Baskins v. Valdosta Bank & Trust Co. , 5 Ga. App. 600 ( 1909 )

Powell, J.

(After stating the foregoing facts.)

1. The indorsement of the note being undated,' there is a presumption that-it was entered before the maturity of the note; and the burden of proving the contrary was on the defendant. Parr v. Erickson, 115 Ga. 873 (42 S. E. 240) ; Walters v. Palmer, 110 Ga. 776 (36 S. E. 79).

2. Proof that the note was in the possession of the original holders a short while prior to maturity does not carry the burden resting on the defendant of showing that the undated indorsement •was made after maturity. Haug v. Riley, 101 Ga. 372 (29 S. E. 44, 40 L. R. A. 244).

3. Mr. Jones, of the firm of Eoberts & Jones, was president of the plaintiff bank. The defendant’s dealings were with Mr. Eoberts. Notice to Eoberts of the failure of consideration, or ■other infirmity in the note, would be notice to his partner Jones, hut ordinarily would not constitute notice to the corporation of which Jones was an officer, Taylor v. Felder, 3 Ga. App. 287 (59 S. E. 844), and citations. The defendant having failed to carry the burden resting on him, under his attack on the bona tides of the plaintiff’s title to the negotiable instrument, the court ■did not err in directing a verdict, so far as principal and interest are concerned.

4. As to the attorney’s fees, we do not think that the notice given was sufficient to authorize a recovery of them by the plaintiff. Messrs. Woodward & Smith, as attorneys at law, mailed to the defendant a notice calling attention to the fact that his note, "made payable to Eoberts & Jones,” had been placed in their bands for collection; that this notice was given him to hold him liable for attorney’s fees, and that, unless the note was paid, suit would be brought to the next term of the city court of Nashville, ihe return day of which was given. The notice was sufficiently formal, but it did not disclose that the note had been negotiated, •or that the bank was the holder, or that the suit was to be brought by the bank. So far as the notice disclosed, the suit was to be brought by Eoberts & Jones, who were named in the notice. Since the defendant is not to be held for attorney’s fees if he pays before Tetum day, or if he succeeds in the suit, it would be unfair that be should be held liable for attorney’s fees by reason of a notice that indicated that the suit would be brought in behalf of a plaintiff as against whom he had a good defense, when as a matter of fact the suit was brought by an undisclosed third person, against whom be could not set up that defense. The defendant might have been perfectly willing to risk additional liability of attorney’s fees so far as the chances of Eoberts & Jones’ recovery against Mm were -concerned, but not willing to take that risk as to a suit brought by the bank as an -innocent holder of the note he had given Eoberts & Jones. We do not think that the judgment should have included, attorney’s fees, under the circumstances. The judgment is therefore affirmed, with direction that the amount awarded for attorney’s, fees he stricken from the judgment in the trial court, and that the plaintiff in error recover of the defendant in error the costs of' bringing the case to this court.

Judgment affirmed, with direction.