pritchard v. McCrary, supra.
The defendant having procured a substantial revision of the judgment against him (or a reversal of the judgment, if the direction given is not complied with), it is directed that the costs of the appeal be paid by the plaintiff.
Judgment affirmed, on condition. All the Justices concur.
Henry M. Hatcher, Jr., Johnson, Hatcher & Meyerson, contra.
Jack Broyles, for plaintiff in error.
Saturday May 23 02:08 EDT

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